Supreme Court of India
K.T. PLANTATION PVT. LTD. & ANRversusSTATE OF KARNATAKA
- Citation
- 2011 INSC 554
- Decided
- 9 August 2011
- Disposal
- Dismissed
- Bench
- S H KAPADIA
Holding
Section 110 of the Karnataka Land Reforms Act and the 1994 notification are valid, the Acquisition Act is protected by Article 31A and not repugnant to the Land Acquisition Act, and deprivation of property under Article 300A requires a public purpose and justification, with the notification’s non‑laying being a curable defect.
Summary
The case concerned lands in the Roerich estate that were exempted from Karnataka's Land Reforms Act, 1961 under Section 107 for linaloe cultivation. The State Government withdrew this exemption by issuing a notification under Section 110 of the Act in 1994, and later enacted the Roerich and Devika Rani Roerich Estate (Acquisition & Transfer) Act, 1996 to acquire the estate. The petitioners challenged the constitutional validity of Section 110, the 1994 notification, the Acquisition Act, and the interpretation of Article 300A regarding public purpose and compensation. The Court held that Section 110 and the notification are valid, the non‑laying of the notification is a curable defect, and the Acquisition Act is protected by Article 31A and not repugnant to the central Land Acquisition Act. It further clarified that deprivation of property under Article 300A requires a public purpose and, where compensation is not specified, the State must justify its action, and such statutes are amenable to judicial review. All appeals were dismissed.
Issues considered
- Whether Section 110 of the Karnataka Land Reforms Act, 1961, as amended, violates the basic structure by allowing withdrawal of exemption without hearing or reasons.
- Whether the 1994 notification issued under Section 110 is valid despite not being laid before the State Legislature under Section 140.
- Whether the Roerich and Devika Rani Roerich Estate (Acquisition & Transfer) Act, 1996 is constitutionally valid and protected by Article 31A.
- Whether the Acquisition Act is repugnant to the central Land Acquisition Act, 1894, requiring presidential assent under Article 254.
- How Article 300A of the Constitution should be interpreted with respect to public purpose, compensation, and the doctrine of eminent domain.
- Whether the doctrine of excessive delegation of legislative power applies to Section 110.
Legislation cited
- Constitution of Indias. 200, s. 245, s. 246, s. 248, s. 254, s. 300A, s. 318, s. 31A, s. 31B
- General Clauses Act, 1897
- Karnataka Land Reforms Act, 1961s. 104, s. 107, s. 110, s. 122A, s. 140, s. 66-76, s. 72, s. 79-8, s. 798, s. 80
- Land Acquisition Act, 1894
- Roerich and Devika Rani Roerich Estate (Acquisition & Transfer) Act, 1996s. 19A
Subjects
land reformsexemptiondelegated legislationexcessive delegationpublic purposeeminent domainArticle 300Acompensationrule of lawrepugnancyNinth ScheduleArticle 31A
Judgment
[2011] 13 (ADDL) S.C.R. 636
A K.l PLANTATION PVT. LTD. & ANR
V.
STATE OF KARNATAKA
(Civil Appeal No. 6520 of 2003)
AUGUST 9, 2011
B
[S.H. KAPADIA CJI, DR. MUKUNDAKAM SHARMA, K.S.
RADHAKRISHNAN, SWATANTER KUMAR AND ANIL R.
DAVE, JJ.)
C Karnataka Land Reforms Act, 1961 - ss.110 and 140 -
ExemiJtion provisions - Exemption under s. 107 for lands
used for cultivation of Linaloe - Power to withdraw the
exemption uls. 110 - Constitutional validity of s. 110 -
Withdrawal of exemption vide notification dated 08. 03. 1994
D issued under s. 110 - Notification in question not laid before
the Legislature - Validity of the Notification - Held: Power to
withdraw exemption has not been conferred on the State
Government, but evidently retained by the Legislature - The
Legislature's apathy in granting is discernible from the
E language used in sub-section (2) of s.107, which says that no
person shall after the commencement of the Amendment Act
acquire in any manner for the cultivation of Linaloe, land of
an extent which together with the land cultivated by Linaloe,
if any, already held by him exceeds ten units - Legislature,
F therefore, as matter of policy, wanted to give only a conditional
exemption for lands used for Linaloe cultivation and the policy
was to empower the State Government to withdraw the same
especially when the law is that no person can claim exemption
as a matter of right - The legislative will was to make s. 107
subject to s. 110 and not the will of the delegate, hence,
G overriding effect has to be given to s. 110 - The contention
that s. 110 is void due to excessive delegation of legislative
powers, is not acceptable - Further, the Act including s. 110
was placed in IXth Schedule in the year 1965 and, hence,
H 636
K.T. PLANTATION PVT LTD. & ANR. v. STATE OF 637
KARNATAKA
immune from challenge in a court of law - Land used for A
linaloe cultivation would be governed by the provisions of the
Act which is protected under Article 31 B of the Constitution
having been included in the IXth Schedule - The appellant-
company could not have held the land used for the cultivation
of Linaloe on the date of the commencement of the Act - B
Further on withdrawal of exemption vide notification dated
08.03.94 the appellant-company became disentitled to hold
the land - Non-laying of the notification dt. 8. 3. 94 under s. 140
of the Act before the State Legislature was a curable defect
and did not affect the validity of the notification or action taken c
thereunder - No force in the contention that opportunity of
hearing is a pre-condition for exercising powers under s. 11 O
of the Act - No such requirement has been provided under
s.107 or s.110 - Constitution of India, 1950 - Article 318 -
Administrative Law - Delegated legislation.
D
The Roerich and Devika Rani Roerich Estate
(Acquisition & Transfer) Act, 1996 - Constitutional validity of
- Plea of repugnancy between the provisions of the Land
Acquisition Act, 1894 and the Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act- Tenability of - E
Held: Plea is not acceptable - Under Article 254 of the
Constitution, a State law passed in respect of a subject matter
comprised in List Ill would be invalid if its provisions are
repugnant to a law passed on the same subject by Parliament
and that too only if both the laws cannot exist together - If the F
dominant intention of two legislations is different, they cover
different subject matter then merely because the two
legislations refer to some allied or cognate subjects, they do
not cover the same field - The Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act, 1996, primarily G
falls under Entry 18 List JI, since the dominant intention of the
legislature was to preserve and protect Roerichs' Estate
covered by the provisions of the Karnataka Land Reforms
Act, on the State Government withdrawing the exemption in
respect of the land used for linaloe cultivation - The said H
638 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A Acquisition Act. though primarily falls under Entry 18 List JI
incidentally also deals with the acquisition of paintings,
artefacts and other valuable belongings of Roerichs' and,
hence, the Act partly falls under Entry 42 List Ill as well -
Since the dominant purpose of the Act was to preserve and
B protect Roerichs' Estate as part of agrarian reforms, the
inclusion of ancillary measures would not throw the Jaw out of
the protection of Article 31A(1)(a) - On the other hand, the
Land Acquisition Act, 1894 is an Act which fell exclusively
under Entry 42 List Ill and enacted for the purpose of
c acquisition of land needed for public purposes for companies
and for determining the amount of compensation to be made
on account of such acquisition, which is substantially and
materially different from the Acquisition Act whose dominant
purpose is to preserve and protect "estate" governed by
Art.31A(a) read with Art.31A(2)(a)(iii) of the Constitution -
0
Therefore, no assent of the President was required under
Article 254(2) of the Constitution to sustain the impugned
Acquisition Act, which falls under Article 31 A(1 )(a) of the
Constitution - Constitution of India, 1950 - Articles 31A and
E 254(2) - Land Acquisition Act, 1894.
Constitution of India, 1950 - Art. 300A - Exercise of the
power of eminent domain - Scope - Held: Article 300A
proclaims that no person can be deprived of his property save
by authority of Jaw, meaning thereby that a person cannot be
F deprived of his property merely by an executive fiat, without
any specific legal authority or without the support of Jaw made
by a competent legislature - Principles of eminent domain,
as such, is not seen incorporated in Article 300A - Doctrines
- Doctrine of Eminent Domain.
G
Constitution of India, 1950 - Art.300A - Requirement of,
public purpose for depriving a person of his property - :
Payment of compensation to a person who is deprived of his
property - Held: Deprivation of property within the meaning
K of Art. 300A, generally speaking, must take place for public
K.T. PLANTATION PVT. LTD. & ANR v. STATE OF 639
KARNATAKA
purpose 01 public interest - Any law, which deprives a person A
of his private property for private interest. will be unlawful and
unfair and undermines the rule of law and can be subjected
to judicial review - Public purpose is a pre-condition for
deprivation of a person from his property under Article. 300A
and the right to claim compensation is also inbuilt in that B
Article and when a person is deprived of his property the State
has to justify both the grounds which may depend on scheme
of the statute, legislative policy, object and purpose of the
legislature and other related factors - Article 300A does not
prohibit the payment of just compensation when a person is c
deprived of his property - Requirement of public purpose, for
deprivation of a person of his property under Article 300A, is
a pre-condition, but no compensation or nil compensation or
its illusiveness has to be justified by the State on judicially
justiciable standards.
D
Interpretation of Statute - Statute depriving a person of
his property - Scope for judicial review - Held: Statutes are
many which though deprives a person of his properly, have
the protection of Arlicle 30(1A), Article 31A, 318, 31C and
hence immune from challenge under Arlicle 19 or Article 14 E
- On deletion of Article 19(1)(f), the available grounds of
challenge are Arlicle 14, the basic structure and the rule of
law, apart from the ground of legislative competence -
Though the Impugned Act was not included in the IXth
Schedule but since the Act was protected by Article 31A, it F
was immune from challenge on the ground of violation of
Arlicle 14 - Constitution of India, 1950 -Articles 14 and 31A
- The Roerich and Devika Rani Roerich Estate (Acquisition
& Transfer) Act, 1996.
G
Rule of law - Held: Rule of law as a concept finds no
place in Indian Constitution, but has been characterized as a
basic feature of Indian Constitution which cannot be abrogated
or destroyed even by the Parliament and in fact binds the
Parliament - Rule of law as an overarching principle can be
H
640 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R
A applied by the constitutional courts 111 rarest of rare cases,
and can undo laws which are tyrannical, violate the basic
structure of the Indian Constitution, and the cherished norms
of law and justice
Dr. Svetoslav Roerich, a Russia born internationally
8
acclaimed painter and artist, and his wife Mrs. Devika
Rani Roerich owned an Estate in Bangalore covering
470.19 acres, out of which 100 acres were granted to
them by the State Government of Karnataka in the year
1954 for Linaloe cultivation. When the Karnataka Land
C Reforms Act, 1961 came into force, they filed
declarations under Section 66 of the Act before the Land
Tribunal stating that they had no surplus lands to
surrender to the State since the entire area held by them
had been used for the cultivation of Linaloe which was
D exempted under Section 107(1)(vi) of the Land Reforms
Act. Consequently, the Land Tribunal vide order dated
15.03.82 dropped the proceedings .instituted under the
Act against them holding that the land used for cultivation
of Linaloe did not attract the provisions of the Land
E Reforms Act.
Dr. Roerich and Mrs. Devika Rani had no issue and
allegedly some persons associated with the couple, who
had an eye on their properties, including the land used
F for linaloe cultivation, valuable paintings, jewellery,
artefacts etc., began to create documents to grab those
properties. The Chief Secretary of the State of Karnataka
noticing the above facts and circumstances convened a
meeting in the presence of the Director of Archaeology
to take effective and proper steps to preserve the
G paintings, artefacts and other valuables. For that purpose,
they met Smt. Devika Rani and Dr. Roerich and a letter
was handed over to Dr. Roerich on behalf of the State
Government expressing the Government's willingness to
purchase the paintings and other valuables so as to set
H
K.T. PLANTATION PVT LTD. & ANR. v. STATE OF 641
KARNATAKA
up a Roerich Gallery. The State Cabinet also discussed A
about the desirability of acquiring the landed properties
of Roerichs and also for setting up an Art Gallery-cum-
Museum, in public interest. Initially the State issued an
ordinance, namely, the Roerich and Devika Rani Roerich
Estate (Acquisition and Transfer) Ordinance 1992, which B
was sent for the approval of the President of India. In the
meanwhile Roerich couple passed away and the
ordinance was returned to make-sufficient amendments.
After necessary amendments ordinance of 1995 was
issued. The ordinance was returned by the Government c I
of India informing that it had no objection to introduce
legislation as a bill and hence the same with requisite
amendments was placed before the Legislative Assembly
and the Legislative Council. The Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act, 1996 was
0
then passed and subsequently got the assent of the
President on 15.11.96 and was brought into force on
21.11.1996.
Meanwhile, the Deputy Commissioner of the District
had reported that Roerichs had owned 470.19 acres of E
land, out of which they had raised Linaloe cultivation to
the extent of 356.15 acres and the remaining extent of
114.04 acres was agricultural land; that as per the ceiling
provisions of the Land Reforms Act they were entitled to
hold an extent of 54 acres of agricultural land and as . F
such, the excess of 60.04 acres ought to have been
surrendered by them to the Government. The view of the
Law Department was sought for in that respect and the
Law Department stated that the earlier order dated
15.03.82 of the Land Tribunal be re-opened and action G
under Section 67(1) be initiated for resumption of the
excess land. The Deputy Commissioner was requested
to issue suitable instructions to the Tahsildar to place the
matter before the Land Tribunal, for review of the earlier
order dated 15.03.82 by invoking the provisions of H
642 SUPREME COURT REPORTS [2011] 13 (ADDL.) SC R
A Section 122A of the Land Reforms Act. The Deputy
Commissioner had further reported that Dr. Roerich had
sold an extent of 137.33 acres of land on 23.3.1991 to the
first appellant-company 'KTP'; but request for mutation
in respect of those lands had been declined by the local
B officers and the lands stood in the name of late Dr.
Roerich in the Record of Rights.
The Commissioner and Secretary to the Government,
Revenue Department taking note of the said facts sought
the legal opinion of the Department of Law and
C Parliamentary Affairs as to whether valuable lands held
by the late Roerichs could be resumed by the State
before lands changed hands, by withdrawing the
exemption given to the lands used for Linaloe cultivation.
The Department of Law and Parliamentary Affairs opined
D that the exemption given under Section 107 of the Land
Reforms Act, 1961 can be withdrawn by the Government
by issuing a notification as per Section 110 of the Land
Reforms Act and consequently tht. Commissioner a_nd
Secretary to the government proposed to issue a
E notification to that effect for which approval of the
Cabinet was sought for. The Cabinet accorded sanction
in its meeting and the State Government issued
notification Notification No. RD 217 LRA 93 dated 8th
March, 1994 in exercise of powers conferred by Section
F · 110 of the Land Reforms Act, withdrawing the exemption
granted for the lands used for cultivation of Linaloe under
clause (vi) of Sub-section 1 of Section 107 of the Act.
Notification was published in the Government Gazette on
11.03.1994.
G
The Assistant Commissioner thereafter issued a
notice to the first appellant-company 'KTP' to show cause
why 137 .33 acres of land be not forfeited to the
Government.
H
KT PLANTATION PVT LTD. & ANR v STATE OF 643
KARNATAKA
The first appellant-company, through its Managing A
Director, filed a Writ Petition before the High Court
challenging the constitutional validity of the Roerich and
Devika Rani Roerich (Acquisition and Transfer) Act, 1996,
Section 110 of the Karnataka Land Reforms Act, the
notification dated 08.03.1994 issued thereunder and also B
sought other consequential reliefs. The writ petition was
dismissed by the High Court upholding the validity of the
Acquisition Act as well as Section 110 of the Land
Reforms Act and the notification issued thereunder
except in relation to the inclusion of certain members in c
the Board of Directors constituted undet the Acquisition
Act.
Aggrieved, the first appellant-company inter alia
raised the following contentions before this Court under
three major heads:- D
(a) Legal validity of Section 110 of the Karnataka Land
Reforms Act, 1961, the Notification No. RD 217 LRA 93
dated 8th March, 1994 issued by the State Government
thereunder: E
It was contended that the first appellant-Company
had purchased the lands from Roerich couple when those
lands stood exempted from the provisions of the Land
Reforms Act by virtue of Section 107(1)(vi) of the Land F
Reforms Act; that the State Government could not, in
exercise of its powers under Section 110 of the Act, issue
notification dated 08.03.94 to withdraw the exemption
granted by the Legislature which was essentially a
legislative policy; that Section 110 gives unfettered and
unguided power to the Executive to take away the G
exemption granted by the Legislature and hence that
Section is void for excessive delegation of legislative
powers on the State Government; that the respondent
State did not follow the procedure laid down ·in Seation
H
644 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
A 140 of the Act; that laying of notification under Section
140 is not a mere laying but is coupled with a negative/
affirmative resolution of the Legislature; the failure to lay
the notification is an illegality which cannot be cured; that
though the Land Reforms Act was placed in the 9th
B Schedule which saves its provisions from the challenge
of Articles 14, 19 and 31, a challenge to a provision of the
Act for excessive delegation of legislative power is still
available and the Land Reforms Act cannot be protected
by Article 318.
c (b) Constitutional validity of Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act, 1996:
It was contended that the Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act, 1996 does
D not contain any provision for protection of agrarian
reforms and hence not protected by the provisions of
Article 31A and hence not saved from challenges on the
ground of violation of Artic: 0 s 14 and 19 of the
Constitution; that management and protection of land
E used for linaloe cultivation and the preservation of
artefacts, paintings etc. are not part of agrarian reforms;
that the said Act, a State Legislation, is ex-facie repugnant
to the provisions of Land Acquisition Act, 1894, a Central
Legislation and hence void under Article 254(1) due to
F want of Presidential assent; and that the procedure and
the principle for the acquisition of land as well as
determination of compensation, etc., under both the Acts
are contrary to each other and hence the said Act can be
saved only if Presidential assent is obtained under Article
G 254(2) of the constitution.
(c) Claim for enhanced compensation and scope and
content of Article 300A of the Constitution:
It was. contended that the Roerich and Devika Rani
H
K.T. PLANTATION PVT LTD. & ANR. v. STATE OF 645
KARNATAKA
Roerich Estate (Acquisition & Transfer) Act, 1996 does A
not provide for any principle or guidelines for the fixation
of the compensation amount and the amount fixed is
illt. .ory, compared to the value of the property taken away
from the first appellant-company in exercise of the
powers of eminent domain; that the inherent powers of B
public purpose and eminent domain are embodied in
Article 300A, and Entry 42 List Ill, "Acquisition and
Requisitioning of Property" which necessarily connotes
that the acquisition and requisitioning of property will be
for a public use and for compensation, as it is the c
legislative head for eminent domain; that the twin
requirements of public purpose and compensation
though seen omitted from Article 300A, but when a
person is deprived of his property, those limitations are
implied in Article 300A as well as Entry 42 List Ill and a D
Constitutional Court can always examine the validity of
the statute on those grounds; and that the action
depriving a person of just and fair compensation is also
amenable to judicial review under Articles 32 and 226 of
the Constitution, which is the quintessence of the rule of
law, otherwise the Constitution would be conferring E
arbitrary and unbridled powers on the Legislature, to
deprive a person of his property.
One 'M' too had filed a writ petition before the High
Court claiming rights over some of the articles belonging F
to Roerichs' couple on the strength of a will. The writ
petition was dismissed by the High Court holding that the
articles claimed by the company 'KTP' stood vested in the
State in view of the Roerich and Devika Rani Roerich
(Acquisition and Transfer) Act, 1996. Against that G
judgment, 'M' filed a separate appeal before this Court.
'M' and others had also challenged the constitutional
validity of the said Acquisition Act by filing Writ Petitions ·
before the High Court, which too wer~ dismissed.
I H
646 SUPREME COURT REPORTS [2011] 13 (ADDL) SC R.
A Aggrieved by the same, they filed another set of civil
Appeals before this Court.
The following questions therefore came up for
consideration before th.is Court:
B (1) Whether Section 11 O of the Karnataka Land
Reforms Act, 1961, as amended by the Karnataka Land
Reforms amendment Act, 1973, (Act 1 of 1974), which
came into effect from 01.03.197 4, read with Section 79 B
of the said Act, introduced by amending Act 1 of 1974,
C violates the basic structure of the Constitution, in so far
as it confers power on the Executive Government, a
delegatee of the Legislature, of withdrawal of exemption
of Linaloe plantation, without hearing and without
reasons;
D
(2) Whether the Roerich and Devika Rani Roerich
(Acquisition and Transfer) Act, 1996 is constitutionally
valid;
(3) Whether on true interpretation of Article 300A of
E the Constitution, the Roerich and Devika Rani Roerich
(Acquisition and Transfer) Act, 1996, is violative of the
said Article in so far as no specific compensation
prescribed for the acquisition of land for Linaloe
plantation, and, after deduction of liabilities and payment
F of compensation for the artefacts, no balance may and/
or is likely to exist for payment of such compensation, as
a result of which, whether the Act really is expropriatory
in nature;
G (4) Whether on true interpretation of Article 300A of
the Constitution, the said Act is violative of Article 300A
as the said Article is not, by itself, a source of Legislative
power, but such power of the State Legislature being
traceable only to Entry 42 of List Ill of Schedule VII to the
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 64 7
KARNATAKA
Constitution viz., "Acquisition and Requisition of A
Property", which topic excludes expropriation and
confiscation of property and
(5) If Article 300A of the Constitution is construed as
providing for deprivation of property without any 8
compensation at all, or illusory compensation, and hence
providing for expropriation and confiscation of property,
whether the said Article would violate the rule of law and
would be an arbitrary and unconscionable violation of
Article 14 of the Constitution, thus violating the basic C
structure of the Constitution.
Dismissing the appeals, the Court
HELD:
D
Validity of Section 110 of the Karnataka Land Reforms Act,
1961 and of the notification dated 8.3.1994 issued by the
State Government thereunder
1.1. The Karnataka Land Reforms Act, 1961 was
enacted by the Karnataka State Legislature to have a E
uniform law relating to land reforms in the State of
Karnataka, relating to agrarian relations, conferment of
ownership on tenants, ceiling on land holdings etc.
Section 798(1) of the Land Reforms Act prohibits holding
of agricultural land by certain persons which says that F
with effect on and from the date of commencement of the
Amendment Act (Act 1/74) w.e.f. 1.3.1974, no person other
than a person cultivating land personally shall be entitled
to hold land; and that it shall not be lawful for, a company
inter a/ia to hold 'any land'. The first appellant being a G
company was prohibited from holding any agricultural
land after the commencement of the Act. If the company
was holding any land with Linaloe cultivation on the date
of the commencement of the Act, the same would have
vested in the State Government under Section 798(3) of H
648 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A the Act and an amount as specified in Section 72 would
have been paid. [Paras 28, 30, 31] [685-F-G; 686-B-C; 687-
B-C]
1.2. Chapter VIII of the Land Reforms Act deals with
exemption provisions. The power to withdraw the
8
exemption in respect of the plantations, has not been
conferred on the State Government, but evidently
retained by the Legislature. Legislative policy is clearly
discernible from the provision of the Statute itself, that,
whenever the Legislature wanted to confer the power to
C withdraw the exemption to the State Government it has
done so, otherwise it has retained the power to itself.
[Para 38] [690-F-H]
1.3. Section 110 of the Land Reforms Act empowers
D the State Government to withdraw the exemption granted
to any land referred to in Sections 107 and 108. Section
107 itself has been made "subject to" Section 110 of the
Act. The words 'subject to' conveys the idea of a
provision yielding place to another provision or other
E provisions to which it is made subject. Since Section 107
is made subject to Section 110, the former section
conveys the idea of yielding to the provision to which it
is made subject that is Section 110 which is the will of
legislature. [Para 39] [691-A-B-D]
F 1.4. The Legislature's apathy in granting exemption
for lands used for cultivation of Linaloe is discernible from
the language used in sub-section (2) of Section 107,
which says that no person shall after the commencement
of the Amendment Act acquire in any manner for the
G cultivation of Linaloe, land of an extent which together
with the land cultivated by Linaloe, if any, already held by
him exceeds ten units. Legislature, therefore, as matter
of policy, wanted to give only a conditional exemption for
lands used for Linaloe cultivation and the policy was to
H empower the State Government to withdraw the same
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 649
KARNATAKA
especially when the law is that no person can claim A
exemption as a matter of right. The legislative will was to
make Section 107 subject to Section 110 and not the will
of the delegate, hence, overriding effect has to be given
to Section 110. Further, the Land Reforms Act including
Section 110 was placed in IXth Schedule in the year 1965 B
and, hence, immune from challenge in a court of law.
[Para 40] [691-H; 692-A-C]
1.5. Dr. Roerich and Mrs. Devika had got only the
conditional exemption from the provisions of the Land C
Reforms Act for the lands used for Linaloe cultivation
and, hence, they also would have lost ownershi.p and
possession of the lands once the exemption had been
withdrawn and the land would have vested in the State.
The land was purchased by the Company with that
statutory condition from Roerichs and, hence, was bound D
by that condition. The contention that Section 110 is void
due to excessive delegation of legislative powers, is
rejected. [Para 41) [692-D-E]
1.6. The State Government issued the notification E
dated 8.3.1994 in exercise of the powers conferred by
Section 110 of the Land Reforms Act which was
published in the official gazette on 11.3.94. 1.9. The facts
would indicate that, in the instant case, the notification
has not been laid before the Legislature, but looking at F
the language of Section 140 of the Act, it has not affected
the validity or the effect of the notification. [Paras 44, 47]
[693-C; 694-B-C]
1.7. Following is the procedure generally followed
when an order or notification is laid before the G
Legislature:-
(1) Laying which requires no further procedure;
(2) Laying allied with the affirmative procedure; and H
650 SUPREME COURT REPORTS (2011] 13 (ADDL ) S.C.R.
A (3) Laying allied with negative procedure.
The object of requirement of laying provided in
enabling Acts is to subject th'e subordinate law making
authority to the vigilance and control of the Legislature.
B The degree of control the Legislature wants can be
noticed on the language used in such laying clause. [Para
46] [693-F-H; 694-A]
1.8. Section 140 of the Act does not require the State
Legislature to give its approval for bringing into effect the
C notification, but a positive act by the Legislature has been
contemplated in Section 140 to make the notification
effective, that does not mean that failure to lay the
notification has affected the legal validity, its effect or the
action taken precedent to that notification. Non-laying of
D the notification dated 08.03.1994 before the State
Legislature has not affected its validity or the action taken
precedent to that notificatior •. This Court now, vide its'
order dated 24.02.2011, has directed the State
Government to place the notification before both the
E Houses of the State Legislature. Therefore, the defect, if
any, of not placing the notification has been cured. [Para
50] [695-H; 696-A-C]
1.9. Section 80 of the Land Reforms Act prohibits
transfer of any land to non-agriculturalist. Section
F 80(1 )(iv), states that it shall not be lawful to sell, gift,
exchange or lease of any land, in favour of a person, who
is disentitled under Section 79·8, to acquire or hold any
•... land. The expression "land" has been defined under
Section 2(18) which is all comprehensive and takes in
G agricultural lands, that is land which is used or capable
of being used for agriculture, but for the exemption
granted under Section 107(1)(vi) lands used for the
cultivation of linaloe would have fallen under Section
2(18). But, so far the company is concerned, the
H prohibition was total and complete since Section 79-8
KT PLANTATION PVT. LTD. & ANR. v. STATE OF 651
KARNATAKA
states that it would not be lawful for a company to hold A
"any land'', with effect and from the date of the
commencement of the amending Act. The Company,
therefore, could not have held the land used for the ·
cultivation of Linaloe on the date of the commencement
of the Act. Further on withdrawal of exemption vide B
notification dated 08.03.94 the Company was disentitled
to hold the land belonging to Roerichs' since the same
would be governed by the provisions of the Land
Reforms Act. [Para 51] [696-D-G]
1.10. There is no force in the contention that C
opportunity of hearing is a pre-condition for exercising
powers under Section 110 of the Act. No such
requirement has been provided under Section 107 or
Section 110. When the exemption was granted to
Roerichs' no hearing was afforded so also when the D
exemption was withdrawn by the delegate. It is trite law
that exemption cannot be claimed as a matter of right so
also its withdrawal, especially when the same is done
through a legislative action. Delegated legislation which
is a legislation in character, cannot be questioned on the E
ground of violation of the principles of natural justice,
especially in the absence of any such statutory
requirement. Legislature or· its delegate is also not legally
obliged to give any reasons for its action while
discharging its legislative function. [Para 52] [696-H; 697- F
A-CJ
1.11. The challenge on the validity of Section 110 of
the Karnataka Land Reforms Act as well as the notification
dt.8.3.1994 is repelled and it is held that the land used for. G
linaloe cultivation would be governed by the provisions
of the Land Reforms Act which is protected under Article
318 of the Constitution having been included in the IXth
Schedule. [Para 53] [697-E]
In re: The Delhi Laws Act, 1912, the Ajmer-Merwara H
652 SUPREME COURT REPORTS (2011] 13 1,ADDL) SC R
A (Extension of Laws) Act. 1947. Part C States (Laws) Act 1950
(1951) 2 SCR 747; Bhatnagars & Co. Ltd. v. Umon of India
AIR 1957 SC 478: 1957 SCR 701; Maharashtra State Board
of Secondary and Higher Secondary Education and Anr. v.
Paritosh Bhupeshkumar Sheth and Others (1984) 4 SCC 27;
B Mohmedalli and Ors. v. Union of India and Ors. AIR 1964 SC
980: 1963 Suppl. SCR 993; Bnj Sunder Kapoor v. I
Additional District Judge and Ors. (1989) 1 SCC 561: 1988
(3) Suppl. SCR 558; Punjab Sikn Regular Motor Service.
Moudhapara, Raipur v. Regional Transport Authority &
C Another AIR 1966 SC 1318: 1966 SCR 221; Joginder Singh
& Others v. Deputy Custodian-General of Evacuee Property
& Others AIR 1967 SC 145: 1962 SCR 738; Bharat Hari
Singhania & Others v. Commissioner of Wealth Tax (Central)
& Others (1994) Supp. 3 SCC 46; Ashok Leyland Ltd. v. State
D of TN. & Another (2004) 3 SCC 1: 2004 (1) SCR 306;
Printers (Mysore) Ltd. v. M A Rasheed & Others (2004) 4
SCC 460: 2004 (3) SCR 799; So :th India Corporation (P)
Ltd. v. Secretary, Board of Revenue, Trivendrum & Another
AIR 1964 SC 207: 1964 SCR 280; Commissioner of Wealth
Tax, Andhra Pradesh, Hyderabad v. Trustees of H.E.H.
E Nizam's Family (Remainder Wealth Trust), Hyderabad (1977)
3 SCC 362: 1977 (3) SCR 735; Chandavarkar Sita Raina
Rao v. Asha/ala S. Guram (1986) 4 SCC 447: 1986 (3) SCR
866; B.K. Srinivasan and Ors. v. State of Kamataka and Ors.
(1987) 1 SCC 658: 1987 (1) SCR 1054; Jan Mohammad
F Noor Mohammad Bagban v. State of Gujarat and Anr. AIR
1966 SC 385: 1966 SCR 505; Atlas Cycle Industries Ltd. &
Others v. State of Haryana (1979) 2 SCC 196: 1979 (1) SCR
1070; Quarry Owners' Association v. State of Bihar & Others
. (2000) 8 SCC 655: 2000 (2) Suppl. SCR 211; State of
G Punjab v. Teha/ Singh and Ors. (2002) 2 SCC 7: 2002 (1)
SCR 27; West Bengal Electricity Regulatory Commission v.
CESC Ltd. etc. etc. (2002) 8 SCC 715; Pune Municipal
Corporation and Anr. v. Promoters and Builders Association
and Anr. (2004) 10 SCC 796: 2004 (2) Suppl. SCR 207;
H
KT PLANl.\TION PVT. LTD. & ANR v STATE OF 653
KARNATAKA
B1/1ar State Electricity Board v. Pulak Enterprises and Ors. A
(2009) 5 sec 641 - referred to
Rajnarain Singh v. The Chairman, Patna Admnistration
Committee. Patna& Another AIR 1954 SC 569: 1955 SCR
290; Vasantlal Maganbha1 San1anwala v. State of Bombay B
and Ors. AIR 1961 SC 4: 1961 SCR 341; Hamdard
Dawakhana (Wakf) Lal Kuan, Delhi & Another v. Union of.
India & Others (1960) 2 SCR 671; Baku/ Cashew Co. and
Ors. v. Sa/es Tax Officer, Qui/on and Anr. (1986) 2 SCC 365:
1986 (1) SCR 610; Income Tax Officer, Alleppy v. M.C. C
Pon noose and Ors. (1969) 2 SCC 351: 1970 (1) SCR 678;
Regional Transport Officer, Chittoor and Ors. v. Associated
Transport Madras (P) Ltd. and Ors. (1980) 4 SCC 597: 1981
(1) SCR 627; Ca0nanore Spinning and Weaving Mills Ltd.
v. Collector of Customs and Central Excise, Cochin and Ors.
(1969) 3 SCC 112: 1970 (2) SCR 830; Hukam Chand etc. v. D
Union of India (UO/) and Ors. (1972) 2 SCC 601: 1973 (1)
seR 896; H.S. Srinivasa Raghavachar and Ors. v. State of
Kamataka and Ors. (1987) 2 sec 692: 1987 (2) SCR 1189;
Municipal Corporation of Delhi v. Bir/a Cotton, Spinning and
Weaving Mills, Delhi and Another AIR 1968 SC 1232: 1968 E
SeR 251; Delhi Cloth & General Mills Ltd. v. Union of India
& Others. (1983) 4 SCC 166: 1983 (3) SCR 438; Premium
Granites and Anr. v. State of Tamilnadu and Ors. (1994) 2
SCC 691: 1994 (1) SCR 579; Registrar of Co-operative
Societies, Trivandrum and Anr. v. Kunjabmu and Ors. (1980) F
1 $CC 340: 1980 (2) SCR 260; Shri Sitaram Sugar Co. Ltd.
and Another v. Union of India and Others (1990) 3 sec 223:
1990 (1) SCR 909; Union of India and Anotherv. Cynamide
India Ltd. and Another Etc. (1987) 2 SCC 720: 1987 (2) SCR
841; H.S.S.K. Niyami & Another v. Union of India & Another G
(1990) 4 sec 516: 1990 (3) SCR 862; Laxmi Khandsari and
Ors. v. State of U.P. and Ors. (1981) 2 SCC 600: 1981 (3)
SCR 92; J. K. Industries & Another v. Union of India & Others
(2007) 13 SCC 673: 2007 (12) SCR 136; Balmadies
H
654 SUPREME COURT REPORTS [2011j 13 (ADDL) S.C.R.
A Plantations Ltd. & Others v. State of Tamil Nadu (1972) 2 SCC
133: 1973 (1) SCR 258; Deputy Commissioner and
Collector, Kamrup & Ors. v. Durga Nath Sharma (1968) 1
SCR 561; Reliance Energy Limited & Anr. v. Maharashtra
State Road Development Corporation Ltd. & Ors. (2007) 8
B SCC 1: 2007 (9) SCR 853; Gram Panchayat of VIiiage
Jamalpur v. Ma/winder Singh & Others (1985) 3 SCC 661:
1985 (2) Suppl. SCR 28; Kaiser-I-Hind Pvt. Ltd. & Another
v. National Textil::; Corporation (Maharashtra North) Ltd. &
Others (2002) 8 SCC 182: 2002 (2) Suppl. SCR 555;
c Engineering Kamgar Union v. Electro Steels Castings Ltd. and
Another (2004) 6 SCC 36: 2004 (1) Suppl. SCR 301;
Bhuwalka Steel Industries Ltd. v. Bombay Iron and Steel
Labour Board and Another (2010) 2 SCC 273: 2009 (16)
SCR 618; P.N. Krishnan Lal & others vs. C?ovt. of Kera/a &
D Another (1995) Suppl. (2) SCC 187: 1994 (5) Suppl. SCR
526; Offshore Holdings Pvt. Ltd. vs. Bangalore Development
Authority and Ors. (2011) 3 sec 139: 2011 (1) SCR 453; E. P
Royappa v. State of Tamil Nadu & Another (1974) 4 SCR 3;
Ramana Dayaram Shetty v. International Airport Authority of
India & Others (1979) 3 SCC 489: 1979 (3) SCR 1014;
E Kasturi Lal Lakshmi Reddy, represented by its Partner Kasturi
Lal, Jammu & Others v. State of Jammu & Kashmir & Another
(1980) 4 SCC 1: 1980 (3) SCR 1338; Chhotabhai Jethabhai
Patel & Co. v. Union of India & Another (1962) Supp (2) SCR
1; State of West Bengal v. Union of India (1964) 1 SCR 371;
F Sub-Committee of Judicial Accountability v. Union of India &
Others (1991) 4 SCC 699; D.C. Wadhwa & Others v. State of
Bihar & Others (1987) 1 SCC 378: 1987 (1) SCR 798;
Glanrock Estate Private Limited. v. State of Tamil Nadu (4010)
10 SCC 96: 2010 (12) SCR 597 and Dwarakadas Shrinivas
G (1954) 1 SCR 674 - cited.
Black Law Dictionary, 5th Edition, at p.1278 - referred
to.
H
KT PLANTATION PVT. LTD. & ANR v. STATE OF 655
KARNATAKA
Constitutional validity of the Roerich and Devika Rani A
Roerich Estate (Acquisition & Transfer) Act, 1996 - Plea
of repuqnancy
2.1. The contention that the Roerich and Devika Rani
Roerich Estate (Acquisition & Transfer) Act, 1996 is
8
invalid due to repugnancy is rejected. [Para 68] [705-C]
2.2. The plea of repugnancy can be urged only if both
the legislations fall under the Concurrent List. Under
Article 254 of the Constitution, a State law passed in
respect of a subject matter comprised in List Ill would be C
invalid if its provisions are repugnant to a law passed on
the same subject by Parliament and that too only if both
the laws cannot exist together. The question of
repugnancy under Article 254 of the Constitution arises
when the provisions of both laws are fully inconsistent D
or are absolutely irreconcilable and it is impossible
without disturbing the other, or conflicting results are
produced, when both the statutes covering the same field
are applied to a given set of facts. Repugnancy between
the two statutes would arise if there is a direct conflict E
between the two provisions and the law made by the
Parliament and the law made by ·the State Legislature
occupies the same filed. [Para 65] [703-C-F]
2.3. When the repugnancy between the Central and
State Legislations is pleaded one has to first examine F
whether the two legislations cover or relate to the same
subject matter. The test for determining the same is to
find out the dominant intention of the two legislations and
if the dominant intention of the two legislations is
different, they cover different subject matter then merely G
because the two legislations refer to some allied or
cognate subjects, they do not cover the same field. A
provision in one legislation to give effect to its dominant
purpose may incidentally be on the same subject as
covered by the provision of the other legislation, but H
656 SUPREME COURT REPORTS (2011] 13 (ADDL) S C.R.
A such partial coverage of the same area in a different
context and to achieve a different purpose does not
bring about the repugnancy which is intended to be
covered by Article 254(2). In other words, both the
legislations must be substantially on the same subject to
B attract Article 254. [Para 66] [703-H; 704-A-D]
2.4. The Roerich and Devika Rani Roerich Estate
(Acquisition & Transfer) Act, 1996, as rightly contended
by the State, primarily falls under Entry 18 List II, since
the dominant intention of the legislature was to preserve
C and protect Roerichs' Estate covered by the provisions
of the Land Reforms Act, on the State Government
withdrawing the exemption in respect of the land used
for linaloe cultivation. The Acquisition Act, though
primarily falls under Entry 18 List II incidentally also deals
D with the acquisition of paintings, artefacts and other
valuable belongings of Roerichs' and, hence, the Act
partly falls under Entry 42 List Ill as well. Since the
dominant purpose of the Act was to preserve and protect
Roerichs' Estate as part of agrarian reforms, the inclusion
E of ancillary measures would not throw the law out of the
protection of Article 31 A(1 )(a). On the other hand, the
Land Acquisition Act, 1894 is an act which fell exclusively
under Entry 42 List Ill and enacted for the purpose of
acquisition of land need·ed for public purposes for
F companies and for determining the amount of
compensation to be made on account of such
acquisition, which is substantially and materially different
from the impugned Act whose dominant purpose is to
preserve and protect "estate" governed by Art.31A(a)
G read with Art.31A(2)(a)(iii) of the Constitution. Therefore,
no assent of the President was required under Article
254(2) of the Constitution to sustain the impugned Act,
which falls under Article 31A(1)(a) of the Constitution.
[Paras 67, 68] [704-F-H; 705-A-C]
H
K.T. PLANTATION PVT. LTD. & ANR. v STATE OF 657
KAR NATAKA
2.5. The the Constitution (17th Amendment) Act, 1964 A
extended the scope of the expression "estate" in
Art.31A(a) as to protect all legislations on agrarian reforms
and the expression "estate" was given a wider meaning
so as to bring within its scope lands in respect of which
provisions are normally made in land reforms B
enactments. Art.31A(2)(a)(iii) brings in any land held or let
for the purpose of agriculture or for purpose ancillary
thereto, including waste or vacant land, forest land, land
for pasture or sites of buildings and other structure
occupied by the cultivators of land etc. [Para 69] [705-D- c
E]
2.6. The concept of agrarian reform is a complex and
dynamic one promoting wider interests than
conventional reorganisation of the land system or
distribution of land, which is intended to realise the social D
function of the land and includes various other proposals
of agrarian reforms. Any provision for promotion of
agriculture or agricultural population is an agrarian
reform, which term is wider than land reforms. A law for
the acquisition of an estate etc. does not lose the E
protection of Article 31 A(1) merely because ancillary
provisions are included in such law. [Para 70] [705-F-H;
706-A-B]
2.7. The Acquisition Act was enacted in public F
interest, to preserve and protect the land used for the
linaloe cultivation and its tree growth as part of agrarian
reforms which is its dominant purpose. Proposal to
preserve the paintings, artefacts, carvings and other
valuables and to establish an Art-Gallery-cum-Museum G
are merely ancillary to the main purpose. The dominant
purpose of the Act is to protect and preserve the land
used for Linaloe cultivation, a part of agrarian reforms.
The Act is, therefore, saved by the provisions of
Art.31A(1 )(a). [Para 71] [706-C]
H
658 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
A 2.8. The Roerich's estate falls within the expression
"estate" under clause (2) of Article 31A of the Constitution
and the Act has obtained the assent of the President,
hence, is protected from the challenge under Articles 14
and 19 of the Constitution of India. [Para 72] (706-E]
B
Deep Chand v. State of U.P. & Others AIR 1959 SC 648:
1959 Suppl. SCR 8; Prem Nath Kaul v. State of Jammu &
Kashmir, AIR 1959 SC 749:(1959) Supp. (2) SCR 270; Ukha
Ko/he v. State of Maharashtra AIR 1963 SC 1531: 1964 SCR
C 926; Bar Council of Uttar Pradesh v. State of U.P & Another
(1973) 1 SCC 261: 1973 (2) SCR 1073; T. Barai v. Henry
Ah Hoe & Another (1983) 1 SCC 177: 1983 (1) SCR 905;
Hoechst Pharmaceuticals v. State of Bihar (1983) 4 SCC 45:
1983 (3) SCR 130; Lingappa Pochanna Appelwar v. State of
Maharashtra & Another (1985) 1 SCC 479: 1985 (2) SCR
D 224; Vijay Kumar Sharma & Others v. State of Kamataka &
Others (1990) 2 SCC 562: 1990 (1) SCR 614; Municipal
Council Palai v. T. J. Joseph (1964) 2 SCR 87; Ch. Tika
Ramji v. State of U.P. 1956 SCR 393; State of Kamataka v.
Shri Ranganatha Reddy (1977) 4 SCC 471: 1978 (1) SCR
E 641; M. Karunanidhi v. Union of India & Another (1979) 3
SCC 431: 1979 (3) SCR 254; State of Kera/a v. Gwalior
Rayon Silk Manufacturing (Wvg.) Co. Limited (1993) 2 SCC
713; Kunjukutty Sahib v. State of Kera/a & Another (1972) 2
SCC 364: 1973 (1) SCR 326; Mahan! Sankarshan
F Ramanuja Das Goswami etc., etc. v. State of Orissa &Another
(1962) 3 SCR 250 - referred to.
Validity of the Acquisition Act on the touchstone of Article
300A of the Constitution - Claim for enhanced
G compensation - Concept of eminent domain - Public
purpose.
3.1. Right to life, liberty and property were once
considered to be inalienable rights under the Indian
Constitution, each one of these rights was considered to
H be inextricably bound to the other and none would exist
KT PLANTATION PVT LTD. & ANR. v. STATE OF 659
KARNATAKA
without the other. Of late, right to property parted A
company with the other two rights under the Indian
Constitution and took the position of a statutory right.
[Para 82) [709-G-H]
3.2. Eminent thinkers like Hugo Grotius, Pufendorf, 8
John Locke, Rousseau and William Blackstone had
expressed their own views on the ri_ght to property.
Lockean rhetoric of property as a natural and absolute
right but conventional in civil society has, its roots in
Aristotle and Aquinas, for Grotius and Pufendorf property C
was both natural and conventional. Pufendrof, like
Grotius, never recognised that the rights of property on
its owners are absolute but involve definite social
responsibilities, and also held the view that the private
property was not established merely for the purpose
"allowing a man to avoid using it in the service of others, D
and to brood in solitude over his hoard or riches." Like
Grotius, Pufendorf recognised that those in extreme need
may have a right to the property of others. For Rousseau,
property was a conventional civil right and not a natural
right and private property right was subordinate to the E
public interest, but Rousseau insisted that it would never
be in the public interest to violate them. With the
emergence of modern written constitutions in the late
eighteenth ce.ntury and thereafter, the right to property
was enshrined as a fundamental constitutional right in F
many of the Constitutions in the world and India was not
an exception. Blackstone declared that so great is the
regime of the law for private property that it will not
authorise the land violation if it - no, not even for the
general good of the whole· community. Writings of the G
above mentioned political philosophers had also its
influence on Indian Constitution as well. [Para 83) [710·
C-G]
3.3. Hugo Grotius is credited with the invention of the H
660 SUPREME COURT RE:.PORTS [2011] 13 (ADDL) S.C.R.
A term "eminent domain" Uus or dominium eminens) which
implies that public rights always overlap with private
rights to property, and in the case of public utility, public
rights take precedence. Grotius sets two conditions on
the exercise of the power of eminent domain: the first
B requisite is public advantage and then compensation
from the public funds be made, if possible, to the one who
has lost his right. Application of the above principle varies
from countries to countries. Germany, America and
Australian Constitutions bar uncompensated takings.
c Canada's constitution, however, does not contain the
equivalent of the taking clause, and eminent domain is
solely a matter of statute law, the same is the situation in
United Kingdom which does not have a written
constitution as also now in India after the 44th
Constitutional Amendment. [Para 84] [710-H; 711-A-C]
0
3.4. Eminent domain is distinguishable alike from the
police power, by which restrictions are imposed on
private property in the public interest, e.g. in connection
with health, sanitation, zoning regulation, urban planning
E and so on from the power of taxation, by which the owner
of private property is compelled to contribute a portion
of it for the public purposes and from the war-power,
involving the destruction of private property in the course
of military operations. The police power fetters rights of
F property while eminent domain takes them away. Power
of taxation does not necessarily involve a taking of
specific property for public purposes, though analogous
to eminent domain as regards the purposes to which the
contribution of the taxpayer is to be applied. Further,
G there are several significant differences between
regulatory exercises of the police powers and eminent
domain of deprivation of property. Regulation does not
acquire or appropriate the property for the State, which
appropriation does and regulation is imposed severally
H and individually, while expropriation applies to an
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 661
KARNATAKA
individual or a group of owners of properties. [Para 90] A
[712-G-H; 713-A]
3.5. The Forty Fourth Amendment Act, 1978 inserted
in Part XII of the Constitution, a new chapter: "Chapter
IV - Right to Property and inserted Article 300A. Article
8
300A proclaims that no person can be deprived of his
property save by authority of law, meaning thereby that
a person cannot be deprived of his property merely by
an executive fiat, without any specific legal authority or
without the support of law made by a competent
legislature. The expression 'Property' in Art.300A C
confined not to land alone, it includes intangibles like
copyrights and other intellectual property and embraces
every possible interest recognised by law. [Paras 105,
11 OJ [718-H; 719-A; 721-B-C]
D
3.6. Principles of eminent domain, as such, is not
seen incorporated in Article 300A. Looking at the history
of the various constitutional amendments, judicial
pronouncements and the statement of objects and
reasons contained in the 44th Amendment Bill which led E
to the 44th Amendment Act there is no doubt that the
intention of the Parliament was to do away with the
fundamental right to acquire, hold and dispose of the
property. [Paras 115, 116] [723-G-H; 724-E]
3.7. Deprivation of property within the meaning of F
Art.300A, generally speaking, must take place for public
purpose or public interest. The concept of eminent
domain which applies when a person is deprived of his
property postulates that the purpose must be primarily
public and not primarily of private interest and merely G
incidentally beneficial to the public. Any law, which
deprives a person of his private property for private
interest, will be unlawful and unfair and undermines the
rule of law and can be subjected to judicial review. The
concept of public purpose has been given fairly H
662 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A expansive meaning which has to be justified upon the
purpose and object of statute and the policy of the
legislation. Public purpose is, therefore, a condition
precedent, for invoking Article 300A. [Para 117] [724-G-H;
725·A·B]
B
3.8. The requirement of public purpose is invariably
the rule for depriving a person of his property, violation
of which is amenable to judicial review. After the 44th
Amendment Act, 1978, the constitutional obligation to pay
compensation to a person who is deprived of his
C property primarily depends upon the terms of the statute
and the legislative policy. Article 300A, however, does not
prohibit the payment of just compensation when a person
is deprived of his property. [Para 118] [725-C-F]
D 3.9. Entry 42 List Ill, Schedule VII of the Constitution
has used the words "acquisition" and "requisitioning".
Right to claim compensation cannot be read into the
legislative Entry 42 List Ill. Requirement of public
purpose, for deprivation of a person of his property under
E Article 300A, is a pre-condition, but no compensation or
nil compensation or its illusiveness has to be justified by
the state on judicially justiciable standards. The right to
claim compensation or the obligation to pay, though not
expressly included in Article 300A, it can be inferred in
F that Article and it is for the State to justify its stand on
justifiable grounds which may depend upon the
legislative policy, object and purpose of the statute and
host of other factors. [Paras 119, 121] [725-G-H; 727·8·
D]
G 3.10. While enacting Article 300A Parliament has only
borrowed Article 31(1) [the "Rule of law" doctrine] and not
Article 31 (2) [which had embodied the doctrine of
Eminent Domain]. Article 300A enables the State to put
restrictions on the right to property by law. That law has
H to be reasonable. It must comply with other provisions
K.T PLANTATION PVT LTD. & ANR. v. STATE OF 663
KARNATAKA
of the Constitution. The limitation or restriction should A
not be arbitrary or excessive or what is beyond what is
required in public interest. The limitation or restriction
must not be disproportionate to the situation or
excessive. The legislation providing for deprivation of
property under Article 300A must be "just, fair and B
reasonable" as understood in terms of Articles 14,
19(1 )(g), 26(b), 301, etc. Thus in each case, courts will
have to examine the scheme of the impugned Act, its
object, purpose as also the question whether payment
of nil compensation or nominal compensation would c
make the impugned law unjust, unfair or unreasonable
in terms of other provisions of the Constitution as
indicated above. There is a difference between "no"
compensation and "nil" compensation. A law seeking to
acquire private property for public purpose cannot say
0
that "no compensation shall be paid". However, there
could be a law awarding "nil" compensation in cases
where the State undertakes to discharge the liabilities
charged on the property under acquisition and onus is
on the government to establish validity of such law. In
the latter case, the court in exercise of judicial review will E
test such a law keeping in mind the above parameters.
[Para 122] [727-E-H; 728-A-C]
3.11. Right to property no more remains an
overarching guarantee in our Constitution. Article 300A, F
unlike Articles 31A(1) and 31C, has not made the
legislation depriving a person of his property immune
from challenge on the ground of violation of Article 14 or
Article 21 of the Constitution. [Paras 123, 125] [728-0-E;
729-0] G
3.12. Acquisition of property for a public purpose
may meet with lot of contingencies, like deprivation of
livelihood, leading to violation of Art.21, but that per se
is not a ground to strike down a statute or its provisions.
Plea of unreasonableness, arbitrariness, proportionality, H
664 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R
A etc. always raises an element of subjectivity on which a
court cannot strike down a statute or a statutory
provision, especially when the right to property is no
more a fundamental right. Otherwise the court will be
substituting its wisdom to that of the legislature, which
B is impermissible in our constitutional democracy. [Paras
128, 130] [730-G-H; 732-A-C]
3.13. On facts as well as on law, the impugned Act
got the assent of the President as required under the
proviso to Article 31A(1 ), hence, was immune from
C challenge on the ground of arbitrariness,
unreasonableness under Article 14 of the Constitution.
[Para 133] [733-F]
3.14. Statutes are many which though deprives a
D person of his property, have the protection of Article
30(1A), Article 31A, 318, 31C and hence immune from
challenge under Article 19 or Article 14. On deletion of
Article 19(1 (f) the available grounds of challenge are
Article 14, the basic structure and the rule of law, apart
E from the ground of legislative competence. [Para 134]
[733-G-H]
3.15. The Acquisition Act has not been included in the
IXth Schedule but since the Act is protected by Article
31A, it is immune from the challenge on the ground of
F violation of Article 14. Rule of law as a concept finds no
place in our Constitution, but has been characterized as
a basic feature of our Constitution which cannot be
abrogated or destroyed even by the Parliament and in
fact binds the Parliament. Rule of law affirms parliament's
G supremacy while at the same time denying it sovereignty
over the Constitution. [Paras 135, 136] [734-C-E]
3.16. Rule of law can be traced back to Aristotle and
has been championed by Roman jurists; medieval natural
H law thinkers; Enlightenment philosophers such as
1 K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 665
I KARNATAKA
Hobbes, Locke, Rousseau, Montesquieu, Dicey etc. Rule A
of law has also been accepted as the basic principle of
Canadian Constitution order. The Canadian Constitution
and Courts have considered the rule of law as one of the
"basic structural imperatives" of the Constitution. Courts
in Canada have exclusively rejected the notion that only B
"provisions" of the Constitution can be used to strike
down legislation and comes down squarely in favour of
the proposition that the rule of law binds legislatures as
well as governments. [Paras 137, 139] [734-F-G; 736-D]
3.17. Rule of law as a principle contains no explicit
c
substantive c:.:riponent like eminent domain but has
many shades and colours. Violation of principle of
natural justice may undermine rule of law resulting in
arbitrariness, unreasonableness etc., but such violations
may not undermine rule of law so as to invalidate a D
statute. But once the Court finds, a Statute, undermines
the rule of law which has the status of a constitutional
principle like the basic structure, the above grounds are
also available and not vice versa. Rule of law as a
principle, is not an absolute means of achieving the E
equality, human rights, justice, freedom and even
democracy and it all depends upon the nature of the
legislation and the seriousness of the violation. Rule of
law as ,an overarching principle can be applied by the
constitutional courts, in rarest of rare cases, and can F
undo laws which are tyrannical, violate the basic
structure of our Constitution, and our cherished norms
of law and justice. One of the fundamental principles of
a democratic society inherent in all the provisions of the
Constitution is that any interference with the peaceful G
enjoyment of possession should be lawful. [Paras 140,
141] [736-E-H; 737-A-B]
3.18. Let the message, therefore, be loud and clear,
that rule of law exists in this country even when one H
666 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A interprets a statute, which has the blessings of Article
300A. Deprivation of property may also cause serious
concern in the area of foreign investment, especially in
the context of International Law and international
investment agreements. Whenever, a foreign investor
B operates within the territory of a host country the investor
and its properties are subject to the legislative control of
the host country, along with the international treaties or
agreements. Even, if the foreign investor has no
fundamental right, let them know, that the rule of law
c prevails in this country. [Para 142] [737-D-E]
4. The reference is therefore answered as follows: (a)
Section 110 of the Land Reforms Act and the notification
dated 8.3.94 are valid, and there is no excessive
delegation of legislative power on the State Government;
D (b) Non-laying of the notification dt.8.3.94 under Section
140 of the Land Reforms Act before the State Legislature
is a curable defect and it will not affect the validity of the
notification or action taken thereunder; (c) The
Acquisition Act is protected by Article 31 A of the
E Constitution after having obtained the assent of the
President and hence immune from challenge under
Article 14 or 19 of the Constitution; (d) There is no
repugnancy between the provisions of the Land
Acquisition Act, 1894 and the Roerich and Devika Rani
F Roerich Estate (Acquisition & Transfer) Act, 1996, and
hence no assent of the President is warranted under
Article 254(2) of the Constitution; (e) Public purpose is a
pre-condition for deprivation of a person from his
property under Article 300A and the right to claim
G compensation is also inbuilt in that Article and when a
person is deprived of his property the State has to justify
both the grounds which may depend on scheme of the
statute, legislative policy, object and purpose of the
legislature and other related factors and (f) Statute,
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 667
KARNATAKA
depriving a person of his property is, therefore, amenable A
to judicial review. [Para 143] [737-F-H; 738·A·D]
5. The notified authority under the Acquisition Act is
accordingly directed to disburse the amount of
compensation fixed by the Act to the legitimate claimants
8
in accordance with law, which will depend upon the
outcome of the pending litigations between the parties.
Further, it is also ordered that the land acquired be
utilized only for the purpose for which it was acquired.
[Para 144] [738·D·E]
c
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga and Ors. (1952) 1 SCR 889; State of West
Bengal v. Bella Banerjee & Others AIR 1954 SC 170: 1954
SCR 558; State of West Bengal v. Subodh Gopal Bose AIR
1954 SC 92: 1954 SCR 587; Kavalappara Kottarathil D
Kochuni & Others v. State of Madras & Others (1960) 3 SCR
887; P. Vajrave/u Mudaliar v. Special Deputy Collector,
Madras and Another (1965) 1 SCR 614; Union of India v.
Metal Corporation of India Ltd. & Another AIR 1967 SC 637:
1967 SCR 255; State of Gujarat v. Shanti/a/ Mangaldas & E
Others (1969) 1 SCC 509: 1969 (3) SCR 341; Rustom
Cowasjee Cooper v. Union of India (1970) 2 SCC 298: 1971
(1) SCR 512; J.C. Go/aknath and Others v. State of Punjab,
AIR 1967 SC 1643: 1967 SCR 762; His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a & F
Another (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj
Narain (1975) Supp. SCC 1; Jilubhai Nanbhai Khachar &
Others v. State of Gujarat & Another (1995) Supp. 1 SC 596:
1994 (1) Suppl. SCR 807;
State of W B. & Others v. Vishnunarayan & Associates G
(P) Ltd & Another (2002) 4 sec 134: 2002 (2) SCR 557;
State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.
(1959) SCR 379; Hoechst Pharmaceuticals v. State of Bihar
(1983) 4 SCC 45: 1983 (3) SCR 130; State of West Bengal
H
668 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
A & Another v. Kesoram Industries Ltd & Others AIR 2005 SC
1646: 2004 (1) SCR 564; l.R. Coelho(Dead) by LRs. v. State
of Tamil Nadu (2007) 2 SCC 1: 2007 (1) SCR 706; Kunnathat
Thathunni Moopil Nair v. State of Kera/a & Another AIR 1961
SC 552: 1961 SCR 77; Ambika Prasad Mishra v. State of
B UP. & Others (1980) 3 sec 719: 1980 (3) SCR 1159;
Maneka Gandhi v. Union of India & Another 1978 (1) SCC
248: 1978 (2) SCR 621; State of Maharashtra & Another v.
Basantibai Mohan/al Khetan & Others (1986) 2 SCC 516:
1986 (1)-SCR 70; State of A.P. & Others v. Mcdowell & Co.
c & Others (1996) 3 SCC 709: 1996 (3) SCR 721; Union of
India & Another v. G. Ganayutham (1997) 7 SCC 463: 1997
(3) Suppl. SCR 549; Dr. Subramanian Swamy v. Director, CBI
& Others (2005) 2 SCC 317; Khoday Distilleries Ltd & Others
v. State of Karnataka & Others (1996) 10 SCC 304: 1995 (6)
Suppl. SCR 759; Ajay Hasia & Others v. Khalid Mujib
0
Sehravardi & Others (1981) 1 SCC 722: 1981 (2) SCR 79;
Mardia Chemicals Ltd. & Others v. Union of India & Others
(2004) 4 SCC 311: 2004 (3) SCR 982; Malpe Vishwanath
Achraya & Others v. State of Maharashtra & Another (1998)
2 SCC 1: 1997 (6) Suppl. SCR 717 and Ashok Kumar
E Thakur v. Union of India & Others (2008) 6 SCC 1: 2008 (4)
SCR 1 - referred to
Hawaii Housing Authority v. Midkiff, 467 US 229 (1984);
Keio v. City of New London (545 US 469 (2005); In Reference
F Re Manitoba Language Rights (1985) 1 SCR (Supreme
Court of Canada) 721; Re: Resolution to Amend the
Constitution (1981) 1 SCR (Supreme Court of Canada) 753;
OPSEU v. Ontario (A.G.) (1987) 2 SCR (Supreme Court of
Canada) 2 - referred to
G Case Law Reference:
(1951) 2 SCR 747 referred to Para 17,34
1955 SCR 290 cited Para 17
H
K.T. PLANTATION PVT Ll'D. & ANR. v. STATE OF 669
KARNATAKA
1961 SCR 341 cited Para 17 A
(1960) 2 SCR 671 cited Para 17
1986 (1) SCR 610 cited Para 18
1970 (1) SCR 678 cited Para 18
B
1981 (1) SCR 627 cited Para 18
1970 (2) SCR 830 cited Para 18
1973 (1) SCR 896 cited Para 18
1987 (2) SCR 1189 cited Para 22
c
1968 SCR 251 cited Para25
1983 (3) SCR 438 cited Para 25
1994 (1) SCR 579 cited Para 25 D
1980 (2) SCR 260 cited Para 25
1990 (1) SCR 909 cited Para 26
1987 (2) SCR 841 cited Para 26 E
1990 (3) SCR 862 cited Para 26
1981 (3) SCR 92 cited Para 26
2007 (12) SCR 136 cited Para 26
F
1966 SCR 505 referred to Para 27, 48
(1984) 4 sec 21 referred to Para 34
1957 SCR 701 referred to Para 35
G
1963 Suppl. SCR 993 referred to Para 35
1988 (3) Suppl. SCR 558 referred to Para 37
1966 SCR 221 referred to Para 39
H
670 SUPREME COURT REPORTS [2011] 13 (ADDL.) S C.R
A 1962 SCR 738 referred to Para 39
(1994) Supp. 3 sec 46 referred to Para 39
2004 (1) SCR 306 referred to Para 39
2004 (3) SCR 799 referred to Para 39
8
1964 SCR 280 referred to Para 39
1977 (3) SCR 735 referred to Para 39
1986 (3) SCR 866 referred to Para 39
c 1987 (1) SCR 1054 referred to Para 43
1979 (1) SCR 1070 referred to Para 49
2000 (2) Suppl. SCR 211 referred to Para 49, 50
D 2002 (1) SCR 27 referred to Para 52
(20021 s sec 115 referred to Para 52
2004 (2) Suppl. SCR 207 referred to Para 52
E (2009) 5 sec 641 referred to Para 52
(1993) 2 sec 113 referred to Para 56
(1960) 3 SeR 887 referred to Para 56,58,
74,97
F (1965) 1 SeR 614 referred to Para 56,58,
79,99
1973 (1) SCR 258 cited Para 56
1972 (3) SCR 518 referred to Para 56
G
1970 (3) SeR 530 referred to Para 59
(1968) 1 SCR 561 . cited Para 59
2007 (9) SCR 853 cited Para 59
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 671
KARNATAKA
1985 (2) Suppl. SCR 28 cited Para 60 A
2002 (2) Suppl. SCR 555 cited Para 60
2004 (1) Suppl. SCR 301 cited Para 62
2009 (16) SCR 618 cited Para 62
B
1994 (5) Suppl. SCR 526 cited Para 63
2011 (1) SCR 453 cited Para 63
1959 Suppl. SCR 8 referred to Para 65
c
(1959) Supp. (2) SCR 270 referred to Para 65
1964 SCR 926 referred to Para 65
1973 (2) SCR 1073 referred to Para 65
1983 (1) SCR 905 referred to Para 65 D
1983 (3) SCR 130 referred to Para 65,120
1985 (2) SCR 224 referred to Para 65
1990 (1) SCR 614 referred to Para 65 E
1973 (1) SCR 326 referred to Para 65
(1964) 2 SCR 87 referred to Para 66
1956 SCR 393 referred to Para 66
F
1978 (1) SCR 641 referred to Para 66
1979 (3) SCR 254 referred to Para 66
(1962) 3 SCR 250 referred to Para 70
G
(1974) 4 SCR 3 cited Para 74
1978 (2) SCR 621 referred to Para 74
1979 (3) SCR 1014 cited Para 74
H
672 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 1980 (3) SCR 1338 cited Para 74
(1962) Supp (2) SCR 1 cited Para 74
1961 SCR 77 referred to Para 74
(1952) 1 SCR 889 referred to Para 76, 79, 93
B
(1964) 1 SCR 371 cited Para 76
(1991) 4 sec 699 cited Para 76
2007 (1) SCR 706 referred to Para 76
c
1987 (1) SCR 798 cited Para 76
2010 (12) SCR 597 cited Para 76
(1954) 1 SCR 674 cited Para 79
D 1969 (3) SCR 341 referred to Para 79
467 us 229 (1984) referred to Para 89
(545 us 469 (2005) referred to Para 89
E AIR 1954 SC 170 referred to Para 95,112
1954 SCR 587 referred to Para 95
1967 SCR 255 referred to Para 99
1971 (1) SCR 512 referred to Para 100
F
1967 SCR 762 referred to Para 101
1973 (4) sec 225 referred to Para 104
(1975) Supp. sec 1 referred to Para 104
G
1994 (1) Suppl. SCR 807 referred to Para 107
2002 (2) SCR 557 referred to Para 109
(1959) SCR 379 referred to Para 119
H
K.T. PLANTATION PVl LTD. & ANR. v. STATE OF 673
KARNATAKA
2004 (1) SCR 564 referred to Para 1:.!0 A
1980 (3) SCR 1159 referred to Para 126
1986 (1) SCR 70 referred to Para 127
1996 (3) SCR 721 referred to Para 128
B
1997 (3) Suppl. SCR 549 referred to Para 129
.
(2005) 2 sec 317 referred to Para 131
1995 (6) Suppl. SCR 759 referred to Para 131
c
1981 (2) SCR 79 referred to Para 131
2004 (3) SCR 982 referred to Para 131
1997 (6) Suppl. SCR 717 referred to Para 131
2008 (4 ) SCR 1 referred to Para 132 D
(1985) 1 SCR 721 referred to Para 137
(1981) 1 SCR 753 referred to Para 138
(1987) 2 SCR 2 referred to Para 138 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6520 of 2003.
From the Judgment and Order dated 16.07.2002 of the
Division Bench of the High Court of Karnataka in W.P. No. F
32560 of 1996.
WITH
Civil Appeal Nos. 6521-6537 and 6538 of 2003.
T.R. Andhyarujina, D.A. Dave. K.N. Bhat and Basava G
Prabhu S. Patil, Gurukrishna Kumar, S. Sukumar, S.
Sukumaran, Anand Sukumar, Soumik Ghoshal, Akshat
Hansaria, Bhupesh Kumar Pathak, Yashovardhan Roy, Meera
Mathur, P.R. Ramesesh, S.K. Kulkarni, Ankur S. Kulkarni, Vijay
H
674 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Kumar, V.N. Raghupathy, B. Subramanya Prasad, Nikhil
Majithia, Anand Sanjay M. Nuli and Ajay Kumar, M., for the
appearing parties.
The Judgment of the Court was delivered by
B K.S. RADHAKRISHNAN, J. 1. The constitutional validity
of Roerich and Devika Rani Roerich Estate (Acquisition &
Transfer) Act, 1996 (in short the "Acquisition Act"), the legal
validity of Section 110 of the Karnataka Land Reforms Act, 1961
(in short "Land Reforms Act"), the Notification No. RD 217 LRA
C 93 dated 8th March, 1994 issued by the State Government
thereunder and the scope and content of Article 300A of the
Constitution of India, are the issues that have come up for
consideration in these civil appeals.
D 2. We propose to deal with the above issues in three parts.
In Part-I, we will deal with the validity of Section 110 of the Land
Reforms Act and the validity of the notification dated 8.3.1994
and in Part-II, we will deal with the constitutional validity of the
Acquisition Act and in Part-Ill, we will deal with the claim for
E enhanced compensation and the scope of Article 300A of the
Constitution.
PREFACE
3. Dr. Svetoslav Roerich, a Russian born, was an
F internationally acclaimed painter, artist and recipient of many
national and international awards including Padma Bhushan
from the President of India in the year 1961. Smt. Devika Rani
Roerich, grand niece of Rabindranath Tagore had made
valuable contributions and outstanding services to th~ Indian
G Motion Pictures and Film Industry, was known to be the "First
Lady of the Indian Screen". She was awarded Padmashri by
the President of India in the year 1958 and was the recipient
of the first Dada Saheb Phalke Award and the Soviet Land
Nehru Award in the year 1989.
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 675
KARNATAKA [K.S. RADHAKRISHNAN, J.]
4. Dr. Roerich and Mrs. Devika Rani Roerich had owned A
an Estate called Tatgunni Estate covering 470.19 acres at B.M.
Kava! Village of Kengeri Hobli and Manvarthe Kava! Village of
Uttarhalli Hobli, Bangalore South Taluk, out of which 100 acres
were granted to them by the State Government in the year 1954
for Linaloe cultivation vide G.O. dated 16.3.1954 read with B
Decree dated 19.4.1954. When the Land Reforms Act came
into force, they filed declarations under Section 66 of the Act
before the Land Tribunal, Bangalore South Taluk-11 stating that
they had no surplus lands to surrender to the State since the
entire area held by them had been used for the cultivatiOIJ of · c
Lin aloe which was exempted under Section 107(1 )(vi) of the
.. Lan.d 13~forms Act. The Land Tribunal, Bangalore vide order
dated 15.3.82 dropped the proceedings instituted under the Act
against them holding that the land used for cultivation of Linaloe
did not attract the provisions of the Land Reforms Act. D
5. Dr. Roerich, it was stated, had sold 141.25 acres (which
included 100 acres granted by the Government for Lin aloe
cultivation) to Mis K.T. Plantations Pvt. Ltd. (the first appellant
herein, in short 'the Company') by way of a registered Sale
Deed dated 23.3.91 for a sale consideration of Rs.56,65,000/ E
-. It was stated that Mrs. Devika Rani Roerich had also sold an
extent of 223 acres 30 guntas to the Company on 16.2.1992
for a sale consideration of Rs.89,25,000/- by way of an
unregistered sale deed, a transaction disputed by Mrs. Devika
Rani. The Company, however, preferred a suit OS 122/92 for F
a declaration of title and injunction in respect of that land before
the District and Civil Judge, Bangalore which is pending
consideration.
6. The Company sought registration of the sale deed G
dated 16.02.92 before the Sub Registrar, Kingeri, who refused
to register the sale deed. The Company then preferred an
appeal before the District Registrar, but when the appeal was
about to be taken up for hearing, one Mary Joyce Poonacha
who claimed rights over the property on the strength of an H
676 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A alleged will preferred a Writ Petition No.2267 of 1993 before
the Karnataka High Court and a learned Single Judge of the
High Court dismissed the writ petition. On appeal, the Division
Bench confirmed the order, against which she had approached
this Court vide C.A.No.3094 of 1995 and this Court vide its
B judgment dated 18th April, 1995 directed the District Registrar
not to proceed with the matter till the suit is disposed of by the
Civil Court. The judgment is reported in (1995) Suppl. 2 SCC
459.
7. Dr. Roerich and Mrs. Devika Rani had no issue and due
C to old age and other ailments it was reported that they were
staying at Hotel Ashok, Bangalore for a couple of years befor\:! .
their death. It was alleged that some of the persons who were
associated with the couple, had an eye on their properties,
including the land used for linaloe cultivation, valuable paintings,
D jewellery, artefacts etc., and began to create documents to grab
those properties.
8. The Chief Secretary of tfie State of Karnataka noticing
the above facts and circumstances convened a meeting on
E 1.4.92 in the presence of the Director of Archaeology to take
effective and proper steps to preserve the paintings, artefacts
and other valuables. For that purpose, they met Smt. Devika
Rani and Dr. Roerich on 03.04.92 and a letter was handed over
to Dr. Roerich on behalf of the State Government expressing
the Government's willingness to purchase the paintings and
F
other valuables so as to set up a Roerich Gallery. The State
Cabinet in its meeting held on 09.04.92 also discussed about
the desirability of acquiring the landed properties of Roerichs
and also for setting up an Art Gallery-cum-Museum, in public
interest. Following that meeting, the Roerich and Devika Rani
G Roerich Estate (Acquisition and Transfer) Ordinance, 1992
was drafted, but could not be issued.
9. The Deputy Commissioner, Bangalore Rural District
had reported on 26.6.1993 that though Roerichs had owned
H 470.19 acres of land including the land used for Linaloe
K.T. PLANTATION PVT. LTD. & ANR v. STATE OF 677
KARNATAKA [K.S. RADHAKRISHNAN, J.)
cultivation they had filed declarations only to the extent of 429.26 A
acres. Out of the extent of 4 70.19 acres of land owned by them,
they had raised Linaloe cultivation to the extent of 356.15 acres
and the remaining extent of 114.04 acres was agricultural land.
As per the ceiling provisions of the Land Reforms Act they were
entitled to hold an extent of 54 acres of agricultural land. As B
such, the excess of 60.04 acres ought to have been
surrendered by them to the Government. The view of the Law
Department was sought for in that respect and the Law
Department on 18.11.93 stated that the earlier order dated
15.03.82 of the Land Tribunal, Bangalore be re-opened and the c
action under Section 67(1) be initiated for resumption of the
excess land. The Deputy Commissioner was requested to issue
suitable instructions to the Tahsildar, Bangalore South Taluk to
place the matter before the Land Tribunal, for review of the
earlier order dated 15.03.82 by invoking the provisions of D
Section 122A of the Land Reforms Act.
10. The Deputy Commissioner reported that Dr. Roerich
had sold an extent of 137.33 acres of land comprising of survey
nos. 124, 126 of B.M. Kaval and survey No. 12 of Manavarth
Kava I of Bangalore South Taluk on 23.3.1991 to Mis K. T. E
Plantations Private Limited and it was reported that the request
for mutation in respect of those lands was declined by the local
officers and the lands stood in the name of late Dr. Roerich in
the Record of Rights.
F
11. The Commissioner and Secretary to the Government,
Revenue Department taking note of the above mentioned facts
sought the legal opinion of the Department of Law and
Parliamentary Affairs as to whether valuable lands held by the
late Roerichs could be resumed by the State before lands G
changed hands, by withdrawing the exemption given to the
lands used for Linaloe cultivation. The Department of Law and
Parliamentary Affairs in their note No.108:/L/11 /94 dated
1.3.1994 opined that the exemption given under Section 107
of the Land Reforms Act, 1961 can be withdrawn by the
H
678 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Government by issuing a notification as per Section 110 of the
Land Reforms Act. Consequently the Commissioner and
Secretary to the government proposed to issue a notification
to that effect for which approval of the Cabinet was sought for.
The Cabinet accorded sanction in its meeting held on
B 04.03.1994 and the Government issued a notification dated
08.03.1994 in exercise of powers conferred by Section 110 of
· the Land Reforms Act, withdrawing the exemption granted for
the lands used for cultivation of Linaloe under clause (vi) of Sub-
section 1 of Section 107 of the Act. Notification was published
c in the Government Gazette on 11.03.1994.
12. The Assistant Commissioner, Bangalore sub-division
later issued a notice no.LRF:CR 17:93-94 dated 28.03.94 to
the company to show cause why 137.33 acres of land be not
forfeited to the Government, since it had purchased the above
D mentioned lands in violation of Section 80 and 107 of the Land
Reforms (Amendment) Act, 1973. An enquiry under Section 83
of the Land Reforms Act was ordered for violation of the
provisions of the Act. The Company, aggrieved by the above
mentioned notice, filed Writ Petition No.12806/94 before the
E High Court of Karnataka, which was allowed to be withdrawn
giving liberty to the petitioner to take recourse to the remedies
under law. Due to the status quo order passed, by this Court
in these appeals the proceedings pending before the Asst.
Commissioner, Bangalore following the show-cause notice
F dated 28.03.1994 was kept in abeyance.
13. Mary Joyce Poonacha, the appellant in Civil Appeal
No. 6538 of 2003 had, in the meanwhile, filed W.P. No. 11149
of 1994 before the Karnataka High Court claiming rights over
some of the articles belonging to Roerichs' couple on the
G strength of a will dated 4.3.1994. The writ petition was
dismissed by the High Court holding that the articles claimed
by the appellant stood vested in the State in view of the
Acquisition Act. Against that judgment, Mary Joyce Poonacha
has approached this Court and filed Civil Appeal No. 6538 of
H 2003.
K.T. PLANTATION PVT. LTD. & ANR. v. ,STATE OF 679
KARNATAKA [K.S. RADHAKRISHNAN, J.]
14. The Company, through its Managing Director, filed Writ A
Petition No. 32560 of 1996 before the Karnataka High Court
challenging the constitutional validity of the Acquisition Act,
Section 110 of the Land Reforms Act, the notification dated
08.03.1994 issued thereunder and also sought other
consequential reliefs. The writ petition was dismissed by the B
High Court upholding the validity of the Acquisition Act as well
as Section 110 of the Land Reforms Act and the notification
issued thereunder except in relation to the inclusion of certain
members in the Board of Directors constituted under the
Acquisition Act. Aggrieved by the same the Company has c
come up before this Court in Civil Appeal No.6520 of 2003.
15. Mary Joyce Poonacha and others had also challenged
the constitutional validity of the Acquisition Act by filing Writ
Petition Nos. 32630-32646of1996 before the Karnataka High
Court, which were also dismissed in view of the judgment in D
Writ Petition No. 32560 of 1996. Aggrieved by the same, they
have preferred Civil Appeal Nos. 6521-6537 of 2003.
16. When the Civil Appeals came up before a bench of
this Court on 28.07.04 and this Court passed an order framing E
the following substantive questions of law:-
1. Whether Section 110 of the Karnataka Land
Reforms Act, 1961, as amended by the Karnataka Land
Reforms amendment Act, 1973, (Act 1 of 1974), which
F
came into effect from 01.03.1974, read with Section 79 B
of the said Act, introduced by amending Act 1 of 1974,
violates the basic structure of the Constitution, in so far _as
it confers power on the Executive Government, a
delegatee of the Legislature, of withdrawal of exemption
of Linaloe plantation, without hearing and without reasons? G
2. Whether the Roerich and Devika Rani Roerich
(Acquisition and Transfer) Act, 1996, (the Acquisition Act),
is protected by Article 31 C of the Constitution?
H
680 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 3. Whether the true interpretation of Article 300A of the
Constitution, the said Act is violative of the said Article in
so far as no specific compensation prescribed for the
acquisition of 468 acres of Linaloe plantation, and, after
deduction of liabilities and payment of compensation for the
B artefacts, no balance may and/or is likely to exist for
payment of such compensation, as a result of which,
whether the Act really is expropriatory in nature?
4. Whether on true interpretation of Article 300A of the
Constitution, the said Act is violative of Article 300A as the
c said Article is not, by itself, a source of Legislative power,
but such power of the State Legislature being traceable
only to Entry 42 of List Ill of Schedule VII to the Constitution
viz., "Acquisition and Requisition of Property", whicti topic
excludes expropriation and confiscation of property?
D
5. If Article 300A of the Constitution is construed as
providing for deprivation of property without any
compensation at all, or illusory compensation, and hence
providing for expropriation and confiscation of property,
E whether the said Article would violate the rule of law and
would be an arbitrary and unconscionabfe violation of Article
14 of the Constitution, thus violating the basic structure of
the Constitution?
F Part-I
We will first examine the validity of Section 110 of the Land
Reforms Act and the notification dated 08.03.94, issued
thereunder.
G 17. Mr. T.R. Andhyarujina, Senior Advocate appearing for
the Company submitted that it had purchased the lands from
Rperich couple when those lands stood exempted from the
provisions of the Land Reforms Act by virtue of Section
107(1 )(vi) of the Act. Learned senior counsel submitted that the
H State Government cannot, in exercise of its powers under
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 681
KARNATAKA [K.S. RADHAKRISHNAN, J.]
Section 110 of the Act, issue notification dated 08.03.94 to A
withdraw the exemption granted by the Legislature which is
essentially a legislative policy. Learned senior counsel also
submitted that Section 110 gave unfettered and unguided
power to the Executive to take away the exemption granted by
the Legislature and hence that Section is void for excessive B
delegation of ·legislative powers on the State Government. In
support of his contention, reliance was placed on the judgments
of this court In Re: The Delhi Laws Act, 1912, the Ajmer-
Merwara (Extension of Laws) Act, 1947 and the Part C States
(Laws) Act, 1950 (1951) 2 SCR 747, Rajnarain Singh v. The c
Chairman, Patna Admnistration Committee, Patna& Another,
AIR 1954 SC 569, Vasant/al Maganbhai Sanjanwa/a v. State
of Bombay and Ors. AIR 1961 SC 4, Hamdard Dawakhana
(Wakf) Lal Kuan, Delhi & Another v. Union of India & Others
(1960) 2 SCR 671. D
18. Learned senior counsel also submitted that the State
Government cannot take away retrospectively the vested rights
of persons to hold lands used for Linaloe cultivation from
01.03.1974 onwards, without assigning any reasons. Further,
it was also submitted that the exemption under Section E
107(1 )(vi) was granted with respect to the lands used for the
cultivation of Linaloe, and not for any specific individual, and
there is no bar in alienating the land to third parties. In support
of the above contention, learned counsel placed reliance on the
decisions of this Court in Baku/ Cashew Co. and Ors. v. Sa/es F
Tax Officer, Qui/on and Anr. (1986) 2 SCC 365, Income Tax
Officer, Al/eppy v. M.C. Ponnoose and Ors. (1969) 2 SCC
351, Regional Transport Officer, Chittoor and Ors. v.
Associated Transport Madras (P) Ltd. and Ors. (1980) 4 SCC
597, Cannanore Spinning and Weaving Mills Ltd. v. Collector G
of Customs and Central Excise, Cochin and Ors. (1969) 3
SCC 112, Hukam Chand etc. v. Union of India (UO/) and Ors.
(1972) 2 sec 501.
19. Shri Andhyarujina also submitted that the show cause H
682 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A notice dated 28.03.1994 was ex facie illegal and that the
prohibition of transfer of land under Section 80 of the Act cannot
act retrospectively in respect of lands already stood exempted
under Section 107(1)(vi) of the Act.
B 20. Learned senior counsel also refuted the contention of
the State that, under Section 107(2) of the Land Reforms Act,
there can be only 10 units of land used for Linaloe cultivation
exempted under Section 107(1 )(vii) of the Act. Learned senior
counsel submitted that it would be anomalous for the
Legislature. by amending the Act, on the one hand, to exempt
C the lands for cultivation of Linaloe from operation of the Land
Reforms Act, without any limit of holding and, at the same time,
deprive the existing cultivators -0f Linaloe, except to the extent
of 10 units on 1.3.74. Learned counsel submitted that Section
107(1)(vi) does not put a limit of 10 units of Linaloe lands.
D
21. Learned sehior counsel a1so submitted that the State
Government has also not followed the procedure laid down in
Section 140 of the Land Reforms Act and, in any view, the mere
laying of the notification before the State Legislature would not
E cure the infirmity of excessive delegation. Learned counsel also
submitted that though the Land Reforms Act was placed in the
9th Schedule which saves its provisions from the challenge of
Articles 14, 19 and 31, a challenge to a provision of the Act
for excessive delegation of legislative power is still available
F and the Land Reforms Act cannot be protected by Article 31 B.
Shri Andhyarujina also submitted that the State Govt. was led
to deprive the appellants of their property even by-passing the
Act when it resorted to withdrawing the exemption available
under Section 107(1)(vi) of the Land Reforms Act, by issuing
G its notification dated 08.03.1994 by withdrawing the exemption
and making the Company ineligible to hold the agricultural land
under Section 798 of the Land Reforms Act which also
provided inadequate compensation.
22. Mr. Basavaprabhu S. Patil, senior counsel for the State
H of Karnataka submitted that the validity of Section 110 of the
K.T. flANTATION PVT. LTD. & ANR. v. STATE OF 683
KARNATAKA [K.S. RADHAKRISHNAN, J.]
Act was never questioned before the High Court on the ground A
of excessive delegation and hence, the appellants are
precluded from raising that contention before this Court.
Learned senior counsel submitted that the validity of Section
110 was challenged on the ground of violation of the
fundamental rights which was rightly negatived by the High Court B
since the Land Reforms Act was placed in the IXth Schedule.
Learned senior counsel also submitted that the Land Reforms
Amendment Act (Act 1 of 1974) was also placed in the IXth
Schedule and, hence immune from attack on the ground of
violation of Articles 14 or 19 of the Constitution and, hence, the c
notification dated 8.03.1994 issued under Section 110 of the
Act is also immune from challenge. Learned senior counsel
submitted that the constitutional validity of the amended Act was
also upheld by this Court in H. S. Srinivasa Raghavachar and
Ors. v. State of Karnataka and Ors. (1987) 2 SCC 692.
D
23. Learned senior counsel also. submitted that the
appellants have no locus standi to maintain these writ petitions
since they have not perfected their title over the properties in
question. Further, Mrs. Devika Rani Roerich had also disputed
the execution of the sale deed dated 16.02.92 and a suit E
disputing title is pending consideration before the Civil Court.
Learned senior counsel also submitted that the company had
illegally acquired 141 acres 25 guntas of land in excess of the
ceiling prescribed under Section 107(2) of the Land Reforms
Act and the Act mandates that no person shall, which includes F
a Company also, after the date of commencement of the Land
Reforms Act, i.e., 01.03.74, acquire land in any manner for
cultivation of Linaloe to an extent which together with the land
cultivated by Linaloe, if any, already held by him exceed 10 units
notwithstanding anything contained in sub-section (1) of Section G
107.
24. Learned senior counsel further submitted that the
provisions of Sections 66 to 76 also shall apply mutatis
mutandis, in respect of every acquisition contrary to Section H
684 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
A 107(2). Learned senior counsel also submitted that in any view
Section 110 of the Land Reforms Act does not suffer from the
vice of excessive delegation of legislative powers. Learned
senior counsel submitted that Section 110 of the Land Reforms
Act is guided by the policy laid down by the state legislature
B which is discernible from the scheme of the Land Reforms Act,
its objective, provisions in Chapter-VIII, history of the
amendment substituting Section 107 (1 )(vi) etc. Learned
counsel also submitted that exemption under Section 107(1 )(vi)
was granted to Roerichs' for cultivation of Linaloe, while the
c Company is statutorily disentitled to hold the land and, hence,
the claim for exemption from the provisions of Land Reforms
Act is opposed to the policy of the Act. Further nobody can
claim the exemption from the provisions of the Land Reforms
Act, as a matter of right, much less a Company which is
statutorily barred from holding excess agricultural land. By
0
withdrawing the exemption the State Govt. was only giving
effect to the underlying legislative policy.
25. Learned senior counsel submitted, but for the
exemption granted, Roerichs' would not have held the land used
E for the cultivation of Linaloe. Exemption was granted to
Roerichs subject to Section 110 of the Land Reforms Act and
it was with that statutory limitation the Company had purchased
the land. Learned senior counsel cited the following judgments
of this Court in Municipal Corporation of Delhi v. Bir/a Cotton,
F Spinning and Weaving Mills, Delhi and Another AIR 1968 SC
1232; Delhi Cloth & General Mills Ltd. v. Union of India &
Others. (1983) 4 SCC 166; Premium Granites and Anr. v.
State of Tamilnadu and Ors. (1994) 2 SCC 691; Registrar of
Co-operative Societies, Trivandrum and Anr. v. Kunjabmu
G and Ors. (1980) 1 SCC 340.
26. Learned senior counsel also submitted that there is no
provision for providing hearing or recording reasons before
issuing the notification dated 08.03.1994, while exercising
powers under Section 110 of the Act. Learned senior counsel
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 685
KARNATAKA [K.S. RADHAKRISHNAN, J.]
submitted that exercise of powers under Section 110 of the Act A
is in the nature of subordinate legislation and no opportunity of
hearing or recording of reasons are warranted. In support of
his contention learned counsel placed reliance on the decisions
of this Court in Shri Sitaram Sugar Co. Ltd. and Another v.
Union of India and Others (1990) 3 SCC 223; Union of India B
and Another v. Cynamide India Ltd. and Another Etc. (1987)
2 SCC 720; H.S.S.K. Niyami & Another v. Union of India &
Another (1990) 4 SCC 516; Laxmi Khandsari and Ors. v.
State of U.P. and Ors. (1981) 2 SCC 600; J. K. Industries &
Another v. Union of India & Others (2007) 13 SCC 673. C.
27. Learned senior counsel also submitted that
requirement of placing the notification dated 08.03.94 before
the State Assembly is not a mandatory requirement once the
State Government publishes the notification in the official
gazette. Reference was made to the judgment in Jan D
Mohammad Noor Mohammad Bagban v. State of Gujarat and
Anr., AIR 1966 SC 385. Learned senior counsel submitted that
in any view of the matter, as per the order of this Court dated
24.2.2011 the State Govt. have already taken steps for placing
the notification before both the Houses of the State Legislature. E
Consequently, the defect, if any, of non-laying the notification,
has been cured.
28. The Land Reforms Act was enacted by the Karnataka
State Legislature to have a uniform law relating to land reforms F
in the State of Karnataka, relating to agrarian relations,
conferment of ownership on tenants, ceiling on land holdings
etc. Chapter II of the Act deals with general provisions relating
to tenancies, Chapter Ill deals with conferment of ownership on
tenants. Ceiling on land holdings is dealt with in Chapters IV G
and Chapter V deals with restrictions on holding or transfer of
agricultural lands. Chapter VIII of the Act deals with exemptions
and Chapter XI deals with the miscellaneous provisions.
29. Appellants in these appeals have challenged the
validity of Section 110 of the Act primarily on the ground of H
686 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A excessive delegation of legislative powers on the State
Government. To examine that contention it is necessary to refer
to certain provisions contained in various Chapters referred to
above, the scheme of the Act, its object and purpose, legislative
policy underlying in the provisions of the statute etc.
8
30. Chapter V of the Act, as we have already indicated,
imposes certain restrictions on ·holding or transfer of agricultural
lands. Section 798(1) of the Act prohibits holding of agricultural
land by certain persons which says that with effect on and from
the date of commencement of the Amendment Act (Act 1/74)
C w.e.f. 1.3.1974, no person other than a person cultivating land
personally shall be entitled to hold land; and that it shall not be
lawful for, a company inter alia to hold 'any land'. Further sub-
section (2) of Section 798 states that the company which holds
lands on the date of the commencement of the Amendment Act
D and which is disentitled to hold lands under sub-section (1 ),
shall within ninety days from the said date furnish to the Tahsildar
within whose jurisdiction the greater part of such land is situated
a declaration containing the particulars of such land and such
other particulars as may be prescribed; and which acquires
E such land after the said date shall also furnish a similar
declaration within the prescribed period. Sub-section (3) of
Section 798 states that the Tahsildar shall, on receipt of the
declaration under sub-section (2) and after such enquiry as may
be prescribed, send a statement containing the prescribed
F particulars relating to such I.and to the Deputy Commissioner
who shall, by notification, declare that such land shall vest in
the State Government free from all encumbrances and take
possession thereof in the prescribed rnanner. Sub-section (4)
of Section 798 states that in respect of the land vesting in the
G State Government under that section an amount as specified
in Section 72 shall be paid. Explanation to Section 798 states
that for the purpose of that section it shall be presumed that a
land is held by an institution, trust. company, association or
body where it is held by an individual on its behalf. Section 80
H bars transfer of any land to non-agriculturists, which says that
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 687
KARNATAKA [K.S. RADHAKRISHNAN, J.]
no sale, gift or exchange or lease of any land or interest therein A
etc. shall be lawful in favour of a person who is disentitled under
Section 79A or 798 to acquire or hold any land.
31. The first appellant being a company was, therefore,
prohibited from holding any agricultural land after the
8
commencement of the Act. If the company was holding any land
with Linaloe cultivation on the date of the commencement of
the Act, the same would have vested in the State Government
under Section 798(3) of the Act and an amount as specified
in Section 72 would have been paid. Section 104, however,
states that the provisions of Sedion 38, Section 63 other than C
sub-section (9), thereof, Sections 64, 79-A, 79-8 and 80 shall
not apply to plantations and is not made subject to the
provisions of Section 110.
32. Section 107 states that the provisions of the Act would D
not apply to certain lands mentioned therein, but made subject
to the provisions of Section 110. Section 107, to the extent it
is relevant for the purpose, is extracted below for easy
reference:
E
"107. Act not to apply to certain lands.- (1) Subject to
the provisions of Section 110, nothing in this Act, except
Section 8, shall apply to lands,-
JOO( JOO( JOO(
F
JOO( JOO( JOO(
(vi) used for the cultivation of linaloe;
JOO( JOO( JOO(
G
JOO( JOO( JOO(
(2) Notwithstanding anything in sub-section (1), no person
shall, after the date of commencement of the Amendment
Act acquire in any manner for the cultivation of linaloe, land H,
688 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A of an extent which together with the land cultivated by
linaloe, if any, already held by him exceeds ten units.
(3) In respect of every acquisition contrary to sub-section
(2), the provisions of Section 66 to 76 shall mutatis
mutandis apply."
B
Section 107, we have already indicated, is made subject
to Section 110, which reads as follows:
"110. Certain lands to be not exempt from certain
c provisions.- The State Government may, by notification
direct that any land referred to in [Section 107 and 108]
shall not be exempt from such of the provisions of this Act
from which they have been exempted under the said
sections."
D 33. The question that is canvassed before us is whether
Section 110 is invalid due to excessive delegation of legislative
powers on the State Government. Before we examine the scope
and ambit of the above quoted provision, reference may be
made to few of the decided cases of this Court on the power
E of delegation of legislative functions.
34. In re: The Delhi Laws Act, 1912 (supra), this Court held
that legislatures in India have been held to possess wide
powers of delegation but subject to one limitation that a
F legislature cannot L~legate essential legislative functions which
consists in the determination of the legislative policy and of
formally enacting that policy into a binding rule of conduct. In
Maharashtra State Board of Secondary and Higher
Secondary Education and Anr. v. Paritosh Bhupeshkumar
G Sheth and Others (1984) 4 SCC 27, this Court declared that
while examining whether a particular piece of delegated
legislation - whether in the form of a rule or regulation or any
other type of statutory instrument - was in excess of the power
of subordinate legislation conferred on the delegate, has to be
H determined with reference only to the specific provisions
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 689
KARNATAKA [K.S. RADHAKRISHNAN, .I.]
contained in the relevant statute conferring the power to make A
the rule, regulation etc. and the object and purpose of the Act
as can be gathered from the various provisions of the
enactment. It was held that the Court cannot substitute its own
opinion for that of the legislature or its delegate as to what
principle or policy would best serve the objects and purpose B
of the Act or sit in judgment over the wisdom and effectiveness
or otherwise of the policy laid down by the regulation making
body and declare a regulation to be ultra vires merely on the
ground that, in the opinion of the Court, the impugned
provisions will not help to serve the object and purpose of the c
Act. It is exclusively within the province of the legislature and
its delegate to determine, as a matter of policy, how the
provision of the $tatute can best be implemented and what
measures, substantive as well as procedural would have to be
incorporated in the rules or regulations for the efficacious 0
achievement of the objects and purposes of the Act. It is not
for the Court to examine the merits or demerits of such a policy
because its scrutiny has to be limited to the question as to
whether the impugned regulations fall within the scope of the
regulation-making power conferred on the delegate by the E
Statute.
35. Law is settled that the Court shall not invalidate a
legislation on the ground of delegation of essential legislative
functions or on the ground of conferring unguided, uncontrolled
and vague powers upon the delegate without taking into F
account the preamble of the Act as also other provisions of the
statute in the event they provide good means of finding out the
meaning of the offending statute. The question whether any
particular legislation suffered from excessive delegation, has
to be determined by the court having regard to the subject- G
matter, the scheme, the provisions of the statute including its
preamble and the facts and circumstances and t~e background
on which the statute is enacted. See Bhatnagars & Co. Ltd. v.
Union of India AIR 1957 SC 478; Mohmedalli and Ors. v.
Union of India and Ors., AIR 1964 SC 980. H
690 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 36. Further, if the legislative policy is formulated by the
legislature, the function of supplying details may be delegated
to the executive for giving effect to the policy. Sometimes, the
legislature passes an act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers
B the government to extend the provisions thereof to different
territories, persons or commodities, etc. So also there are
some statutes which empower the government to exempt from
their operation certain persons, commodities, etc. Some
statutes authorise the government to suspend or relax the
c provisions contained therein. So also some statutes confer the
power on the executive to adopt and apply statutes existing in
other states without modifications to a new area.
37. In Brij Sunder Kapoor v. I Additional District Judge
and Ors. (1989) 1 SCC 561 this Court held that the Parliament
D decided as a matter of policy that the cantonment areas in a
State should be subject to the same legislation relating to
control of rent and regulation of housing accommodation as in
force in other areas of the State and this pclicy was given effect
to by ~mpowering the Central Government to extend to a
E cantonment area in a State the tenancy legislation as in force
as in other areas of the State including future amendments and
that there was no abdication of legislative· functions by
Parliament.
F 38. Chapter VIII of the Land Reforms Act deals with
exemption provisions. Section 104 of the Act deals with
plantations, which says, that the provisions of Section 38,
Section 63, other than sub-section (9), thereof, Sections 64, 79-
A, 79-B and 80 shall not apply to plantations, but the power to
G withdraw the exemption in respect of the plantations, has not
been conferred on the State Government, but evidently retained
by the Legislature. Legislative policy is therefore clearly
discernible from the provision of the Statute itself, that, whenever
the Legislature wanted to confer the power to withdraw the
exemption to the State Government it has done so, otherwise
H it has retained the power to itself.
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 691
KARNATAKA [K.S. RADHAKRISHNAN, J.] .
39. Section 110 of the Land Reforms Act empowers the A
State Government to withdraw the exemption granted to any
land .referred to in Sections 107 and 108. Section· 107 itself has
been made "subject to" Section 110 of the Act. The words
'subject to' conveys the idea of a provision yielding place to
another provision or other provisions to which it is made 8
subject. In Black Law Dictionary, 5th Edn. At p.1278, the
expression "subject to" has been defined as under:
"Liable, subordinate, subservient, inferior, obedient to;
governed or effected by; provided that; provided;
answerable for." C
Since Section 107 is made subject to Section 110, the
former section conveys the idea of yielding to the provision
to which it is made subject that is Section 110 which is
the will of legislature. Reference may be made to the o
decisions of this Court in Punjab Sikh Regular Motor
Service, Moudhapara, Raipur v. Regional Transport
Authority & ,A.nother AIR 1966 SC 1318, Joginder Singh
& Others v. Deputy Custodian-Genera/ of Evacuee
Property & Others AIR 1967 SC 145 and Bharat Hari E
Singhania & Others v. Commissioner of Wealth Tax
(Central) & Others (1994) 3upp. 3 SCC 46, Ashok
Leyland Ltd. v. State of T.N. & Another (2004) 3 SCC 1,
Printers (Mysore) Ltd. v. M. A. Rasheed & Others (2004)
4 SCC 460, South India Corporation (P) Ltd. v. Secretary, F
Board of Revenue, Trivendrum & Another AIR 1964 SC
207, Commissioner of Wealth Tax, Andhra Pradesh,
Hyderabad v. Trustees of H.E.H. Nizam's Family
(Remainder Wealth Trust), Hyderabad (1977) 3 SCC
362 and Chandavarkar Sita Raina Rao v. Ashalata S.
Guram (1986) 4 SCC 447. G
40. The Legislature's apathy in granting exemption for
lands used for cultivation of Unaloe is discernible from the
language used in sub-section (2) of Section 107, which says
that no person shall after the commencement of the Amendment H
692 SUPREME COURT REPORTS [2011] 13 (ADDL.) $.C.R.
A Act acquire in any manner for the cultivation of Linaloe, land of
an extent which together with the land cultivated by Linaloe, if
any, already held by him exceeds ten units. Legislature,
therefore, as matter of policy, wanted to give only a conditional
exemption for lands used for Linaloe cultivation and the policy
8 was to empower the State Government to withdraw the same
especially when the law is that no person can claim exemption
as a matter of right. The legislative will was to make Section
107 subject to Section 110 and not the will of the delegate,
hence, overriding effect has to be given to Section 110. Further,
C the Land Reforms Act including Section 110 was placed in IXth
Schedule in the year 1965 and, hence, immune from challenge
in a court of law.
41. Dr. Roerich and Mrs. Devika had got only the
conditional exemption from the provisions of the Land Reforms
D Act for the lands used for Linaloe cultivation and, hence, they
also would have lost ownership and possession of the lands
once the exemption had been withdrawn and the land would
have vested in the State. The land v.as purc:hased by the
Company with that statutory condition from Roerichs and,
E hence, was bound by that condition. We, therefore, reject the
contention that Section 110 is void due to excessive delegation
of legislative powers.
42. The State Government issued the notification dated
8.3.1994 in exercise of the powers conferred by Section 110
F of the Land Reforms Act which was published in the official
gazette on 11.3.94. Section 2(22) of the Act defines
'Notification' to mean a notification published in the official
gazette. Section 23 of the General Clauses Act 1897 also
states that the publication in the official gazette of a rule or by-
G law purported to have been made in exercise of power to make
rules or by-laws after previous publication shall be conclusive
proof that the rule or by-law has been duly made.
43. This Court in B.K. Srinivasan and Ors. v. State of
H Kamataka and Ors. (1987) 1 SCC 658 held as follows:-
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 693
KARNATAKA [K.S. RADHAKRISHNAN, J.]
"Unlike Parliamentary legislation which is publicly made, A
delegated or subordinate legislation is often made
unobtrusively in the chambers of a minister, a secretary to
the Government or other official dignitary. It is, therefore,
necessary that subordinate legislation, in order to take
effect, must be published or promulgated in some suitable B
manner, whether such publication or promulgation is
prescribed by the parent statute or not. It will then take effect
from the date of such publication or promulgation."
44. So far as this case is concerned, the State Government C
has already followed the legal requirement of publication of the
notification dated 08.03.1994 which came into effect on
11.03.94.
45. Mr. T.R.Andhyarujina, learned counsel appearing for
the appellants submitted that the respondent State has not D
followed the procedure laid down in Section 140 of the Act and
that the approval of the notification by the State Legislature is
an important circumstance to be taken into account in
determining its validity. Learned counsel submitted that laying
of notification under Section 140 is not a mere laying but is E
coupled with a negative/affirmative resolution of the Legislature;
the failure to lay the notification is an illegality which cannot be
cured.
46. Following is the procedure generally followed when an
F
order or notification is laid before the Legislature:-
(1) Laying which requires no further procedure;
(2) Laying allied with the affirmative procedure; and
G
(3) Laying allied with negative procedure.
The object of requirement of laying provided in enabling Acts
is to subject the subordinate law making authority to the
vigilance and control of the Legislature. The degree of control
H
694 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A the Legislature wants can be noticed on the language used in
such laying clause.
47. We have in this case already found that there has not
been any excessive delegation of legislative powers on the
8 State Government and we may now examine whether the failure
to follow the procedure laid down under Section 140 of the Act
has affected the legal validity of the notification. Facts would
indicate that. in the instant case, the notification has not been
laid before the Legislature, but looking at the language of
C Section 140, it has not affected the validity or the effect of the
notification.
For easy reference Section 140 is extracted hereunder:
"Section 140. Rules and notifications to be laid
D before the State Legislature.- Every rule made under this
Act and every notification issued under Sections 109, 110
and 139 shall be laid as soon as may be after it is made
or issued before each House of the State Legislature while
it is in session for a total peri6d of thirty days which may
be comprised in one session or in two successive
E
sessions, and, if, before the expiry of the session in which
it is so laid or the session immediately following both
Houses agree in making any modification in the rule or
notification or both Houses agree that the rule or
notification should l)Ot be made, the rule or notification shall
F thereafter have effect only in such modified form or be of
no effect, as the case may be; so however that any such
modification or annulment shall be without prejudice to
the validity of anything previously done under that rule
or notification."
G
(Emphasis supplied)
48. The Constitution Bench of this Court in Jan
Mohammad Noor's case (supra) examined the effect of sub-
H section 5 of Section 26 which provides that the rules shall be
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 695
KARNATAKA [K.S. RADHAKRISHNAN, J.]
laid before each House of the provisional Legislature, for giving A
effect. Interpreting that provision the Court held that Section
26(5) of Bombay Act 29 of 1939 does not prescribe that the
Rules acquired validity only from the date on which they have
been placed before the House of Legislature. The Court held
that the Rules are valid from the date on which they are made B
under Section 26(1 ). The Court noted that the Legislature has
prescribE.d that the Rules shall be placed before the House of
the Legislature, but held that the failure to place the rules before
the House of Legislature does not effect the validity of the rules
and merely because they have not been placed before the c
House of the Legislature, the provision cannot be regarded as
mandatory.
49. This Court in Atlas Cycle Industries Ltd. & Others v.
State of Haryana (1979) 2 SCC 196 examined the question
relating to the non-compliance with sub-section (6) of Section D
3 of the Essential Commodities Act, 1955 which provides that
every order made under the section shall be laid before both
Houses of Parliament as soon as may be, after ii is made. The
Court held that non-compliance with the Laying Clause did not
affect the validity of the order and make it void. In Quarry E
Owners' Association v. State of Bihar & Others (2000) 8 SCC
655, this court while examining the scope of Section 28(3) of
the Mines and Minerals (Regulation and Development) Act
1957, stated that when a statue required the placement of a
notification before the State Legislature it is the obligation of F
the state to place the same with the specific note before each
House of State Legislature. Even if it had not been done, the
State could place the same before the House at the earliest
and the omission to comply with it would not affect the validity
of the notifications and their coming into force. Direction was G
issued to the State Government to lay notifications at the
earliest.
50. Section 140 does not require the State Legislature to
give its approval for bringing into effect the notification, but a H
696 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A positive act by the Legislature has been contemplated in
Section 140 to make the notification effective, that does not
mean that failure to lay the notification has affected the legal
validity, its effect or the action taken precedent to that
notification. We, therefore, hold that non-laying of the notification
s dated 08.03.1994 before the State Legislature has not affected
its validity or the action taken precedent to that notification. We
have now, vide our order dated 24.02.2011, directed the State
Government to place the notification before both the Houses
of the State Legislature following the judgment in Quarry
c Owners' case (supra). Therefore, the defect, if any, of not
placing the notification has been cured.
51. We may also consider the effect of Section 80 of the
Land Reforms Act on Section 79-8. Section 80 prohibits
transfer of any land to non-agriculturalist. Section 80(1 )(iv),
D states that it shall not be lawful to sell, gift, exchange or lease
of any land, in favour of a person; who is disentitled under
Section 79-8, to acquire or hold any land. The expression
"land" has been defined under Section 2(18) which is all
comprehensive and takes in agricultural lands, that is land which
E is used or capable of being used for agriculture, but for the
exemption granted under Section 107(1)(vi) lands used forthe
cultivation of linaloe would have fallen under Section 2(18). But,
so far the company is concerned, the prohibition was total and
complete since Section 79-8 states that it would not be lawful
F for a company to hold "any land", with effect and from the date
of the commencement of the amending Act. The Company,
therefore, could not have held the land used for the cultivation
of Linaloe on the date of the commencement of the Act. Further
on withdrawal of exemption vide notification dated 08.03.94 the
G Company was disentitled to hold the land belonging to
Roerichs' since the same would be governed by the provisions
of the Land Reforms Act.
52. We also find no force in the contention that opportunity
of hearing is a pre-condition for exercising powers under
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 697
KARNATAKA (K.S. RADHAKRISHNAN, J.]
Section 110 of the Act. No such requirement has been provided A
under Section 107 or Section 110. When the exemption was
granted to Roerichs' no hearing was afforded so also when the
exemption was withdrawn by the delegate. It is trite law that
exemption cannot be claimed as a matter of right so also its
withdrawal, especially when the same is done through a B
legislative action. Delegated legislation which is a legislation
in character, cannot be questioned on the ground of violation
of the principles of natural justice, especially in the absence any
such statutory requirement. Legislature or its delegate is also
not legally obliged to give any reasons for its action while c
discharging its legislative function. See - State of Punjab v.
Tehal Singh and Ors. (2002) 2 SCC 7; West Bengal
Electricity Regulatory Commission v. CESC Ltd. etc. etc.
(2002) 8 SCC 715; Pune Municipal Corporation and Anr. v.
Promoters and Builders Association and Anr. (2004) 10 SCC D
796; Bihar State Electricity Board v. Pulak Enterprises and
Ors. (2009) 5 sec 641 .
53. We, therefore, r~pel the challenge on the validity of
Section 110 of the Karnataka Land Reforms Act as well as the
notification dt.8.3.1994 and we hold that the land used for E
linaloe cultivation would be governed by the provisions of the
Land Reforms Act which is protected under Article 31 B of the
Constitution having been included in the IXth Schedule.
PART·ll F
'
Constitutional Validity of the Acquisition Act
54. The State Government after withdrawing the exemption
granted to the lands used for Linaloe cultivation, felt the
necessity to take effective and proper steps to manage the G
estate, its tree growth, preserve paintings, artefact and other
waluables of Roerichs' and their transferees and to establish an
J6.rt Gallery-cum-Museum. For the said purpose initially the State
Issued an ordinance, namely, the Roerich and Devika Rani
Roerich Estate (Acquisition and Transfer) Ordinance 1992, H
698 SUPREME COURT REPORTS (2011] 13 (ADDL) S.C.R
A which was sent for the approval of the President of India. In the
meanwhile Roerich couple passed away and the ordinance
was returned to make sufficient amendments. After necessary
amendments ordinance of 1995 was issued. However, the
ordinance was returned by the Government of India informing
B that it had no objection to introduce legislation as a bill and
hence the same with requisite amendments was placed before
the Legislative Assembly and the Legislative Council. The
Acquisition Act was then passed and subsequently got the
assent of the President on 15.11.96 and was brought into force
C on 21.11.1996.
55. The Act was questioned by filing a writ petition before
the High Court of Karnataka on the ground that enactment
providing for compulsory acquisition of Titgunni Estate was not
for public purpose and the compensation provided thereunder
D was illusory. During the pendency of the writ petition the Act was
amended by the Amendment Act 2001, w.e.f. 01.11.96 by
inserting a new Section 19A to provide clarity for payment of
amount to the owners I interested persons. The challenge
against the validity of the Act and its provisions were repelled
E by the High Court except in relation to certain provisions,
providing for the inclusion of certain members in the board of
directors constituted under the Act.
56. Shri Andhyarujina, submitted that the impugned Act
F does not contain any provision for protection of agrarian reforms
and hence not protected by the provisions of Article 31A and
hence not saved from challenges on the ground of violation of
Articles 14 and 19 of the Constitution. Learned counsel also
pointed out that the management and protection of land used
G for linaloe cultivation and the preservation of artefacts, paintings
etc. are not part of agrarian reforms. Learned senior counsel
submitted that concept of agrarian reforms is a dynamic one
and this Court in various decisions examined its meaning and
content. Reference was made to the judgments of this Court in
State of Kera/a v. Gwalior Rayon Silk Manufacturing (Wvg.)
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 699
KARNATAKA [K.S. RADHAKRISHNAN, J.]
Co. Limited (1993) 2 SCC 713, Kavalappara Kottarathil A
Kochuni & Others v. State of Madras & Others (1960) 3 SCR
887, P. Vajravelu Mudaliar v. Special Deputy Collector,
Madras and Another (1965) 1 SCR 614, Balmadies
Plantations Ltd. & Others v. State of Tamil Nadu (1972) 2 SCC
133. B
57. Shri Andhyarujina, also submitted that the impugned
Act is ex-facie repugnant to the provisions of Land Acquisition
Act, 1894 and hence void under Article 254(1) due to want of
Presidential assent on repugnancy. Learned Counsel
elaborately referred to the various provisions of the impugned C
Act and the Land Acquisition Act to bring home his point on
repugnancy between both the Legislations, the former being a
State Legislation and the latter being a Central Legislation.
Learned Counsel specifically pointed out that the procedure and
the principle for the acquisition of land as well as determination D
of compensation, etc., under both the Acts are contrary to each
other and hence the impugned Act can be saved only if
Presidential assent is obtained under Article 254(2) of the
constitution. Learned Counsel submitted that the Acquisition Act
is in pith and substance a law on acquisition and presidential E
assent under Article 254(2), was warranted to save that
Legislation.
58. Shri K.N. Bhat, learned senior counsel appearing for
the appellants in CA No.6521-6537 of 2003 submitted that F
Article 300A is almost a replica of Article 31 (1 ), hence, all the
judicial pronouncements rendered by this Court on Article 31(1)
would equally apply when we interpret Article 300A. Learned
counsel also referred to the view expressed by Justice Subba
Rao in P. Vajravelu Mudaliar's case (supra) and also referred G
to Subodh Gopal Bose v. Bejoy Kumar Addya and Others
(1973) 2 SCC 105 and few other decisions. Learned counsel
submitted that the concept of eminent domain has to be read
into Article 300A, which is an over-arching principle. Learned
counsel also submitted that the concept of reasonableness,
H
700 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A could be the touchstone while interpreting a statute enacted to
deprive a person of his property under Article 300A. Learned
counsel also referred to the Judgment of this Court in
Kavalappara Kottarathil Kochuni's case (supra) and submitted
that a person can be deprived of his property only by a valid
B law which can be tested in the light of Articles 14 and 21.
59. Shri Dushyant R. Dave, learned senior counsel
appearing for the appellants in CA No.6520 of 2003 also
supported the arguments of Shri Andhyarujina and submitted
that the concept of eminent domain be read into Article 300A
C of the Constitution and the impugned Act is unconstitutional for
not providing adequate compensation to the transferors.
Reference was made to several decisions of this Court
including the decisions in P. Vajrave/u Muda/iar v. Special
Deputy Collector, Madras & Anr. (1965) 1 SCR 614; Rustom
D Cavasjee Cooper (Banks Nationalisation) v. Union of India
(1970) 1 SCC 248; Deputy Commissioner and Collector,
Kamrup & Ors. v. Durga Nath Sharma (1968) 1 SCR 561 and
Reliance Energy Limited & Anr. v. Maharashtra State Road
Development Corporation Ltd. & Ors. (2907) 8 SCC 1 etc.
E
60. Shri Andhyarujina, referring to the letter dated
20.09.1996 submitted that the State of Karnataka had sought
the assent of the President only for the specific purpose of
Clause(a) of Clause (1) of Article 31-A of the Constitution and
F not for any other purpose and the assent was given only in
response to the said proposal of the State Government and
there had never been any proposal pointing out the repugnancy
between the impugned Act and the Land Acquisition Act and
hence the impugned Act is void of ex-facie repugnancy between
G provisions of the existing Land Acquisition Act 1894 and the
impugned Act. In support of his contentions learned counsel
placed reliance on judgments of this Court in Gram Panchayat
of Village Jama/pur v. Ma/winder Singh & Others (1985) 3
SCC 661; Kaiser-I-Hind Pvt. Ltd. &Another v. National Textile
Corporation (Maharashtra North) Ltd. & Others (2002) 8 SCC
H 182.
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF ·701
KARNATAKA [K.S. RADHAKRISHNAN, J.]
61. Shri Patil, learned senior counsel appearing for the A
Respondent-State submitted that Acquisition Act is not open
to challenge on the ground of violation of Article 14 or 19 since
the same is protected under Article 31A and the assent of the
President was obtained. Learned counsel submitted that the
impugned Act was enacted in public interest to provide for B
acquisition of Roerich's Estate, to secure its proper
management and to preserve the valuable tree growth,
paintings, art objects, carvings and for the establishment of an
art gallery-cum-museum. Learned counsel submitted that
general scheme of the Acquisition Act is for the preservation c
of Linaloe cultivation and other tree growth hence constitutes
a measure of agrarian reforms and in any view Act does not
violate Article 14 or 19 of the Constitution of India.
62. Learned senior counsel also submitted that Acquisition
Act was never challenged by the appellants before the High D
Court on the ground of repugnancy or on the ground of absence
of Presidential assent under Article 254(2) of the Constitution.
Learned counsel submitted that such a plea cannot be raised
for the first time before this Court since the same raises
questions of facts. Reference was made to the decisions of this E
Court in Engineering Kamgar Union v. Electro Steels Castings
Ltd. and Another (2004) 6 SCC 36; Bhuwalka Steel Industries
Ltd. v. Bombay Iron and Steel Labour Board and Another
(2010) 2 sec 273. Learned counsel submitted that in any view
assent of the President was sought for and obtained which F
satisfies the requirements of Article 254(2) as well as the
proviso to Article 31 A of the Constitution.
63. Learned counsel submitted that the Bill was referred
for the assent of the President with a specific note that subject G
matter of the bill falls under Entry 18 of List II and Entry 42 of
List Ill of the Vllth Schedule of the Constitution of India. Learned
counsel submitted that the main object of the Acquisition Act
is not being "Acquisition and Requisition of Property" and the
Legislation in pith and substance is in respect of "land" under
H
702 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
A Entry 18 of List II of the Constitution and there is no repugnancy
between State and Central Legislation and hence no assent
of the President under Article 254(2) was warranted. Jn support
of his contention learned counsel also relied on the judgments
of this Court in P.N. Krishnan Lal & others vs. Govt. of Kera/a
B & Another (1995) Suppl. (2) SCC 187 and Offshore Holdings
Pvt. Ltd. vs. Bangalore Development Authority and Ors. (2011)
3 sec 139.
64. After passing the Roerich and Devika Rani Roerich
Estate (Acquisition and Transfer) Bill 1996 by the Legislative
C Assembly and Legislative Council, on 10.09.1996, a request
was put up in file No. Law 28 LGN 92 stating that subject matter
of the Bill would fall under Entry 18 of List II and Entry 42 of List
111 of the Vllth Schedule of the Constitution pointing out that the
State Legislative would be competent to enact such a
D legislation. Note also indicated that the provisions of draft bill
would attract sub-clause (a) of Clause (1) of Article 31A of the
Constitution inasmuch as rights of the land owners were
proposed to be extinguished, and hence required the assent
of the President in accordance with the proviso to Article 31 A
E of the Constitution to make it free from attack and to protect it
from being declared as void on the ground of inconsistency or
violation of Articles 14 and 19 of the Constitution of India.
Further, it was also proposed to place the Bill before the
Governor as provided under Article 200 of the Constitution of
F India for consideratioA of the President under Clause 2 of Article
254 of the Constitution. Later, a Jetter dated 20.09.1996 was
addressed by the State of Karnataka to the Secretary to the
Government of India, Ministry of Home Affairs requesting to
obtain the assent of the President. No reference to Article
G 254(2) was, however, made in that letter but the operative
portion of the letter reads as follows :-
"The subject matter of the Bill falls under Entry 18 of List II
and Entry 42 of List Ill of the 7th Schedule to the
Constitution of India. Therefore, the State Legislature is
H competent to enact the measure.
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 703
KARNATAKA [K.S. RADHAKRISHNAN, J.]
Since the pro~isions of the Bill would attract sub-clause (a) A
of Clause (1)'of Article 31 A of the Constitution, the Bill has
to be reserved for the assent of the President in
accordance with the proviso to Clause (1) thereof in order
to get the protection of that Article. Accordingly, the
Governor has reserved the Bill under Article 200 of the B
Constitution of India for the consideration of the President."
Later, the assent of the President was obtained on 15.11.96.
65. The plea of repugnancy can be urged only if both the
legislations fall under the Concurrent List. Under Article 254 of C
the Constitution, a State law passed in respect of a subject
matter comprised in List Ill would be invalid if its provisions are
repugnant to a law passed on the same subject by Parliament
and that too only if both the laws cannot exist together. The
question of repugnancy under Article 254 of the Constitution D
arises when the provisions of both laws are fully inconsistent
or are absolutely irreconcilable and it is impossible without
disturbing the other, or conflicting results are produced, when
both the statutes covering the same field are applied to a given
set of facts. Repugnancy between the two statutes would arise E
if there is a direct conflict between the two provisions and the
law made by the Parliament and the la.w made by the State
Legislature occupies the same filed. Reference may be made
to the decisions of this Court in Deep Chand v. State of U.P.
& Others AIR 19.59 SC 648; Prem Nath Kaul v. State of F
Jammu & Kashmir, AIR 1959 SC 749; (1959) Supp. (2) SCR
270, Ukha Ko/he v. State of Maharashtra AIR 1963 SC 1531;
Bar Council of Uttar Pradesh v. State of U.P & Another (1973)
1 SCC 261; T. Barai v. Henry Ah Hoe & Another (1983) 1
SCC 177; Hoechst Pharmaceuticals v. State of Bihar (1983) G
4 SCC 45; Lingappa Pochanna Appelwar v. State of
Maharashtra & Another (1985) 1 SCC 479; and Vijay Kumar
Sharma & Others v. State of Karnataka & Others (1990) 2
sec 562.
66. When the r~pugnancy between the Central and State H
704 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C R.
A Legislations is pleaded we have to first examine whether the
two legislations cover or relate to the same subject matter. The
test for determining the same is to find out the dominant
intention of the two legislations and if the dominant intention of
the two legislations is different, they cover different subject
B matter then merely because the two legislations refer to some
allied or cognate subjects, they do not cover the same field. A
provision in one legislation to give effect to its dominant
purpose may incidentally be on the same subject as covered
by the provision of the other legislation,' but such partial
c coverage of the same area in a different context and to achieve
a different purpose does not bring about the repugnancy which
is intended to be covered by Article 254(2). In other words, both
the legislations must be substantially on the same subject to
attract Article 254. In this connection, reference may be made
to the decisions of this Court in Municipal Council Palai v. T.
0
J. Joseph (1964) 2 SCR 87; Ch. Tika Ramji v. State of U.P.
1956 SCR 393; State of Karnataka v. Shri Ranganatha Reddy
(1977) 4 SCC 471; M. Karunanidhi v. Union of India &
Another (1979) 3 SCC 431; and Vijay Kumar Sharma&
E Others v. State of Karnataka & Others (1990) 2 SCC 562.
67. We are of the considered view that the Acquisition Act,
in this case, as rightly contended by the State, primarily falls
under Entry 18 List II, since the dominant intention of the
legislature was to preserve and protect Roerichs' Estate
F covered by the provisions of the Land Reforms Act, on the
State Government withdrawing the exemption in respect of the
land used for linaloe cultivation. The Acquisition Act, though
primarily falls under Entry 18 List II incidentally also deals with
the acquisition of paintings, artefacts and other valuable
G belongings of Roerichs' and, hence, the Act partly falls under
Entry 42 List Ill as well. Since the dominant purpose of the Act
was to preserve and protect Roerichs' Estate as part of
agrarian reforms, the inclusion. of ancillary measures would not
throw the law out of the protection of Article 31A(1 )(a). On the
H other hand, the Land Acquisition Act, 1894 is an act which fell
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 705
KARNATAKA [K.S. RADHAKRISHNAN, J.]
exclusively under Entry 42 List Ill and enacted for the purpose A
of acquisition of land needed for public purposes for companies
and for determining the amount of compensation to be made
on account of such acquisition, which is substantially and
materially different from the .impugned Act whose dominant
purpose is to preserve and protect "estate" governed by B
Art.31A(a) read with Art.31A(2)(a)(iii) of the Constitution.
68. We are, therefore, of the considered view that no
assent of the President was required under Article 254(2) of
the Constitution to sustain the impugned Act, which falls under C
Article 31A(1)(a) of the Constitution, for which the assent of the
President was obtained. The contention of the counsel that the
Acquisition Act was invalid due to repugnancy is, therefore,
rejected.
69. We may also state that the Constitution (17th D
Amendment) Act, 1964 extended the scope of the expression
"estate" in Art.31A(a) as to protect all legislations on agrarian
reforms and the expression "estate" was given a wider meaning
so as to bring within its scope lands in respect of which
provisions are normally made in land reforms enactments. E
Art.31A(2)(a)(iii) brings in any land held or let for the purpose
of agriculture or for purpose ancillary thereto, including waste
or vacant land, forest land, land for pasture or sites of buildings
and other structure occupied by the cultivators of land etc.
70. In Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd's F
case (supra), this Court held that the concept of agrarian reform
is a complex and dynamic one promoting wider interests than
conventional reorganisation of the land system or distribution
of land, which is intended to realise the social function of the
land and includes various other proposals of agrarian reforms. G
To test whether the law was intended for agrarian reforms, the
court is required to look to the substance of the Act and not its
mere outward form. In Kunjukutty Sahib v. State of Kera/a &
Another (1972) 2 SCC 364, this Court held that any provision
for promotion of agriculture or agricultural population is an H
706 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A agrarian reform, which term is wider than land reforms. In
Mahant Sankarshan Ramanuja Oas Goswami etc., etc. v.
State of Orissa & Another (1962) 3 SCR 250, this Court held
that a law for the acquisition of an estate etc. does not lose the
protection of Article 31A(1) merely because ancillary provisions
B are included in such law.
71. The Acquisition Act was enacted in public interest, to
preserve and protect the land used for the linaloe cultivation and
its tree growth as part of agrarian reforms which is its dominant
purpose. Proposal to preserve the paintings, artefacts, carvings
C and other valuables and to establish an Art-Gallery-cum-
Museum are merely ancillary to the main purpose. The
dominant purpose of the Act is to protect and preserve the land
used for Linaloe cultivation, a part of agrarian reforms. The Act
is, therefore, saved by the provisions of Art.31A(1)(a).
D
72. We, therefore, hold that Roerich's estate falls within the
expression "estate" under clause (2) of Article 31 A of the
Constitution and the Act has obtained the assent of the
President, hence, is protected from the challenge under Articles
E 14 and 19 of the Constitution of India. No arguments have
been raised on the applicability or otherwise of Article 31 C and
hence it is unnecessary to examine whether the Act is protected
by Article 31 C of the Constitution or not.
Part-Ill
F
Article 300A of the Constitution and the Acquisition Act
73. We will now examine the validity of the Acquisition Act
on the touchstone of Article 300A of the Constitution and
G examine whether the concept of eminent domain be read into
Art.300A and in the statute enacted to deprive a person of his
property.
74. Shri Andhyarujina, learned senior counsel submitted
that Art.300A a11d the statute framed should satisfy the twin
H principles of public purpose and adequate compensation.
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 707
KARNATAKA [K.S. RADHAKRISHNAN, J.]
Learned counsel submitted that whenever there is arbitrariness A
in State action whether it be of the legislature or of the executive
or of an authority under Article 12, Article 14 springs into action
and strikes down such State action as well as the legislative
provisions, if it is found to be illegal or disproportionate.
Reference was made to the judgments of this Court in B
Kavalappara Kottarathi/ Kochuni's case (supra), E.P Royappa
v. State of Tamil Nadu & Another (1974) 4 SCR 3; Maneka
Gandhi v. Union of India & Another 1978 (1) SCC 248;
Ramana Oayaram Sheffy v. International Airpott Authority of
India & Others (1979) 3 SCC 489; Kasturi Lal Lakshmi c
Reddy, represented by its Partner Kasturi Lal, Jammu &
Others v. State of Jammu & Kashmir & Another. (1980) 4
SCC 1. Learned counsel submitted that even a tax law can be
discriminatory and violative of Article 14 or confiscatory and
hence can be subjected to judicial review. Learned counsel 0
made reference to the decisions of this court in Chhotabhai
Jethabhai Patel & Co. v. Union of India & Another (1962)
Supp (2) SCR 1 and Kunnathat Thathunni Moopil Nair v. State
of Kera/a & Another AIR 1961 SC 552.
75. Shri Andhyarujina also submitted that the Act does not E
provide for any principle or guidelines for the fixation of the
compensation amount and the amount fixed is illusory,
compared to the value of the property taken away from the
company in exercise of the powers of eminent domain.
Learned senior counsel submitted that the inherent powers of F
public purpose and eminent domain are embodied in Article
300A, and Entry 42 List Ill, "Acquisition and Requisitioning of
Property" which necessarily connotes that the acquisition and
requisitioning of property will be for a public use and for
compensation, as it is the legislative head for eminent domain. G
Learned senior counsel also submitted that the twin
requirements of public purpose and compensation though seen
omitted from Article 300A, but when a person is deprived of
his property, those limitations are implied in Article 300A as
H
708 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A well as Entry 42 List Ill and a Constitutional Court can always
examine the validity of the statute on those grounds.
76. Learned senior counsel traced the legislative history
and various judicial pronouncements of this Court in respect of
B Articles 19(1)(f), 31(1) and 31(2) and submitted that those are
useful guides while interpreting Article 300A and the impugned
Act. Reference was made to the judgments of this Court in State
of Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga and Ors. (1952) 1 SCR 889; State of West Bengal
v. Union of India (1964) 1 SCR 371; Sub-Committee of
C Judicial Accountability v. Union of India & Others (1991) 4
SCC 699; /. R. Coelho(Dead) by LRs. v. State of Tami/ Nadu
(2007) 2 SCC 1; D. C. Wadhwa & Others v. State of Bihar &
Others (1987) 1 SCC 378 and Glanrock Estate Private
Limited. v. State of TamH Nadu (2010) 10 SCC 96.
D
77. Learned counsel further submitted that the action
depriving a person of just and fair compensation is also
amenable to judicial review under Artit ·~s 32 and 226 of the
Constitution of India, which is the quintessence of the rule of
E law, otherwise the Constitution would be conferring arbitrary and
unbridled powers on the Legislature, to deprive a person of his
property. Reference was made to the provisions of the
Constitutions of Australia and Republic of South Africa.
F 78. Mr. Patil, on the other hand, contended that, having
regard to the express language of Article 300A, the common
law limitations of eminent domain cannot be read into that Article
especially when, the right to property is no more a Fundamental
Right on deletion of Article 19(1)(f), Article 31(1) and (2).
Learned senior counsel submitted that the history of
G Constitutional Amendments shows that the Legislature in its
wisdom expressed its intention to do away with the requirement
of public purpose and compensation. Further, the adequacy of
the amount fixed by Legislature is also not amenable to judicial
review.
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 709
KARNATAKA [K.S. RADHAKRISHNAN, J.]
79. Learned senior counsel also referred to the decisions A
of this Court reported in Subodh Gopal Bose's case (supra),
Dwarakadas Shrinivas (1954) 1 SCR 674; Sir Kameshwar
Singh's case (supra), P. Vajravelu Mudaliar's case (supra) and
State of Gujarat v. Shanti/al Mangaldas & Others (1969) 1
sec 509. s
80. Learned senior counsel submitted that the impugned
Act has provided Rs.5 crore to meet various priorities, which
cannot be said to be illusory, especially when the Government
has withdrawn the exemption granted with respect to the land C
used for linaloe cultivation. Further, it was pointed out but for
impugned Act the Roerich's or the transferors would have got
only Rs.2 lakhs under Section 72 of the Land Reforms Act, if
they were in possession and ownership of the land.
81. Learned counsel submitted, in any view, sale deeds D
dated 23.03.1991 and 16.02.1992 would show that the
company had paid only a total sale consideration of
Rs.1,46, 10,000 for purchasing the lands from Roerichs' but the
transferees/owners and other claimants, if any, would get more
than what they had paid. Learned counsel also submitted that E
Section 19A also provides for principles/machinery for payment
of amount to the owners/interested persons and the amount is
to be apportioned among owners, transferees and interested
persons having regard to value on the appointed day i.e.
18.11.1996. Further learned counsel also submitted that the F
company has not perfected their title or possession over the
land and litigation is pending in the civil court between the
company and the other claimants.
82. Right to life, liberty and property were once considered
to be inalienable rights under the Indian Constitution, each one • G
of these rights was considered to be inextricably bound to the
other and none would exist without the other. Of late, right to
property parted company with the other two rights under the
Indian Constitution and took the position of a statutory right.
Since ancient times, debates are going on as to whether the H
710 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R
A right to property is a "natural" right or merely a creation of 'social
convention' and 'positive law' which reflects the centrality and
uniqueness of this right. Property rights at times compared to
right to life which determine access to the basic means of
sustenance and considered as prerequisite to the meaningful
B exercise of other rights guaranteed under Article 21.
83. Eminent thinkers like Hugo Grotius, Pufendorf, John
Locke,. Rousseau and William Blackstone had expressed their
own views on the right to property. Lockean rhetoric of property
C as a natural and absolute right but conventional in civil society
has, its roots in Aristotle and Aquinas, for Grotius and Pufendorf
property was both natural and conventional. Pufendrof, like
Grotius, never recognised that the rights of property on its
owners are absolute but involve definite social responsibilities,
and also held the view that the private property was not
D established merely for the purpose "allowing a man to avoid
using it in the service of others, and to brood in solitude over
his hoard or riches." Like Grotius, Pufendorf recognised that
those in extreme need may have a right to the property of
others. For Rousseau, property was a conventional civil right
E and not a natural right and private property right was
subordinate to the public interest, but Rousseau insisted that it
would never be in the public interest to violate them. With the
emergence of modern written constitutions in the late eighteenth
century and thereafter, the right to property was enshrined as
F a fundamental constitutional right in many of the Constitutions
in the world and India was not an exception. Blackstone
declared that so great is the regime of the law for private
property that it will not authorise the land violation if it - no, not
even for the general good of the whole community. Writings of
G the above mentioned political philosophers had also its
influence on Indian Constitution as well.
EMINENT DOMAIN
84. Hugo Grotius is credited with the invention of the term
H "eminent domain" (}us or dominium eminens) which implies
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 711
KARNATAKA [K.S. RADHAKRISHNAN, J.)
that public rights always overlap with private rights to property, A
and in the case of public utility, public rights take precedence.
Grotius sets two conditions on the exercise of the power of
eminent domain: the first requisite is public advantage and then
compensation from the public funds be made, if possible, to
the one who has lost his right. Application of the above principle B
varies from countries to countries. Germany, America and
Australian Constitutions bar uncompensated takings. Canada's
constitution, however, does not contain the equivalent of the
taking clause, and eminent domain is solely a matter of statute
law, the same is the situation in United Kingdom which does c
not have a written constitution as also now in India after the 44th
Constitutional Amendment.
85. Canada does not have an equivalent to the Fifth
Amendment taking clause of the U.S. Constitution and the
federal or provincial governments are not under any D
constitutional obligation to pay compensation for expropriated
property. Section 1(a) of the Canadian Bill of Rights does state
that, "The right of the individual to life, liberty, security of a
person and enjoyment of property and the right not to be
deprived thereof except by due process of law." E
86. In Australia, Section 51 (xxxi) of the Constitution
permits the federal government to make laws with respect to
"the acquisition of property on just terms from any State ·or
persons for any purpose in respect of which the Parliament has F
powers to make laws."
87. Protocol to the European Convention on Human Rights
and Fundamental Freedom, Article 1 provides that every natural
or legal person is entitled to the peaceful enjoyment of his
possession and no one shall be deprived of his possessions G
except in public interest and subject to the conditions provided
by law and by the several principles of International law.
88. Fifth Amendment of the U.S. Constitution says that the
government shall not take private property for public use without H
712 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A paying just compensation. This provision referred to as the
eminent domain, or taking clause has generated an enormous
amount of case laws in the United States of America.
89. The US Supreme Court in Hawaii Housing Authority
B v. Midkiff, 467 US 229 (1984) allowed the use of eminent
domain to transfer land from lesser to lessees. In that ruling the
court held the government does not itself have the use the
property to legitimate taking, it is a takings purpose and not
its mechanics that must pass the muster under the public use
clause. The US Supreme Court later revisited the question on
C what constitute public use in Keio v. City of New London (545
US 469 (2005). In that case the Court held that a plan of
economic development, that would primarily benefit a major
pharmaceutical company, which incidentally benefited the
public in the nature of increased employment opportunities and
D increased tax benefits was a 'public use'. The Court rejected
the arguments that takings of this kind, the Court should require
a 'reasonable certainty' that the respective public benefits will
actually accrue.
E 90. Eminent domain is distinguishable alike from the police
power, by which restriction are imposed on private property in
the public interest, e.g. in connection with health, sanitation,
zoning regulation, urban planning and so on from the power of
taxation, by which the owner of private property is compelled
F to contribute a portion of it for the public purposes and from
the war-power, involving the destruction of private property in
the course of military operations. T~e police power fetters rights
of property while eminent domain takes them away. Power of
taxation does not necessarily involve a taking of specific
G property for public purposes, though analogous to eminent
domain as regards the purposes to which the contribution of
the taxpayer is to be applied. Further, there are several
significant differences between regulatory exercises of the
police powers and eminent domain of deprivation of property.
Regulation does not acquire or appropriate the property for the
H
KT PLANTATION PVT. LTD. & ANR. v. STATE OF 713
' \' KARNATAKA [K.S. RADHAKRISHNAN, J.]
State, which appropriation does and regulation is imposed A
severally and individually, while expropriation applies to an
individual or a group of owners of properties.
91. The question whether the "element of compensation"
is necessarily involved in the idea of eminent domain arouses 8
much controversy. According to one school of thought (See
Lewis, Eminent Domain, 3rd Edition, 1909) opined that this
question must be answered in the negative, but another view
(See Randolph Eminent Domain in the United States (Boston
1894 [AWR]), the claim for compensation is an inherent C
attribute of the concept of eminent domain. Professor Thayer
(cases on Constitutional law Vol 1.953), however, took a middle
view according to which the concept of eminent domain springs
from the necessity of the state, while the obligation to reimburse
rests upon the natural rights of individuals. Right to claim
compensation, some eminent authors expressed the view, is D
thus not a component part of the powers to deprive a person
of his property but may arise, but it is not as if, the former
cannot exist without the other. Relationship between Public
Purpose and Compensation is that of "substance and shadow''.
Above theoretical aspects of the doctrine have been highlighted E
only to show the reasons, for the inclusion of the principle of
eminent domain in the deleted Article 31(2) and in the present
Article 30(1A) and in the 2nd proviso of Article 31A of our
Constitution and its apparent exclusion from Article 300A.
F
92. Our Constitution makers were greatly influenced by the
Western doctrine of eminent domain when they drafted the
Indian Constitution and incorporated the right to property as a
Fundamental Right in Article 19(1 )(f), and the element of public
purpose and compensation in Articles 31(2). Of late, it was felt G
that some of the principles laid down in the Directive Principles
of State Policy, which had its influence in the governance of the
country, would not be achieved if those articles were literally
interpreted and applied. The Directive Principles of the state
policy lay down the fundamental principles for the governance H.
714 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A of the country, and through those principles, the state is directed
to secure that the ownership and control of the material
resources of the community are so distributed as best to sub-
serve the common good and that the operation of the economic
system does not result in the concentration of wealth and means
8 of production to the common detriment. Further, it was also
noticed that the fundamental rights are not absolute but subject
to law of reasonable restrictions in the interest of the general
public to achieve the above objectives specially to eliminate
Zamindari system.
c 93. While examining the scope of the 8ihar Land Reforms
Act, 1950 conflicting views were expressed by the Judges with
regard to the meaning and content of Article 19(1)(f) and Article
31 as reflected in Sir Kameshwar Singh's case (supra). Suffice
it to say that the Parliament felt that the views expressed by the
D judges on the scope of Articles 19(1)(f) and 31 might come as
a stumbling block in implementing the various welfare
legislations which led to the First Constitutional Amendment
1951 introducing Articles 31A and 318 in the Constitution.
E 94. Article 31A enabled the legislature to enact laws to
acquire estates which also permitted the State in taking over
of property for a limited period either in the 'public interest' or
to 'secure the proper management of the property',
amalgamate properties, and extinguish or modify the rights of
F managers, managing agents, directors, stockholders etc.
Article provides that such laws cannot be declared void on the
grounds that they are inconsistent with Articles 14 and 19.
Article 318 protected the various lands reform laws enacted
by both the Parliament and the State Legislatures by stating
G that none of these laws, which are to be listed in the Ninth
Schedule, can become. void on the ground that they violated
any fundamental right.
95. This Court in a series of decisions viz. in State of West
Bengal v. Bella Banerjee & Others AIR 1954 SC 170 and
H State of West Bengal v. Subodh Gopal Bose AIR 1954 SC
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92 took the view that Article 31, clauses (1) and (2) provided A
for the doctrine of eminent domain and under clause (2) a
person must be deemed to be deprived of his property if he
was "substantially dispossessed" or his right to use and enjoy
the property was "seriously impaired" by the impugned law. The
Court held that under Article 31(1) the State could not make a B
law depriving a person of his property without complying with
the provisions of Article 31(2). In Bella Banerjee's case (supra),
this Court held that the legislature has the freedom to lay down
principles which govern the determination of the amount to be
given to the owners of the property appropriated, but the Court c
can always, while interpreting Article 31(1) and Article 31(2),
examine whether the amount of compensation paid is just
equivalent to what the owner had been deprived of.
96. The Parliament, following the above judgment, brought
in the Fourth Amendment Act of 1955 and amended clause (2) D
of Article 31 and inserted clause (2-A) to Article 31. The effect
of the amendment is that clause (2) deals with acquisition or
requisition as defined in clause (2-A) and clause (1) covers
deprivation of a person's property by the state otherwise than
by acquisition or requisition. The amendment enabled the State E
to deprive a person of his property by law. Under amended
clause (2), the property of a citizen could be acquired or
requisitioned by law which provides for compensation for the
property so acquired or requisitioned and either fixes the
amount of compensation or specifies the principles on which F
and the manner in which the compensation is to be determined.
However, it was also provided that no such law could be called
in question in any court on the ground that the compensation
provided by that law was not adequate.
97. This Court in Kavalappara Kottarathil Kochuni's case G
(supra) held that Articles 31 (1) and (2) are different
fundamental rights and that the expression 'law" in Article 31 (1)
shall be a valid law and that it cannot be a valid law, unless it
imposes a reasonable restriction in public interest within the
meaning of Article 19(5) and therefore be justiciable. H
716 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 98. The Constitution was again amended by the
Seventeenth Amendment Act of 1964, by which the State
extended the scope of Article 31A and Ninth Schedule to
protect certain agrarian reforms enacted by the Kerala and
Madras States and Jagir, lnar'n:·niuafi or any other grant.
B janmam, ryotwari etc. were included within the meaning of
"estate". It also added the 2nd proviso to clause (1) to protect
a person of being deprived of land less than the relevant land
ceiling limits held by him for personal cultivation, except on
payment of full market value thereof by way of compensation.
c 99. This Court in P. Vajrave/u Muda/iar's case (supra)
examined the scope of the Land Acquisition (Madras
Amendment) Act 1961 by which the lands were acquired for
the purpose of building houses which move was challenged
under Articles 31 and 14. The Court held that if the
D compensation fixed was illusory or the principles prescribed
were irrelevant to the value of the property at or about the time
of acquisition, it could be said that fhe Legislature had
committed a fraud on power and therefore the law was
inadequate. Speaking for the Bench, Justice Subha Rao stated
E that "If the legislature, through its ex facie purports to provide
for compensation or indicates the principles for ascertaining the
same, but in effect and substance takes away a property without
paying compensation for it, it will be exercising power it does
not possess. If the Legislature makes a law for acquiring a
F property by providing for an illusory compensation or by
indicating the principles for ascP.rtaining the compensation
which do not relate to the property acquired or to the value of
such property at or within a reasonable proximity of the date of
acquisition or the principles are so designed and so arbitrary
G that they do not provide for compensation at all, one can easily
hold that the legislature made the law in .fraud of its powers."
Justice Subha Rao reiterated his view in Union of India v.
Metal Corporation of India Ltd. & Another AIR 1967 SC 637.
100. In Shanti/al Mangaldas's case (supra), the validity of
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 717
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Bombay Town Planning Act 1958 was challenged before this A
Court on the ground that the owner was to be given market value
of land at date of declaration of scheme, which was not the just
equivalent of the property acquired, the Court held that after the
Fourth Amendment resulting in the changes to Article 31 (2) the
question of 'adequacy of compensation' could not be B
entertained. Justice Hidayatullah stated that the stance taken.
in the previous case by Justice Subha Rao as "obiter and not
binding". The validity of the Banking Companies (Acquisition
and Transfer of Undertakings) Act 1969 came up for
consideration before the eleven judges Bench of this Court in c
Rustom Cowasjee Cooper v. Union of India (1970) 2 SCC
298. The Act, it was pointed out, did lay down principles for
determination and payment of compensation to the banks,
which was to be paid for in form of bonds, securities etc., and
compensation would not fulfil the requirement of Article 31 (2). D
A majority of the judges accepted that view ~nd held that both
before and after the amendment to Article 31(2) there was a
right to compensation and by giving illusory compensation the
constitutional guarantee to provide compensation for an
acquisition· was not complied with. The Court held that the E
Constitution guarantees a right to compensation - an
equivalent in money of the property compulsorily acquired which
is the basic guarantee and, .therefore, the law must provide
compensation, and for determining compensation relevant
principles must be specified; if the principles are not relevant
the ultimate value determined is not compensation. F
101. The validity of Articles 19(1)(f) and (g) was also the
subject matter of I. C. Golaknath and Others v. State of Punjab,
AIR 1967 SC 1643. In that case, a large portion of the lands of
Golak Nath family was declared surplus under the Punjab G
Security of Land Tenures Act 1953. They challenged the act on
the grounds that it denied them their Constitutional Rights to
acquire and hold property and practice any profession. Validity
of Articles 19(1 )(f) and (g), the 17th Amendment, the 1st
Amendment and the 4th Amendment were also questioned. H
718 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Chief Justice Subha Rao speaking for the majority said that the
Parliament could not take away or abridge the Fundamental
Rights and opined that those rights form 'basic structure' of the
Constitution and any amendment to the Constitution can be
made to preserve them, not to annihilate.
B
102. The Parliament enacted the (24th Amendment) Act
1971, by which the Parliament restored the amending power
of the Parliament and also extended the scope of Article 368
which authorised the Parliament to amend any part of the
Constitution.
c
103. Parliament then brought in the 25th Amendment Act,
1971 by which Article 31 (2) was amended by which private
property could be acquired on payment of an "amount" instead
of "compensation". A new Article 31(C) was also inserted
D stating that "no law giving effect to the policy of the State
towards acquiring the principles specified in clause (b) or
clause (c) of Article 39 shall be deemed to be void on the ground
that it is inconsistent with, or takes away or abridges any of the
rights conferred by Article 14, Article 19 or Article 31; and no
E law containing a declaration that it is for giving effect to such
policy shall be called in question in any court on the ground that
it does not give effect to such policy.
104. The constitutionality of the above amendments was
also the sub1'ect matter in His Holiness Kesavananda Bharati
F Sripadaga/varu v. State of Kera/a & Another (1973) 4 SCC
225, which overruled the principles laid down in Gokalnath's
case (supra) and held that a Constitutional amendment could
not alter the basic structure of the Constitution, and hence Article
19(1 )(f) was not considered to be a basic feature of the
G Constitution, as later explained in Indira Nehru Gandhi v. Raj
Narain (1975) Supp. SCC 1.
105. We are in these cases, primarily concerned with the
scope of the Forty Fourth Amendment 1978, which deleted
H Article 19(1)(f) and Article 31 from the Constitution of India and
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 719
KARNATAKA [K.S. RADHAKRISHNAN, J.]
introduced Article 300A, and its impact on the rights of persons, A
who are deprived of their properties. We have extensively dealt
with the scope of Articles 19(1)(f) and Article 31 as interpreted
in the various decisions of this Court so as to examine the
scope and content of Article 300A and the circumstances which
led to its introduction. The Forty Fourth Amendment Act, B
inserted in Part XII, a new chapter: "Chapter IV - Right to
Property and inserted Article 300A, which reads as follows:-
"No person shall be deprived of property save by authority
of law."
c
106. Reference to the Statement of Objects and Reasons
of the 44th Amendment in this connection may be apposite.
Paragraphs 3, 4 and 5 of the Statement of Objects and Reasons
reads as follows:
D
"3. In view of the special position sought to be given
to fundamental rights, the right to property, which has been
the occasion for more than one Amendment of the
Constitution, would cease to be a fundamental right and
become only a legal right. Necessary amendments for this E
purpose are being made to Article 19 and Article 31 is
being deleted. It would, however, be ensured that the
removal of property from the list of fundamental rights would
not affect the right of minorities to establish and administer
educational institutions of their choice.
F
4. Similarly, the right of persons holding land for personal
cultivation and within the ceiling limit to receive
compensation at the market value would not be affected.
5. Property, while ceasing to be a fundamental right, would, G
however, be given express recognition as a legal right,
provision being made that no person shall be deprived of
his property save in accordance with law."
107. In Jilubhai Nanbhai Khachar & Others v. State of
H
720 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Gujarat & Another (1995) Supp. 1 SC 596, this Court examined
whether Section 69-A, introduced by the Gujarat Amendment
Act 8 of 1982 in the Bombay Land Revenue Code which dealt
with vesting mines, minerals and quarries in lands held by
persons including Girasdars and Barkhalidars in the State
B violated Article 300A of the Constitution. The Court held that
the 'property' in Article 300A includes mines, minerals and
quarries and deprivation thereof having been made by authority
of law was held to be valid and not violative of Article 300A.
108. Article 300A, when examined in the light of the
C circumstances under which it was inserted, would reveal the
following changes:
1. Right to acquire, hold and dispose of property has
ceased to be a fundamental right under the Constitution
D of India.
2. Legislature can deprive a person of his property only
by authority of law.
3. Right to acquire, hold and dispose of property is not a
E basic feature of the Constitution, bulonly a Constitutional
right.
4. Right to Property, since no more a fundamental right,
the jurisdiction of the Supreme Court under Article 32
F cannot be generally invoked, aggrieved person has to
approach the High Court under Article 226 of the
Constitution.
109. Arguments have been advanced before us stating that .
the concept of eminent domain and its key components be read
G into Article 300A and if a statute deprives a person of his
property unauthorizedly, without adequate compensation, then
the statute is liable to be challenged as violative of Articles 14,
19 and 21 and on the principle of rule of law, which is the basic
structure of our Constitution. Further it was also contended that
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 721
KARNATAKA [K.S. RADHAKRISHNAN, J.]
the interpretation given by this Court on the scope of Article A
31 (1) and (2) in various judgments be not ignored while
examining the meaning and content of Article 300A.
110. Article 300A proclaims that no person can be
deprived of his property save by authority of law, meaning B
thereby that a person cannot be deprived of his property merely
by an executive fiat, without any specific legal authority or
without the support of law made by a competent legislature. The
expression 'Property' in Art.300A confined not to land alone, it
includes intangibles like copyrights and other intellectual C
property and embraces every possible interest recognised by
law. This Court in State of W B. & Others v. Vishnunarayan
& Associates (P) Ltd & Another (2002) 4 SCC 134, while
examining the provisions of the West Bengal Great Eastern
Hotel (Acquisition of Undertaking) Act, 1980, held in the context
of Article 300A that the State or executive offices cannot D
interfere with the right of others unless they can point out the
specific provisions of law which authorises their rights. Article
300A, therefore, protects private property against executive
action. But the question that looms large is as to what extent
their rights will be protected when they are sought to be illegally E
deprived of their properties on the strength of a legislation.
Further, it was also argued that the twin requirements of 'public
purpose' and 'compensation' in case of deprivation of property
are inherent and essential elements or ingredients, or
"inseparable concomitants" of the power of eminent domain F
and, therefore, of entry 42, List Ill, as well and, hence, would
apply when the validity of a statute is in question. On the other
hand, it was the contention of the State that since the
Constitution consciously omitted Article 19(1)(f), Articles 31(1)
and 31(2), the intention of the Parliament was to do away the .. G
doctrine of eminent domain which highlights the principles of
public purpose and compensation.
111. Seervai ·in his celebrated book 'Constitutional Law
of India' (Edn. IV), spent a whole Chapter XIV on the 44th H
722 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R.
··,
A Amendment, while dealing with Article 300A. In paragraph 15.2
(pages 1157-1.158) the author opined that confiscation of
property of innocent people for the benefit of private persons
is a kind of confiscation unknown to our law and whatever
meaning the word "acquisition" may have does not cover
B "confiscation" for, to confiscate means "to appropriate to the
public treasury (by way of penalty)". Consequently, the law
taking private property for a public purpose without
compensation would fall outside Ef)try 42 List Ill and cannot be
supported by another Entry in List Ill. Requirements of a public
c purpose and the payment of compensation according to the
learned author be read into Entry 42 List Ill. Further the learned
author has also opined that the repeal of Article 19(1)(f) and
31 (2) could have repercussions on otherfundamental rights or
other provisions which are to be regarded as part of the basic
structure and also stated that notwithstanding the repeal of
0
Article 31 (2), the word "compensation" or the concept thereof
is still retained io Article 30(1A) and in the second proviso to
Article 31A(1) meaning thereby that payment of compensation
is a condition of legislative power in Entry 42 List Ill.
E 112. Learned senior counsel Shri T.R. Andhyarujina, also
referred to the opinion expressed by another learned author
Prof. P.K. Tripathi, in his article "Right to Property after 44th
Amendment - Better Protected than Ever Before" (reported in
AIR 1980 J pg. 49-52). Learned author expressed the opinion
F and the right of the individual to receive compensation when
his property is acquired or requisitioned by the State, continues
to be available in the form of an implied condition of the power
of the State to legislate on "acquisition or requisition of
property" while all the exceptions and limitations set up against
G and around it in Article 31, 31A and 31 B have disappeared.
Learned author opined that Article 300A will require obviously,
that the law must be a valid law and no law of acquisition or
requisitioning can be valid unless the acquisition or requisition
is for a public purpose, unless there is provision in law for
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 723
KARNATAKA [K.S. RADHAKRISHNAN, J.]
paying compensation, will continue to have a 111eaning given A
to it, by Bela Banerjee's case (supra),
113. Learned author, Shri S.B. Sathe, in his aNicle "Right
to Property after the 44th Amendment" (AIR 1980 Journal 97),
to some extent, endorsed the view of Prof. Tripathi and opined
B
that the 44th amendment has increased the scope of judicial
review in respect of right to property. Learned author has stated
although Article 300A says that no one shall be deprived of his
property save by authority of law, there is no reason to expect
that this provision would protect private property only against C
executive action. Learned author also expresses the wish that
Article 21 may provide viable check upon Article 300A.
114. Durga Das Basu in his book "Shorter Constitution of
India", 13th Edition, dealt with Article 300A in Chapter IV
wherein the learned author expressed some reservation about D
the views expressed by Seervai, as well as Prof. Tripathi
Learned author expressed the view, that after the 44th
amendment Act there is no express provision in the Constitution
outside the two cases specified under Article 30(1A) and the
second proviso to 31 (1A) requiring the State to pay E
compensation to an expropriated owner. Learned author also
expressed the opinion that no reliance could be placed on the
legislative Entry 42 of List Ill so as to claim compensation on
the touchstone of fundamental rights since the entry in a
legislative list does not confer any legislative power but only F
enumerates fields of legislation. Learned counsel on the either
side, apart from other contentions, highlighted the above views
expressed by the learned authors to urge their respective
contentions.
115. Principles of eminent domain, as such, is not seen G
incorporated in Article 300A, as we see, in Article 30(1A), as
well as in the 2nd proviso to Article 31A(1) though we can infer
those principles in Article 300A. Provision for payment of
compensation has been specifically incorporated in Article '
30(1A) as well as in the 2nd proviso to Article 31A(1) for H
724 SUPREME COURT REPORTS [2011] 13 (AODL.) S.C.R.
A achieving specific objectives. Constitution's 44th Amendment
Act, 1978 while omitting Article 31 brought in a substantive
provision Clause (1A) to Article 30. Resultantly, though no
individual or even educational institution belonging to majority
community shall have any fundamental right to compensation
B in case of compulsory acq11isition of his property by the State,
an educational institution belonging to a minority community
shall have such fundamental right to claim compensation in
case State enacts a law providing for compulsory acquisition
of any property of an educational institution established and
C administered by a minority community. Further, the second
proviso to Article 31A(1) prohibits the Legislature from making
a law which does not contain a provision for payment of
compensation at a rate not less than the market value which
follows that a law which does not contain such provision shall
D be invalid and the acquisition proceedings would be rendered
void.
116. Looking at the history of the various constitutional
amendments, judicial pronouncements and the statement of
objects and reasons contained in the 44th Amendment Bill
E which led to the 44th Amendment Act we have no doubt that
the intention of the Parliament was to do away with the
fundamental right to acquire, hold and dispose of the property.
But the question is whether the principles of eminent domain
are completely obliterated when a person is deprived of his
F property by the authority of law under Article 300A of the
Constitution.
PUBLIC PURPOSE
117. Deprivation of property within the meaning of
G Art.300A, generally speaking, must take place for public
purpose or public interest. The concept of eminent domain
which applies when a person is deprived of his property
postulates that the purpose must be primarily public and not
primarily of private interest and merely incidentally beneficial
H to the public. Any law, which deprives a person of his private
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 725
KARNATAKA [K.S. RADHAKRISHNAN, J.]
property for private interest, will be unlawful and unfair and A
undermines the rule of law and can be subjected to judicial
review. But the question as to whether the purpose is primarily
public or private, has to be decided by the legislature, which
of course should be made known. The concept of public
purpose has been 'given fairly expansive meaning which has B
to be justified upon the purpose and object of statute and the
policy of the legislation. Public purpose is, therefore, a condition
precedent, for invoking Article 300A. ·
COMPENSATION
c
118. We have found that the requirement of public purpose
is invariably the rule for depriving a person of his property,
violation of which is amenable to judicial review. Let us now
examine whether the requirement of payment of compensation
is the rule after the deletion of Article 31 (2). Payment of D
compensation amount is a constitutional requirement under
Article 30(1A) and under the 2nd proviso to Article 31A(1),
unlike Article 300A. After the 44th Amendment Act, 1978, the
constitutional obligation to pay compensation to a person who
is deprived of his property primarily depends upon the terms E
of the statute and the legislative policy. Article 300A, however,
does not prohibit the payment of just compensation when a
person is deprived of his property, but the question is whether
a person is entitled to get compensation, as a matter of right,
in the absence of any stipulation in the statute, depriving him F
of his property.
119. Before answering those questions, let us examine
whether the right to claim compensation on deprivation of one's
property can be traced to Entry 42 List Ill. The 7th Constitutional
Amendment Act, 1956 deleted Entry 33 List I, Entry 36 List II G
and reworded Entry 42 List Ill relating to "acquisition and
requisitioning of property". It was urged that the above words
be read with the requirements of public purpose and
compensation. Reference was placed on the following judgment
of this Court in support of that contention. In State of Madras H
726 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A v. Gannon Dunkerley & Co. (Madras) Ltd. (1959) SCR 379
at 413). this Court considered Entry 48 List II of the Government
of India Act, 1935, "tax on sales of goods", in accordance with
the established legal sense of the word "sale", which had
acquired a definite precise sense and held that the legislature
B must have intended the "sale", should be understood in that
sense. But we fail to see why we trace the meaning of a
constitutional provision when the only safe and correct way of
construing the statute is to apply the plain meaning of the words.
Entry 42 List 111 has used the words "acquisition" and
c ''requisitioning", but Article 300A has used the expression
"deprivation", though the word deprived or deprivation takes in
its fold "acquisition" and "requisitioning", the initial presumption
is in favour of the literal meaning since the Parliament is taken
to mean as it says.
D 120. A Constitution Bench of this Court in Hoechst
Pharmaceuticals Ltd. 's case (supra), held that the various
entries in List Ill are not "powers" of Legislation but "fields" of
Legislation. Later, a Constitution Bench of this Court in State
of West Bengal & Another v. Kesoram Industries Ltd. &
E Others Al R 2005 SC 1646, held that Article 245 of the
Constitution is the fountain source of legislative power. It
provides that subject to the provisions of this Constitution, the
Parliament may make laws for the whole or any part of the
territory of India, and the Legislature of a State may make laws
F for the whole or any part of the State. The legislative field
between the Parliament and the Legislature of any State is
divided by Article 246 of the Constitution. Parliament has
exclusive power to make laws with respect to any of the matters
enumerated in List I in Seventh Schedule, called the Union List
G and subject to the said power of the Parliament, the Legislature
of any State has power to make laws with respect to any of the
matters enumerated in List Ill, called the Concurrent List. Subject
to the above, the Legislature of any State has exclusive power
to make laws with respect to any of the matters enumerated in
H List II, called the State List. Under Article 248, the exclusive
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 727
KARNATAKA [K.S. RADHAKRISHNAN, J.]
power of the Parliament to make laws extends to any matter A
not enumerated either in the Concurrent List or State List.
12 i. We find no apparent conflict with the words used in
Entry 42 List Ill so as to infer that the payment of compensation
is inbuilt or inherent either in the words "acquisition and
B
requisitioning" under Entry 42 List Ill. Right to claim
compensation is, therefore, cannot be read into the legislative
Entry 42 List Ill. Requirement of public purpose, for deprivation
of a person of his property under Article 300A, is a pre-
condition, but no compensation or nil compensation or its C
illusiveness has to be justified by the state on judicially
justiciable standards. Measures designed to achieve greater
social justice, may call for lesser compensation and such a
limitation by itself will not make legislation invalid or
unconstitutional or confiscatory. In other words, the right to claim
compensation or the obligation to pay, though not expressly D
included in Article 300A, it can be inferred in that Article and it
is for the State to justify its stand on justifiable grounds which
may depend upon the legislative policy, object and purpose of
the statute and host of other factors.
E
122. Article 300A would be equally violated if the
provisions of law authorizing deprivation of property have not
been complied with. While enacting Article 300A Parliament
has only borrowed Article 31(1) [the "Rule of law" doctrine] and
not Article 31 (2) [which had embodied the doctrine of Eminent F
Domain]. Article 300A enables the State to put restrictions on
the right to property by law. That law has to be reasonable. It
must comply with other provisions of the Constitution. The
limitation or restriction should not be arbitrary or excessive or
what is beyond what is required in public interest. The limitation G
or restriction must not be disproportionate to the situation or
excessive. The legislation providing for deprivation of property
under Article 300A must be "just, fair and reasonable" as
understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc.
Thus in each case, courts will have to examine the scheme of H
728 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A the impugned Act, its object, purpose as also the question
whether payment of nil compensation or nominal compensation
would make the impugned law unjust, unfair or unreasonable
in terms of other provisions of the Constitution as indicated
above. At this stage, we may clarify that there is a difference
s between "no" compensation and "nil" compensation. A law
seeking to acquire private property for public purpose cannot
say that "no compensation shall be paid". However, there could
be a law awarding "nil" compensation in cases where the State
undertakes to discharge the liabilities charged on the property
c under acquisition and onus is on the government to establish
validity of such law. In the latter case, the court in exercise of
judicial review will test such a law keeping in mind the above
parameters.
123. Right to property no more remains an overarching
D guarantee in our Constitution, then is it the law, that such a
legislation enacted under the authority of law as provided in
Article 300A is immune from challenge before a Constitutional
Court for violation of Articles 14, 21 or the overarching principle
of Rule of Law, a basic feature of our Constitution, especially
E when such a right is not specifically incorporated in Article
300A, unlike Article 30(1A) and the 2nd proviso to Article 31A.
124. Article 31A was inserted by the 1st Amendment Act,
1951 to protect the Jamindari' Abolition Laws and also the other
F types of social, welfare and regulatory legislations effecting
private property. The right to challenge laws enacted in respect
of subject matter enumerated under Article 31A(1 )(a) to. (g) on
the ground of violation of Article 14 was also constitutionally
excluded. Article 31 B read with Ninth Schedule protects all laws
G even if they are violative of the fundamental rights, but in l.R.
Coe/ho's case (supra), a Constitution Bench of this Court held
that the laws added to the Ninth Schedule, by violating the
constitutional amendments after 24.12.1973, if challenged, will
be decided on the touchstone of right to freedom guaranteed
by Part Ill of the Constitution and with reference to the basic
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 729
KARNATAKA [K.S. RADHAKRISHNAN, J.]
structure doctrine, which includes reference under Article 21 A
read with Articles 14, 15 etc. Article 14 as a ground would also
be available to challenge a law if made in contravention of
Article 30(1A).
125. Article 265 states that no tax shall be levied or B
collected except by authority of law, then the essential
characteristics of tax is that it is imposed under statute power,
without tax payer's consent and the payment is enforced by law.
A Constitution Bench of this Court in Kunnathat Thathunni
Moopil Nair's case (supra) held that Sections 4, 5-A and 7 of
the Travancore-Cochin Land Tax Act are unconstitutional as C
being violative of Article 14 and was held to be in violation of
Article 19(1 )(f). Of course, this decision was rendered when the
right to property was a fundamental right. Article 300A, unlike
Articles 31A(1) and 31C, has not made the legislation depriving
a person of his property immune from challenge on the ground D
of violation of Article 14 or Article 21 of the Constitution of India,
but let us first examine whether Article 21 as such is available
to challenge a statute providing for no or illusory compensation
and, hence, expropriatory.
E
126. A Constitution Bench of this Court in Ambika Prasad
Mishra v. State of U.P. & Others (1980) 3 SCC 719, while
examining the constitutional validity of Article 31A, had occasion
to consider the scope of Article 21 in the light of the judgment
of this Court in Maneka Gandhi's case (supra). Dealing with F
the contention that deprivation of property amounts to violation
of the right guaranteed under Article 21 of the Constitution of
India, this Court held as follows:
"12. Proprietary personality was integral to personal liberty
and a mayhem inflicted on a man's property was an G
amputation of his personal liberty. Therefore, land reform
law, if unreasonable, violates Article 21 as expansively
construed in Maneka Gandhi. The dichotomy between
personal liberty, in Article 21, and proprietary status, in
Articles 31 and 19 is plain, whatever philosophical H
730 SUPREME COURT REPORTS [2011] 13 (ADDL.J. S.C.R
A justification or pragmatic realisation it may possess in
political or juristic theory. Maybe, a penniless proletarian,
is unfree in his movements and has nothing to lose except
his chains. But we are in another domain of constitutional
jurisprudence. Of course, counsel's resort to Article 21 is
B prompted by the absence of mention of Article 21 in Article
31-A and the illusory hope of inflating Maneka Gandhi to
impart a healing touch to those whose property is taken
by feigning loss of personal liberty when the State takes
only property, Maneka Gandhi is no universal nostrum or
c cure-all, when all other arguments fail!"
127. The question of applicability of Article 21 to the laws
protected under Article 31 C also came up for consideration
before this Court in State of Maharashtra & Another v.
Basantibai Mohan/al Khetan & Others (1986) 2 SCC 516.
D wherein this Court held that Article 21 essentially deals with
personal liberty and has little to do with the right to own property
as such. Of course, the Court in that case was not concerned
with the question whether the deprivation of property would lead
to deprivation of life or liberty or livelihood, but was dealing with
E a case, where land was acquired for improving living conditions
of a large number of people. The Court held that the Land
Ceiling Laws, laws providing for acquisition of land for providing
housing accommodation, laws imposing ceiling on urban
property etc. cannot be struck down by invoking Article 21 of '
F the Constitution. This Court in Ji/ubhai Nanbhai Khachar's case
(supra) took the view that the principle of unfairness of
procedure attracting Article 21 does not apply to the acquisition
or deprivation of property under Article 300A.
128. Acquisition of property for a public purpose may meet
G with lot of contingencies, like deprivation of livelihood, leading
to violation of Art.21, but that per se is not a ground to strike
down a statute or its provisions. But at the same time, is it the
law that a Constitutional Court is powerless when it confronts
with a situation where a person is deprived of his property, by
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 731
KARNATAKA [K.S. RADHAKRISHNAN, J.]
law, for a private purpose with or without providing A
compensation? For example, a political party in power with a
massive mandate enact a law to acquire the property of the
political party in opposition not for public purpose, with or
without compensation, is it the law, that such a statute is
immune from challenge in a Constitutional Court? Can such a s
challenge be rejected on the ground that statute does not violate
the Fundamental Rights (due to deletion of Art.19(1 )(f)) and that
the legislation does not lack legislative competence? In such
a situation, is non-availability of a third ground as propounded
in State of A.P. & Others v. Mcdowell & Co. & Others (1996) c
3 sec 709, is an answer? Even in Mcdowe/l's case (supra),
it was pointed out some other constitutional infirmity may be
sufficient to invalidate the sta.tute. A three judges Bench of this
Court in Mcdowell & Co. & Othef's"Gase (supra) held as follows:
"43 ........ The power of Parliament or for'that matter, the D
State Legislature is restricted in two ways. A law made
by Parliament or the legislature can be struck down by
courts on two grounds and two grounds alone, viz., (1) lack
of legislative competence and (2) violation of ahy of the
fundamental rights guaranteed in Part Ill of the Constitution E
or of any other constitutional provision. There is no third
ground ......... No enactinent can be struck down by just
saying that it is arbitrary or unreasonable. Some or other
constitutional infirmity has to be found before invalidating
an Act. An enactment cannot be struck down on the F
ground that court thinks it unjustified. Parliament and the
legislatures, composed as they are of the representatives
of the people, are supposed to know and be aware of the
needs of the people and what is good and bad for them.
The court cannot sit in judgment over their wisdom .......... " G
129. A two judges Bench of this Court in Union of India
& Another v. G. Ganayutham (1997) 7 SCC 463, after
referring to Mcdowell's case (supra) stated as u~der:
"that a statute can be struck down if the restrictions H
732 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A imposed by it are disproportionate or excessive having
regard to the purpose of the statute and that the Court can
go into the question whether there is a proper balancing
of the fundamental right and the restriction imposed, is well
settled."
B
130. Plea of unreasonableness, arbitrariness,
proportionality, etc. always raises an element of subjectivity on
which a court cannot strike down a statute or a statutory
provision, especially when the right to property is no more a
fundamental right. Otherwise the court will be substituting its
C wisdom to that of the legislature, which is impermissible in our
constitutional democracy.
131. In Dr. Subramanian Swamy v. Director, CBI & Others
(2005) 2 SCC 317, the validity of Section 6-A of the Delhi
D Special Police Establishment Act, 1946, was questioned as
violative of Article 14 of the Constitution. This Court after
referring to several decisions of this Court including Mcdowefl's
case (supra), Khoday Distilleries Ltd. & Others v. State of
Kamataka & Others (1996) 10 SCC 304, Ajay Hasia & Others
E v. Khalid Mujib Sehravardi & Others (1981) 1 SCC 722,
Mardia Chemicals Ltd. & Others v. Union of India & Others
(2004) 4 SCC 311, Malpe Vishwanath Achraya & Others v.
State of Maharashtra & Another (1998) 2 SCC 1 etc. felt that
the question whether arbitrariness and unreasonableness or
F manifest arbitrariness and unreasonableness being facets of
Article 14 of the Constitution are available or not as grounds
to invalidate a legislation, is a matter requiring examination by
a larger Bench and accordingly, referred the matter for
consideration by a Larger Bench.
G 132. Later, it is pertinent to note that a five-judges Bench
of this Court in Ashok Kumar Thakur v. Union of India &
Others (2008) 6 SCC 1 while examining the validity of the
Central Educational Institutions (Reservation in Admission) Act,
2006 held as follows:
H
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 733
KARNATAKA [K.S. RADHAKRISHNAN, J.]
219. A legislation passed by Parliament can be A
challenged only on constitutionally recognised grounds.
Ordinarily, grounds of attack of a legislation is whether the
legislature has legislative competence or whether the
legislation is ultra vires the provisions of the Cons'titution.
If any of the provisions of the legislation violates B
fundamental rights or any other provisions of the
Constitution, it could certainly be a valid ground to set
aside the legislation by invoking the power of judicial
review. A legislation could also be challenged as
unreasonable if it violates the principles of equality c
adumbrated in our Constitution or it unreasonably restricts
the fundamental rights under Article 19 of the Constitution.
A legislation cannot be challenged simply on the ground
of unreasonableness because that by itself does not
constitute a ground. The validity of a constitutional
0
amendment and the validity of plenary legislation have to
be decided purely as questions of constitutional
law ......... "
Court also generally expressed the view that the doctrines of
"strict scrutiny", "compelling evidence" and "suspect legislation" E
followed by the U.S. Courts have no application to the Indian
Constitutional Law.
133. We have already found, on facts as well as on law,
that the impugned Act has got the assent of the President as F
required under the proviso to Article 31A(1), hence, immune
from challenge on the ground of arbitrariness,
unreasonableness under Article 14 of the Constitution of India.
134. Statutes are many which though deprives a person
of his property, have the protection of Article 30(1A), Article G
31A, 31 B, 31 C and hence immune from challenge under Article
19 or Article 14. On deletion of Article 19(1(f) the available
grounds of challenge are Article 14, the basic structure and the
rule of law, apart from the ground of legislative competence. In
J.R. Coe/ho's case (supra), basic structure was defined in terms H
734 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R
A o'f fundamental rights as reflected under Articles 14, 15, 19, 20,
21 and 32. In that case the court held that statutes mentioned
in the IXth Schedule are immune from challenge on the ground
of violation of fundamental rights, but if such laws violate the
basic structure, they no longer enjoy the immunity offered, by
B the IXth Schedule.
135. The Acquisition Act, it may be noted, has not been
included in the IXth Schedule but since the Act is protected by
Article 31 A, it is immune from the challenge on the ground of
C violation of Article 14, but in a given case, if a statute violates
the rule of law or the basic structure of the Constitution, is it the
law that it is immune from challenge under Article 32 and Article
226 of the Constitution of India?
136. Rule of law as a concept finds no place in our
D Constitution, but has been characterized as a basic feature of
our Constitution which cannot be abrogated or destroyed even
by the Parliament and in fact binds the Parliament. In
Kesavanda Bharati's case (supra), this Court enunciated rule
. of law as one of the most important aspects of the doctrine of
E basic structure. Rule of law affirms parliament's supremacy
while at the same time denying it sovereignty over the
Constitution.
137. Rule of law can be traced back to Aristotle and has
been championed by Roman jurists; medieval natural law
F thinkers; Enlightenment philosophers such as Hobbes, Locke,
Rousseau, Montesquieu, Dicey etc. Rule of law has also been
accepted as the basic principle of Canadian Constitution order.
Rule of law has been considered to be as an implied limitation
on Parliament's powers to legislate. In Reference Re Manitoba
G Language Rights (1985) 1 SCR 721, the Supreme Court of
Canada described the constitutional status of the rule of law
as follows:
"The Constitution Act, 1982 ... is explicit recognition
H that "the rule of law is a fundamental postulate of our
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 735
KARNATAKA [K.S. RADHAKRISHNAN, J.]
constitutional structure." The rule of law has always been A
understood as the very basis of the English Constitution
characterising the political institutions of England from the
time of the Norman Conquest. It becomes a postulate of
our own constitutional order by way of the preamble to the
Constitution Act, 1982 and its implicit inclusion in the B
preamble to the Constitution Act, 1867 by virtue of the
words "with a Constitution similar in principle to that of the
United Kingdom."
Additional to the inclusion of the rule of law in the preamble C
of the Constitution Acts of 1867 and 1982, the principle
is clearly implicit in the very nature of a Constitution. The
Constitution, as the Supreme Law, must be understood as
a purposive ordering of social relations providing a basis
upon which an actual order of positive laws can be brought
into existence. The founders of this nation must have D
intended, as one of the basic principles of nation building,
tliat Canada be a society of Legal order and normative
structure: one governed by the rule of law. While this is not
set out in a specific provision, the principle of the rule of
law is clearly a principle of our Constitution." E
138. In Re: Resolution to Amend the Constitution (1981)
1 SCR 753, the Supreme Court 9f Canada utilized the i::rinciple
of rule of law to uphold legislation, rather than to strike it down.
The Court held that the implied principles of the Constitution F
are limits on the sovereignty of Parliament and the provincial
legislatures. The Court reaffirmed this conclusion later in
OPSEU v. Ontario (A.G.) (1987) 2 SCR 2. This was a case
involving a challenge to Ontario legislation restricting the
political activities of civil servants in Ontario. Although the Court G
upheld the legislation, Beetz. J described the implied limitations
in the following terms:
'There is no doubt in my mind that the basic structure of
our Constitution, as established by the Constitution Act,
1867, contemplates the existence of certain political H'
736 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A institutions, including freely elected legislative bodies at the
federal and provincial levels. In the words of Duff C.J. in
Reference re Alberta Statutes "such institutions derive
their efficacy from the free public discussion of affairs" and,
in those of Abbott J. in Switzman v. Elbling ... neither a
B provincial legislature nor Parliament itself can "abrogate
this right of discussion and debate." Speaking more
generally, I hold that neither Parliament nor the
provincial legislatures may enact legislation the effect of
which would be to substantially interfere with the operation
c of this basic constitutional structure. "
139. The Canadian Constitution and Courts have,
therefore, considered the rule of law as one of the "basic
structural imperatives" of the Constitution. Courts in Canada
have exclusively rejected the notion that only "provisions" of the
D Constitution can be used to strike down legislation and comes
down squarely in favour of the proposition that the rule of Jaw
binds legislatures as well as governments.
140. Rule of law as a principle contains no explicit
E substantive component like eminent domain but has many
shades and colours. Violation of principle of natural justice may
undermine rule of law resulting in arbitrariness,
unreasonableness etc., but such violations may not undermine
rule of law so as to invalidate a statute. Violation must be of
F such a serious nature which undermines the very basic structure
of our Constitution and our democratic principles. But once the
Court finds, a Statute, undermines the rule of law which has the
status of a constitutional principle like the basic structure, the
above grounds are also available and not vice versa. Any law
G which, in the opinion of the Court, is not just, fair and reasonable,
is not a ground to strike down a Statute because such an
approach would always be subjective, not the will of the people,
because there is always a presumption of constitutionality for
a statute.
H 141. Rule of law as a principle, it may be mentioned, is
K.T. PLANTATION PVT. LTD. & ANR. v. STATE OF 737
KARNATAKA [K.S. RADHAKRISHNAN, J.]
not an absolute means of achieving the equality, human rights, A
justice, freedom and even democracy and it all depends upon
the nature of the legislation and the seriousness of the violation.
Rule of law as an overarching principle can be applied by the
constitutional courts, in rarest of rare cases, in situations, we
have referred to earlier and can undo laws which are tyrannical, B
violate the basic structure of our Constitution, and our cherished
norms of law and justice. One of the fundamental principles of
a democratic society inherent in all the provisions of the
Constitution is that any interference with the peaceful enjoyment
of possession should be lawful. c
142. Let the message, therefore, be loud and clear, that
rule of law exists in this country even when we interpret a
statute, which has the blessings of Article 300A. Deprivation
of property may also cause serious concern in the area of
foreign investment, especially in the context of International Law D
and international investment agreements. Whenever, a foreign
investor operates within the territory of a host country the investor
and its properties are subject to the legislative control of the
host coantry, along with the international treaties or agreements.
Even, if the foreign investor has no fundamental right, let them E
know, that the rule of law prevails in this country.
143. We, therefore, answer the reference as follows:
(a) Section 110 of the Land Reforms Act and the
notification dated 8.3.94 are valid, and there is no excessive
F
delegation of legislative power on the State Government.
(b) Non-laying of the notification dt.8.3.94 under Section
140 of the Land Reforms Act before the State Legislature is a
curable defect and it will not affect the validity of the notification G
or action taken thereunder.
(c) The Acquisition Act is protected by Article 31A of the
Constitution after having obtained the assent of the President
H
738 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A and hence immune from challenge under Article 14 or 19 of the
Constitution.
(d) There is no repugnancy between the provisions of the
Land Acquisition Act, 1894 and the Roerich and Devika Rani
B Roerich Estate (Acquisition & Transfer) Act, 1996 (in short the
"Acquisition Act") and hence no assent of the President is
warranted under Article 254(2) of the Constitution.
(e) Public purpose is a pre-condition for deprivation of a
person from his property under Article 300A and the right to
C claim compensation is also inbuilt in that Article arid when a
person is deprived of his property the State has to justify both
the grounds which may depend on scheme of the statute,
legislative policy, object and purpose of the legislature and
other related factors.
D
(f) Statute, depriving a person of his property is, therefore,
amenable to judicial review on grounds hereinbefore discussed.
144. We accordingly dismiss all thl ::ippeals and direct the
notified authority under the Acquisition Act to disburse the
E amount of compensation fixed by the Act to the legitimate
claimants in accordance with law, which will depend upon the
outcome of the pending litigations between the parties. Further,
we also order that the land acquired be utilized only for the
purpose for which it was acquired. In the facts and
F circumstances of the case, there will be no order as to costs.
B.B.B. Appeals dismissed.
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