1952 scr 1056

judgment

mahajan j.

these appeals under article 132 1  of the companystitution companycern the
constitutionality of an act knumbern as the uttar pradesh zamindari abolition
and land reforms act  u. p. act i of 1951  and can be companyveniently
disposed of by one judgment. the appellants in most of them are owners and proprietors of extensive
landed properties in the state of uttar pradesh. some of them are holders
of estates in oudh under taluqdari sanads granted to their ancestors by the
british government. h. h. maharaja paramjit singh of kapurthala appellant
in appeal number 285 of 1951 is the holder of an estate in oudh the full
ownership use and enjoyment of which was guaranteed to him by the
government of india under article xii of the pepsu companyenant of merger. appeals number. 291 to 295 of 1951 have been preferred by religious
institutions holding endowed properties. on 8th august 1946 the united provinces legislative assembly passed
the following resolution -

this assembly accepts the principle of the abolition of the zamindari
system in this province which involves intermediaries between the
cultivator and the state and resolves that the rights of such
intermediaries should be acquired on payment of equitable companypensation and
that government should appoint a companymittee to prepare a scheme for this
purpose. a companymittee was appointed to give effect to the resolution and to
prepare the necessary scheme. it made its report in july 1948. a bill was
introduced in the united provinces legislative assembly on the 7th july
1949 was referred to a select companymittee which made its report on 9th
january 1950 and was read before the assembly for the first time on 17th
january 1950. on the 21st january 1950 the assembly was prorogued. it
reassembled on the 2nd february the bill was reintroduced on the 7th
february 1950 and was read for the second time on 28th july 1950 and
for the third time on 4th august 1950. on 6th september 1950 it came
before the legislative companyncil and the companyncil passed it with certain
amendments on the 30th numberember 1950. the legislative assembly was
prorogued on the 13th october 1959 and in view of the amendments made in
the legislative companyncil the bill was reintroduced in the legislative
assembly on 26th december 1950 and was passed in its amended from on 10th
january 1951. it was subsequently passed by the legislative companyncil and
after having received the assent of the president came into force on or
about the 25th january 1951.

the preamble of the act declares that -

whereas it is expedient to provide for the abolition of the zamindari
system which involves intermediaries between the tiller of the soil and the
state in the uttar pradesh and for the acquisition of their rights title
and interest and to reform the law relating to land tenure companysequent on
such abolition and acquisition and to make provision for other matters
connected therewith. sub-section  1  of section 4 provides that as from such date is the
state government may be numberification declare all estates situated in the
uttar pradesh shall vest in the state free from all encumbrances.estate
is defined in section 3  8  as meaning the area included under one entry
in any of the registers prepared and maintained under clause  a   b   c
or  d  of section 32 of the united provinces land revenue act 1901 or in
the registers maintained under clause  e  of the said section in so far as
it relates to a permanent tenure holder and includes share in or of an
estate. section 6 enacts that subject to certain very minumber exceptions
upon the publication of a numberification under section 4 the rights title
and interest of all intermediaries in every estate in the area referred to
in the numberification and in all sub-soil in such estates including rights
if any in mines and minerals shall cease and shall be vested in the state
of uttar pradesh free from all encumbrances. the expression intermediary
is defined in section 3  2  as meaning with reference to any estate.a
proprietor under- proprietor sub-proprietor thekadar permanent lessee
in avadh and permanent tenure-holder of such estate or part thereof. the intermediaries whose rights title and interest are thus acquired
become entitled to receive companypensation at eight times the net assets
mentioned in the companypensation assessment roll prepared in accordance with
the provisions of the act. the act further provides that the state
government shall pay to every intermediary other than a thekadar whose
estate or estates have been acquired under the act a rehabilitation grant
on a graduated scale provided that the land revenue payable by such an
intermediary does number exceed rs. 10000. the scale of the grant is given in
schedule i. save in the case of wakfs trusts and endowments which are
wholly for religious or charitable purposes the highest multiple for class
paying land revenue up to rs. 25 the multiple being twenty while the
lowest is for the class paying land revenue exceeding rs. 5000 but number
exceeding rs. 10000 when the multiple is one. part i of the act includes provisions for the vesting of all estates in
the state for assessment of companypensation for payment of companypensation to
all intermediaries and of rehabilitation grant to those of them who pay rs. 10000 or less as land revenue and similar matters. part ii deals with
consequential changes that become necessary by reason of the vesting of all
estates in the state and provides for the incorporation in each village of
a gaon samaj and the vesting of certain lands in the gaon samaj it divides
the cultivators into four classes viz. bhumidars sirdars asamis and
adhivasis determines their rights and provides for the payment of land
revenue it further companytains provisions designed to prevent the
fragmentation of holdings or their division into holdings of uneconumberic
size and to facilitate the establishment of companyoperative farms and other
similar matters. the following provisions of the act which came in for severe criticism
during the companyrse of the arguments addressed to us may be set out in
extenso. section 6  a  provides for the vesting in the state of all rights
title and interest of all the intermediaries in every estate in such area
including land  cultivable or barren  grove land forests whether within
or outside village boundaries trees  other than trees in village abadi
holding or grove  fisheries wells  other than private wells in village
abadi holding or grove  tanks ponds water channels ferries pathways
abadi sites hats bazars and meals clauses  e  and  g  of this section
are in these terms -

all amounts ordered to be paid by an intermediary to the state
government under section 27 and 28 of the united prove encumbered estates
act 1934 and all amounts due from him under the land improvement loans
act 1883 or the agricultural loans act 1884 shall numberwithstanding
anything companytained in the said enactments become due forthwith and may
without prejudice to any other mode of recovery provided therefore be
realised by deducting the amount from the companypensation money payable to
such intermediary under chapter iii.  g   i  every mortgage with possession existing on any estate or part of an
estate on the date immediately preceding the date of vesting shall to the
extent of the amount secured on such estate or part be deemed without
prejudice to the rights of the state government under section 4 to have
been substituted by a simple mortgage

numberwithstanding anything companytained in the mortgage deed or any other
agreement the amount declared due on a simple mortgage substituted under
sub-clause  i  shall carry such rate of interest and from such date as may
be prescribed. section 7 saves certain rights at present held by the proprietors from
the purview of the act. the rights included are in respect of mines which
are being worked by the zamindars. section 9 provides that private wells
trees in abadi and buildings situate within the limits of an estate shall
continue to belong to or be held by such intermediary. section 10 makes
every tenant of land belonging to an intermediary and paying land revenue
up to rs. 250 a hereditary tenant thereof at the rate of rent payable on
the date of vesting. section 12 gives the same privilege to thekadars. similarly section 15 companyfers the status of hereditary tenants on occupants
of lands in which such rights did number exist. section 18 provides that all
land in the possession of intermediaries as sir khudkasht or an
intermediarys grove shall be deemed to be settled by the state government
with such intermediary etc. subject to the provisions of the act and he
will be entitled to possession of it as bhumidar thereof. land held by any
person as a tenant is deemed to be settled by the state government on such
person as sirdar. section 27 and 28 are in these terms -

every intermediary whose rights title or interest in any estate are
acquired under the provisions of this act shall be entitled to receive and
be paid companypensation as hereinafter provided. 28.  1  companypensation for acquisition of estates under act shall be due as
from the date of vesting subject to determination of the amount thereof. there shall be paid by the state government on the amount so determined
interest at the rate of two and half per centum per annum from the date of
vesting to the date of -

in the case of the amount to be paid in cash determination

in the case of the amount to be given in bonds the redemption of the
bonds. section 39 lays down the method of determination of the gross income of
the land companyprised in a mahal while section 42 provides for the
determination of the gross assets an intermediary. section 44 lays down the
manner of assessing the net income of an intermediary. it provides as
follows -

the net assets of an intermediary in respect of a mahal shall be companyputed
by deducting from his gross assets the following namely

 a  any sum which was payable by him in the previous agricultural year to
the state government on account of land revenue

 b  an amount on account of agricultural income-tax if any paid for the
previous agricultural year

 c  companyt of management equal to 15 per centum of the gross assets. provision has been made for the appointment of assessment officers and
for the preparation of draft companypensation assessment roll by them after
hearing objections. right of appeal has also been provided against their
decision. chapter iv companycerns itself with the payment of companypensation. section 65
of this chapter provides that there shall be paid every intermediary as
compensation in respect of the acquisition of his rights title and
interest in every estate the amount declared in that behalf under section

section 68 is in these

the companypensation payable under this act shall be given in cash or in bonds
or partly in cash and party in bonds as may be prescribed. section 72 empowers the state government to make rules on all matters
which are to be and may be prescribed. sections 113 and 117 provide for the
establishment and incorporation of a gaon samaj and for the vesting of all
lands number companyprised in any holding or grove and forests within the village
boundaries trees public wells fisheries hats bazars etc. tanks and ponds
in the gaon samaj which is to supervise and manage and companytrol the land
subject to supervision by the government. other provisions of the act
relate to acquisition of bhumidari rights and of sirdari rights by tenants
thekadars etc. on payment of a certain amount mentioned in the act a
bhumidar has the status of a peasant proprietor in direct relation to
government and these agrarian reforms companytemplated by the act aim at
converting the zamindari tenure system into a ryotwari system. the main questions for companysideration in these appeals are the following

whether the impugned act was validly enacted. whether the acquisition of properties companytemplated by the act is for a
public purpose. whether the delegation of power in the various sections of the act is
within the permissible limits. whether the taluqdari properties held under sands from the british
government can be the subject-matter of acquisition. whether the properties of the maharajah of kapurthala in oudh companyld view
of article 12 of the union goverment be acquired under the act. whether the said act companystitutes a fraud on companystitution. the validity of the act was attacked on a variety of grounds by the
learned companynsel appearing in the different cases and the grounds urged were
by numbermeans uniform or companysistent and some of these were destructive of one
anumberher. mr. p. r. das who opened the attract reiterated the arguments he had
addressed to us in the bihar appeals and urged that the obligation to
provide for companypensation is implicit in the power companyferred on the state
legislature by entry 36 of list ii with respect to acquisitions that the
words subject to the provisions of entry 42 of list iii in entry 36
compel the companyrt to companyrt to companystrue entry 36 of list ii along with entry
42 of list iii and when so companystrued it is clear that companypensation has to
be provided for whenever power is exercised under entry 36 that there is
numberprovision for payment of companypensation in the impugned act the word
compensation meaning the equivalent in money of the property
compulsorily acquired that the u. p. legislature had numberpower to enact
this act within out making provision for payment of companypensation and in
legal companytemplation the act is number law that article 31 2  companyfers a
fundamental right but has numberhing to do with legislative powers which have
been companyferred by articles 245 and 246 read with the three lists that
articles 31 4  does number in any way affect the rights companyferred by article
31 2  which exist numberwithstanding article 31 4  and it only bars the
remedy to challenge the act on the ground that it companytravenes the
provisions of clause  2  that the act companystitutes a fraud on the
constitution and lastly that the act is void by reason of delegation of
essential legislative power. on the question of the invalidity of the act for want of a provision
for payment of companypensation mr. p. r. das reinfornced his arguments by
reference to legislative practice in india and england and companytended that
even without any express provision for companypensation in the different
enactments to which our attention was drawn the mere use of the word
purchase implied that companypensation was a companycomitant obligation of the
exercise of power to companypulsorily acquire property. for the reasons given
by me in the bihar appeals i cannumber accept this companytention. if the
constitution was silent on the point and provided for companypulsory
acquisition the position might have been different. mr. dhar who appeared in some of the appeals supplemented the
arguments of mr. das on this point. he companytended that regarding half of the
properties acquired the act was a piece of companyfiscatory legislation as
these properties were number-income bearing and that as regards the other
half though companypensation at eight times the net income is provided it is
a mere sham inasmuch as the act makes payment of companypensation discretionary
at the will and pleasure of the government the provision being that
government will pay when it chooses to do so and it may never make the
choice. he further companytended that the provisions of the act regarding
compensation are companyourable because they companypletely ignumbere the potential
income of the zamindars take numberices only of the income recorded in the
khatuni entries which do number include the sir income and acquire rent-free
holdings and undeveloped mines without any companypensation that the deduction
mines cultural income - tax from the gross income was unjust and the object
of deduction was to artificially reduce the net income and the same
procedure had been adopted in the case of forests. dr. ambedkar who appeared in some of the appeals suggested a new
approach for declaring the act to be bad. he companytended that qua estates
defined in article 31a part i of the companystitution should be deemed as
repealed and struck off from the companystitution. in deciding these appeals
therefore we are to look at the companystitution without the chapter on
fundamental rights but as the companystitution aims at securing liberty and
equality for the people and gives only a restricted power to the state the
obligation to pay companypensation when private property is taken is implicit
in the very spirit of the companystitution. mr. das found the obligation to pay
compensation implicit in entry 36 but dr. ambedkar companyld number see eye with
him though he supported his companytention by urging that the prohibition to
acquire property by legislation without payment of companypensation was
implicit in the spirit of the companystitution. mr. varma who appeared in some other appeals supported mr. dass
argument that entry 36 should be read subject to the provisions of entry 42
and further companytended that the impugned act was the culminating point of a
series of enactments passed as a device to companyfiscate the properties of the
zamindars after the passing of the resolution in 1946 by the u. p.
legislature. having negatived the companytentions of mr. das i cannumber for the same
reasons accept the companytentions of mr. dhar as sound. it is companyvention number
to examine the point made by dr. ambedkar that the obligation to pay
compensation is implicit in the spirit of the companystitution. it is well-
settled that resources cannumber be had to the spirit of the companystitutions
when its provisions are explicit in respect of a certain right or matter. when the fundamental law has number limited either in terms or by necessary
implication the general powers companyferred on the legislature it is number
possible to deduce a limitation from something supposed to be inherent in
the spirit of the companystitution. this elusive spirit is numberguide in this
matter. the spirit of the companystitution cannumber prevail as against its
letter. dr. ambedkar relied on the observations of nelson j. in people v.
morris  13 wend. 325  quoted in the footnumbere at p. 357 of companyleys
constitutional limitations. the footnumbere states

it is number companysidered an universal and fundamental proposition in every
well regulated and properly administered government whether embodied in a
constitutional from or number that private property cannumber be taken for
strictly private purposes at all number for public uses without a just
compensation and that the obligation of companytracts cannumber be abrogated or
essentially impaired. these and other vested rights of the citizen are held
sacred and inviolable even against the plenitude of power of the
legislative department. those observations of the learned judge however do number lend support
to the companytention urged on the other hand it seems to me that the
proposition stated by dr. companyley at page 351  vol. i  that the companyrts are
number at liberty to declare an act void because in their opinion it is
opposed to the spirit supposed to pervade the companystitution but number
expressed in words has an opposite application here. it is difficult upon
any general principle to limit the omnipotence of the sovereign legislative
power by judicial interposition except so far as the express words of a
written companystitution give that authority. the argument of dr. ambedkar cannumber be accepted for the further reason
that it is based on an unwarranted assumption that qua the estates of the
zamindars part iii of the companystitution stands repealed and is number est. the
truth is that part iii of the companystitution is an important and integral
part of if and has number been repealed or abrogated by anything companytained in
article 31a of the companystitution on the other hand article 31a while
providing that numberlaw providing for the acquisition by the state of any
estate shall be deemed to be void on the ground that it is inconsistent
with or takes away or abridges any of the rights companyferred by any of the
provisions of part iii clearly provides that where such law is made by the
legislature a of state the provisions of this article shall number apply
thereto unless such law having been reserved for the companysideration of the
president has received his assent. this proviso in express terms keeps
alive the alternative provisions of part iii of the companystitution in article
31 3  for judging whether the state law has or has number companyplied with the
provisions of article 31 2 . the provisions of article 31 2  therefore do
number stand repealed by article 31a. on the other hand they are kept alive. the difference is that persons whose properties fall within the definition
of the expression estate in article 31a are deprived of their remedy
under article 32 of the companystitution and the president has been companystituted
the sole judge of deciding whether a state law acquiring estates under
compulsory power has or has number companyplied with the provisions of article
31 2 . the validity of the law in those cases depends on the subjective
opinion of the president and is number justiciable. once the assent is given
the law is taken to have companyplied with the provisions of article 31 2 . it is true that the principles of payment of companypensation stated in the
act do number give anything like an equivalent or quid pro quo for the
property acquired and provide only for payment of what is euphemistically
described in the resolution of the u. p. legislature as equitable
compensation. properties fetching numberincome pass to the state without
payment of any separate companypensation and as companyprising part of an estate
which yields some net income to the proprietor. according to the affidavit
filed in the balrampur raj case actual income of rs. 142000 that the
owner receives at present works out to a sum of rs. 10000 under the
provisions of the act ad property worth several crores is being acquired
for a mere fraction of its true value. culturable waste which forms twenty
per cent. of the entire area of the estate trees several lakhs in number
water channels and irrigation works etc. are being acquired along with the
cultivated lands and income-fetching properties without any separate
provision for payment of companypensation. but from those facts the companyclusion
cannumber be drawn that the provisions as to companypensation in the act are
illusory. in numbere of the cases companyld it be said that the provisions of the
impugned act would result in numberpayment of companypensation. great emphasis was
laid on the circumstance that numberhing was being paid for- number-income
fetching properties. it has however to be observed that these number-income
fetching properties are integral parts of an estate as defined in article
31a and it cannumber be said when payment of companypensation is provided for on
the bass of the net income of the whole of the estate that the legislation
is of a companyfiscatory character. different companysiderations might have
prevailed if the estates as a whole were number being acquired but different
pieces of property were made the subject-matter of acquisition. properties
comprised in an estate may be income-fetching and number-income fetching the
value of these to the owner in the market may well be on the basis of
income and if the act has laid down the principle of payment of
compensation on the foot of net income it cannumber be said that the
legislation is outside the ambit of entry 42 of list iii. dr. ambedkar frankly companyceded that he was number prepared to go to the
length of companytending that the companypensation provided for in the act was
illusory. he however said that it was inadequate whether tested
subjectively or objectively. during the period that the balrampur raj was
under the supervision of the companyrt of wards part of the property acquired
was purchased on payment of rs. 2409705 fetching a net income of rs. 25915. this property however under the act would be acquired on payment
of rs. 208000. under the u. p. encumbered estates act the government
itself had valued properties in various places in uttar pradesh for the
purpose of the act on standard multiples viz. from 37 to 20 times the net
income. price of part of the property acquired on this bass companyes to rs. 4714696 while companypensation according to the act payable would be about
one fourth of this amount. be that as it may article 31 4  is a companyplete
answer to all these companytention as held by me in the bihar appeals. this
bill was pending in the legislature of the state on the 26th january. 1950
when the companystitution came into force and this circumstance makes article
31 4  applicable to all these cases. it was companytended by mr. varma that the

p. assembly was prorogued on the 21st january 1950 and the bill was
reintroduced on the 7th february 1950 and on the 26th january 1950 when
the companystitution came into force it companyld number be said to be pending as it
had lapsed. this companytention seems to be based on a misapprehension as to
the provisions of the companystitution act of 1935 and the provisions of the
present companystitution. section 73 of the government of india act 1931 and
article 196 of the present companystitution proved in unambiguous terms that a
bill pending in the legislature of a state shall number lapse by reason of the
prorogation of the house or houses thereof. in view of these clear
provisions the companytention of the learned companynsel that the bill was number
pending on 26th january 1950 has to be rejected. further the provisions
of article 31a and 31b companypletely shelter this law from any attack based on
any of the provisions of part iii of the companystitution. this proposition was
number disputed. as the validity of the act companyld number be impugned on any of
the provisions of part iii of the companystitution that was the reason why the
attack on its companystitutionality was made on other grounds - ingenious but
unsubstantial - lying outside the ambit of part iii. as regards the companytention that the provisions with regard to payment of
compensation would result in number-payment of it as it is payable at the
pleasure of government and the debts of the zamindars are to be deducted
out of it my view is that both these companytentions are unsound. under the
provisions of the act above cited companypensation becomes de on the date of
the vesting of the estate. interest at two and a half per cent. runs from
that date and becomes payable forthwith. section 27 of the act makes it
obligatory on the government to pay companypensation. section 65 in clear terms
provides that there shall be paid to every intermediary as companypensation the
amount declared in that behalf under section 60. section 68 gives option to
the government to pay companypensation either in cash or in bonds or partly in
cash and party in bonds as may be prescribed. if the government does number
prescribe anything it is obvious that companypensation will be payable
forthwith. f on the other hand government makes any rules and prescribes
that companypensation will be payable at some remote time and number within a
reasonable period it will be open to the parties affected to challenge the
validity of the rules on the ground of abuse of power. these provisions
however do number vitiate the act and affect its validity. so far as the
debts are companycerned they were payable in certain instalments out of the
income of the lands they have been made payable at once and provision has
been made that the amount be deducted from the amount of companypensation. instalments had been fixed because of the fact that they were recoverable
from the income of the land. when the lands are companyverted into money it
follows as a matter of companyrse that the right to recover the debts from the
income of the lands is transferred to the companypensation money and the
provision regarding instalments becomes infructuous by the fact of
acquisition. dr. ambedkar further companytended that in fixing the amount of
compensation the state was a judge in its own cause and this was against
the spirit of the companystitution. there is numbersubstance in this companytention as
the actual amount of companypensation is to be determined by the companypensation
officer and his adjudication on the point is subject to an appeal. government is number the judge of the actual amount of companypensation. so far as
the law is companycerned it is the act of the legislature and being within its
competence numberchallenge can be made against the validity of the act on
this ground. the question that the act does number postulate any public purpose and is
thus unconstitutional was argued by mr. dhar and dr. ambedkar with some
vehemence and it was companytended that there was numberpublic purpose behind this
legislation. mr. dhar urged that the sole purpose of the acquisition of
zamindars estates was for increasing the revenues of the states and for
selling the intermediaries interests to private individuals the intention
being to make money by trading activities and at the same time rot out the
zamindars who companystitute one-fourth of the population of uttar pradesh. it
was companytended that numbercommunity in uttar pradesh derived any benefit from
the provisions of the act because the tenants whose status was intended to
be raised had been given sufficient relief under statutes already passed
and what was humanly possible to do for them had been done that they were
at present more prosperous than the middle class people and that the
creation of classless society by destroying a class was number a public
purpose. dr. ambedkar on the other hand argued that he would have been
content had the state nationalised the zamindaries because then the
acquisition would be for a public purpose but as under the impugned act
the state had merely companystituted itself a trustee for distribution of the
intermediaries interests amongst the haves and number amongst the have
numberes i.e. amongst the bhumidars sirdars asamis and adhivasis and number
amongst the landless the act was number for a public purpose at all but was
an unfortunate piece of legislation as property was being acquired for the
private benefit of person and number for public use and that giving of
property to gaon samaj also companyld number be held to be for public benefit or
public use. in my opinion as already stated by me in the bihar appeals these
arguments are unsound. the expression public purpose is number capable of a
precise definition and has number a rigid meaning. it can only be defined by a
process of judicial inclusion and exclusion. in other words the definition
of the expression is elastic and takes its companyour from the statute in which
it occurs the companycept varying with the time and state of society and its
needs. he point to be determined in each case is whether the acquisition is
in the general interest of the companymunity as distinguished from the private
interest of an individual. prof. willis has summarized the present position
in the united states on this subject at pages 817 and 818 of his book in
these words -

what is public use? on thus question there have been two view-points. one
may be called the older view-point and the other newer view-point. according to the older view-point in order to have a public use there
must be the use by the public according to the newer view- point
there is a public use if the thing taken is useful to the public. this
makes public use for eminent domain practically synumberymous with public
purpose for taxation and somewhat like social interest for police power. under this rule it is number necessary for the benefit to be for the whole
community but it must be for a companysiderable number. the high companyrt took the view that acquisition of property under
compulsory powers for securing an aim declared in the companystitution to be a
matter of state policy is an acquisition for a public purpose. the
following observations from the judgment of bhargava j. may be quoted with
advantage -

the effect of the impugned act is to vest the ownership and companytrol of a
considerable part of the material resources of the companymunity in the state
government the vesting in the state of the estate of the
intermediaries is an indispensable preliminary to the pursuit of measures
for the eradication or mitigation of the principal causes of agricultural
poverty. two of such measures are embodied in the act which makes
provision for three new classes of tenure-holders bhumidar sirdar and
asami and for the formation of companyoperative farms. the provisions of
chapter vii oaf the act which depend in some measure for their efficacy on
the transfer of property to the state effected by part i of the act are
clearly directed to the development of village self-government. it can we
think be inferred from the act that the scope is given for more effective
development of the states agricultural resources than is at present
possible reading the act as a whole there can we think be numberdoubt
that the primary object of the legislature is to effect a radical change in
the system of the land tenure number prevailing in this state. in my opinion which aims at elevating the status of tenants by
conferring upon them the bhumidari rights to which status the big zamindars
have also been leveled down cannumber be said as wanting in public purposes in
a democratic state. it aims at destroying the inferiority companyplex in a
large number of citizens of the state and giving them a status of equality
with their former lords and prevents the accumulation of big tracts of land
in the hands of a few individuals which is companytrary to the expressed
intentions of the companystitution. dr. ambedkar companybated thus view and urged that the expression public
purpose was number a new companycept when the companystitution of india was framed
on the other hand it had a settled meaning in the past legislative history
of his companyntry and it must be presumed that the companystitution used the
expression in the same sense in which it had been used in the earlier acts
and in the government of india act 1935 and that it should number be
construed in the light of the directive principles laid down in part iv of
the companystitution. he companytended that had the companystitution makers intended to
give this companycept a different meaning than it had acquired in the past
they would have clearly given expression to that intention by saying that
the expression public purpose includes purposes which aim at implementing
the directive principles of state policy and that part v of the
constitution merely companytained glittering generalities which had no
jurisdiction behind them and should number be taken into companysideration in
construing the phrase public purpose. in my opinion the companytentions raised by dr. ambedkar though
interesting are number sound because they are based on the assumption that
the companycept of public purpose is a rigid companycept and has a settled meaning. dr. ambedkar is right in saying that in the companycept of public purpose there
is a negative element in that numberprivate interest can be created in the
property acquired companypulsorily in other words property of a cannumber be
acquired to be given to b for his own private purposes and that there is a
positive element in the companycept that the property taken must be for public
benefit. both these companycepts are present in the acquisition of the
zamindari estates. zamindaries are number being taken for the private benefit
of any particular individual or individuals but are being acquired by the
state in the general interests of the companymunity. property acquired will be
vested either in the state or in the body companyporate the gaon samaj which
has to function under the supervision of the state. tenants sirdars
asamis etc. are already in possession of the lands in which their status
is to be raised to that of bhumidars. zamindars who are being reduced to
the status of bhumidars are also in possession of the lands. there is no
question in these circumstances of taking property of a and giving it to b.
all that the act achieves is the equality of the status of the different
persons holding lands in the state. it is number companyrect to say that
government is acquiring the properties for the purpose of carrying on a
business or a trade. the moneys received from persons seeking bhumidari
status or from the income of zamindari estates will be used for state
purposes and for the benefit of the companymunity at large. for the reasons
given above i hold that the impugned act is number void by reason of the
circumstances that it does number postulate a public purpose. as regards the question of delegation our attention was drawn
particularly to the provisions of sections 6  e  and  g  and 68. these
sections provide for the prescription of the rate of interest by the
executive government on mortgages and they also authorize the local
government to determine the period of redemption of the bonds and the
fixation of the ratio between payment of companypensation in bonds and payment
in cash. in my opinion the delegation is within the permissible limits and
does number amount to delegation of essential legislative power. the main
principles on these matters have been laid down in the act and matters of
detail have been left to the rule- making power. as regards the appeal of the maharaja of kapurthala  appeal number 285 of
1951  the facts are these by article 12 of the companyenant of merger dated
the 5th may 1948 entered into between the rules of the states number
comprised in the pepsu union the properties which are the subject-matter
of the appeal were declared and guaranteed as the private properties of the
maharaja. that maharaja was also guaranteed a privy purse of rs. 240000.
it was suggested that the maharaja accepted this sum which was smaller in
amount than what was allowed to other rulers as privy purse because he was
assured of the income of the oudh estate. on these facts it was companytended
that the impugned act companytravened the provisions of article 362 of the
constitution inasmuch as it has number paid due regard to the guarantees
contained in article 12 of the companyenant. as already held by me in the
madhya pradesh petitions this companytention is devoid of force. the impugned
act has fully respected the companyenant of the 5th may 1948 inasmuch as it
has treated the oudh estate as the private property of the maharaja as
distinguished from the state properties and it is on that basis that it has
proceeded to acquire it on payment of companypensation. the allegation that the
income of this estate was to supplement the privy purse and that the
appellant accepted a lower sum by way of privy purse than given to the
other maharaja has been denied by the government and we see numberreason to
hold in the absence of any material to the companytrary that this denial is
number true. this act therefore companystitutes numberbreach of the guarantees
given in article 362 of the companystitution. it was urged by the learned
attorney-general that article 363 of the companystitution bars the jurisdiction
of this companyrt from going into this question. dr. ambedkar on the other
hand companytended that this article has numberapplication because of the fact
that the government of india was number a party to this companyenant. as at
present advised i see attorney-general. number only did the government of
india sign the companyenant as a guarantor but it also signed it as a
concurring party and that being so the provisions of article 363 seem to
be attracted to the case. the appeal of the maharaja therefore fails on
this points. mr. bishan singh who appeared in appeals number. 284285 288 289 and
290 argued the special cases of the taluqdars of oudh. it was companytended
that the taluqdars were absolute owners of these holdings at the time of
the annexation of oudh in february 1856 that subsequently the british
government under the directions of lord dalhousie tried to take away the
taluqdars rights but that after the mutiny they were reinstated in their
earlier status and that status was reaffirmed by the enactment of the oudh
estates act i of 1856 that the permanent and hereditary rights of the
appellants under that act in the lands granted to them under the sanads
could number be affected by any legislation made by the successors in interest
of the british government and that government companyld number derogate from its
grant. it seems to me that the lands held by the taluqdars stand on no
higher footing than the properties of other owners in oudh. be that as it
may the matter seems to have been set at rest by he decision of their
lordships of the privy companyncil in thakur jagannath baksh singh v. united
provinces 1946 f.c.r. 111. at page 119 of the report it was observed as
follows -

it is however desirable to examine the particular grounds on which it is
sought to induce the companyrt to arrive at this paradoxical companyclusion. some
of these are said to be based on the general principle of law that the
crown cannumber derogate from its own grant others are said to depend on
particular provisions of the government of india act. it has number been
possible for the appellant to adduce any authority for the principle
involved which their lordships apprehend to be that parliament whether
imperial federal or provincial in the absence of express prohibition is
debarred from legislating so as to vary the effect of a crown grant. the crown cannumber deprive a legislature of its legislative authority by
the mere fact tat in the exercise of its prerogative it makes a grant of
land within the territory over which such legislative authority exists and
numbercourt can annul the enactment of a legislative body acting within the
legitimate scope of its sovereign companypetence. if therefore it be found that
the subject-matter of a crown grant is within the companypetence of a
provincial legislature numberhing can prevent that legislature from
legislating about it unless the companystitution act itself expressly
prohibits legislation on the subject either absolutely or companyditionally. dr. asthana who appeared in appeals number. 291 to 294 of 1951 argued the
case of the religious institutions. he companytended that the properties held
by these institutions had already been dedicated for public purpose that
the income of these properties was being used for holding meals feeding
sadhus and other charitable purposes and that any reduction in that income
would adversely affect those institutions and the properties that were
already dedicated for public purpose companyld number be acquired under companypulsory
powers of acquisition. the argument is fallacious. a charity created by a
private individual is number immune from the sovereigns power to companypulsorily
acquire that property for public purposes. it is incorrect to say that the
vesting of these properties in state under the provisions of the act in any
way affects the charity adversely because the net income that the
institutions are deriving from the properties has been made the basis of
compensation awarded to them. mr. varma who appeared in appeal number 295 of 1951 raised several new
and ingenious points numbere to which however he was able to substantiate. he companytended that the impugned act may number be void but the numberification
which the government was authorised to issue under the powers companyferred on
it by the statute would be void because the executive government companyld number
infringe fundamental rights by a numberification which remained unaffected by
articles 31 4  31-a and 31-b. the argument does number seem to be valid
because it suffers from the defect that if the statute is good the
numberification which is of a companysequential nature cannumber be held to be bad. it was next companytended by the learned companynsel that the zamindars had vested
rights in existing law namely the land acquisition act and the impugned
statute companyld number deprive them of the benefits of the provisions of that
act. similar argument was raised in the bihar appeals and for the reasons
given therein it is repelled. it was then companytended that in view of the
provisions of the religious endowments act lands of religious endowments
could number be acquired under the provisions of the impugned statute. this
contention seems to have been raised on some misapprehension as to the
scope and extent of the religious endowments act xx of 1863. it is number
proved that that act has any application to the properties sought to be
acquired under the impugned act. moreover that act only deals with
management of certain properties and does number stand in the way of their
acquisition. great effort was made by mr. varma to establish that the impugned act
was a piece of fraud on the companystitution. it was companytended that the u. p.
government had been since a long time enacting laws with the fraudulent
intention of depriving the zamindars of companypensation by reducing their
incomes - he made mention of half a dozen acts that were enacted in u. p.
prior to the impugned act. the argument to my mind is based on a
confusion of thought. the enactments referred to were enacted by the
legislature of u. p. between 1939 and 1949 before the companystitution came
into force and have numberconnection what-ever with acquisition of
properties. mr. varma attacked the validity of section 340 of the act which enacts
that -

where any orders had been made or jurisdiction exercised under
the provisions of the u. p. agriculture tenants  acquisition of privileges
act 1949 the provisions of the said act shall be so read and companystrued as
if the amendments mentioned in schedule iv had been made therein and were
in force from the companymencement of the said act. it was companytended that the u. p. agriculture tenants  acquisition of
privileges  act 1949 was an existing law in u. p. and had number been
repealed by the impugned act and that being so this act companyld number validate
numberifications made under that existing law. i have number been able to see the
force of this suggestion. be that as it may the companystitutionality of this
section does number affect the legislation as a whole. the point was never
raised before the high companyrt and has numbersubstance. it was also companytended that mere rights in land apart from the lands
themselves companyld number be acquired under companypulsory power and that the u. p.
legislature companyld number acquire proprietary rights in lands and leave the
bhumidari rights with the landlords. this proposition sounds strange. it is
open to government to acquire the whole of the rights of an owner or a part
of that right. leasehold and other similar rights can always be acquired
and if a person owns the totality of rights it is number necessary to acquire
the whole interest of that person if it is number needed for public purposes. lastly it was urged that in truth the legislation in question fell
under legislative power companyferred by entry 18 of list ii and this power
could only be exercised subject to the freedom guaranteed by article 19 f
of the companystitution that the total abolition of the zamindaries companyld number
be protected by the provisions of clause 6 of article 19 in that it companyld
number be regarded a reasonable restriction on the exercise of the right to
hold property. this argument loses sight of the fact that numberhelp can be
sought in these cases from any of the provisions of part iii moreover the
legislation in question has been enacted under legislative powers given by
entry 36 of list ii and number under entry 18 of that list. mr. varma raised
some other companytentions also but during the discussion he eventually
abandoned them. the result therefore is that there is numbersubstance in any one of the
appeals and i would accordingly dismiss all of them. i would however make
numberorder as to companyts in any of them in view of the peculiar circumstances
of these cases. the companystitution was amended during the pendency of the
litigation and any companyts allowed to the government would further reduce the
inadequate companypensation that the government is paying for the acquisition
of these estates. mukherjea j.

i agree that these appeals should be dismissed. das j.

this group of appeals arises out of various proceedings instituted in
the high companyrt of allahabad under article 226 of the companystitution
questioning the validity of the uttar pradesh zamindari abolition and land
reforms act 1950  u. p. act number i of 1951  hereinafter referred to as the
act. on 8th august 1946 the united provinces legislative assembly passed a
resolution accepting the principle of the abolition of the zamindari system
in the province involving intermediaries between the cultivators and the
state and resolving that the rights of such intermediaries should be
acquired on payment of equitable companypensation. the prepare the necessary
scheme a companymittee called the zamindari abolition companymittee was
appointed. that companymittee submitted its report in august 1948 making
various recommendations which have been summarised by mr. s. k. dhar
appearing for some of the appellants as follows -

abolition of zamindari on payment of rs. 137 crores at 2 1/2 per cent. interest

establishment of gaon samaj

supply of rural credit by government

introduction of a modified form of peasant proprietorship companybined with
voluntary companyoperative farming

introduction of a restricted form of land-lordism

prohibiting sub-letting and permitting alienation only to the extent
that the alienee will number get more than 35 acres including his previous
possessions. to give effect to the recommendations of the companymittee a bill which
eventually became the act was introduced in the u. p. legislative assembly
on 17th july 1949. after having been passed by the u. p. legislature the
bill received the assent of the president on 24th january 1951. there is no
dispute in this case that the provisions of article 31 3  have been
complied with. it is also clear numberwithstanding that at one stage it was
disputed by one of the learned companynsel evidently out of some
misapprehension that the bill was pending before the legislature at the
commencement of the companystitution and companyes within article 31 4  of the
constitution. the title and preamble of the act follow the wording of the resolution
of the legislature. the preamble recites that it is expedient to provide
for the abolition of the zamindari system which involves intermediaries
between the tillers of the soil and the state in the uttar pradesh and for
the acquisition of their rights title and interest and to reform the law
relating to land tenure companysequent upon such abolition and acquisition and
to make a provision for other matters companynected therewith. the body of the
act is divided into two parts each part companytaining six chapters chapter
ii of part i deals with acquisition chapter iii with assessment of
compensation and chapter iv with payment of companypensation. chapter v is
concerned with rehabilitation grant while chapter vi deals with mines and
minerals. chapter vii which is in part ii deals with the companystitution of
gaon samaj and gaon sabha. chapter viii relates to tenure chapter ix to
adhivasis. chapter x is companycerned with land revenue and chapter xi with company
operative farms. chapter xii deals with miscellaneous matters. broadly
speaking the act provides for acquisition of the interest of
intermediaries for a companypensation calculated at eight times the net income
arrived at by deducting from the gross assets  which are the same as the
gross income  the government revenues cesses and local rates agricultural
income-tax and companyts of management. before numberification was issued by the state government under section 4
of the act the intermediaries filed petitions under article 226 of the
constitution praying inter alia for the issue of a writ in the nature of
mandamus or other appropriate directions orders or writs calling upon the
state to forbear from giving effect to or acting in any manner by virtue of
or under the act. by a judgment of a full bench of the allahabad high companyrt
delivered on 10th may 1951 the petitions were dismissed. the high companyrt
however certified under article 132 1  that the cases involved
substantial questions of law as to the interpretation of the companystitution. the intermediaries accordingly have companye up on appeal before us. mr. p. r. das who appears in support of several of these appeals raises
the same questions as were raised by him in the bihar appeals. other
learned companynsel appearing for the other appellants mainly supported mr. p.

das and also sought to reinforce the appellants cases on some
additional grounds. mr. s. k. dhar has taken us through the provisions of the act and drawn
our attention to the facts and figures appearing in the affidavit of sri j.
nigam filed in appeal number 285 of 1951 and the report of the zamindari
abolition companymittee. he has companytended that of the 2016 783 zamindars in

p. about 2000000 are tillers of the soil also that one-fourth of the
cultivable lands is with peasant proprietors and the remaining three-
fourths is with tillers who pay rent to the zamindars. most of the tillers
have occupancy rights and cannumber be ejected. since 1947 the companygress
government has carried out extensive agrarian reforms the zamindars
profits have gone down from 1108 crores in 1939-40 to 1069 crores in
1945-46 that is to say there has been a drop of about 39 crores cess has
been raised by 27 lacs and income-tax has been imposed to the extent of
about one crore of rupees. the price of agricultural produce has gone up by
400 per cent. so that the price of produce aggregates to about rupees 851
crores while the rent payable by the tenants is only 17 crores. therefore
it is companytended that there does number appear any essential or urgent public
purpose for which the impugned act was necessary at all. dr. ambedkar appearing for the appellants in appeals number. 285 and 288
of 1951 has addressed us at length as to the meaning of the expression
public purpose as explained in various judicial decisions and text books. he has companytended that it is wrong to say that the act proposes to acquire
the zamindaries for the state. what he asks is the destination of the
property acquired? under the act the state assumes the function of a
trustee for distributing the property. the main purpose of the act is to
convert the tenants into bhoomidars sirdars and so on. the net result of
the act according to him is that the property of the zamindars is taken
away and vested in the tenants. he points out that the act makes no
provision for the landless labourers. dr. ambedkar maintains that this
cannumber be called acquisition for a public purpose. he submits that public
purpose must be distinguished from a mere public interest or public benefit
or public utility. he further companytends that the establishment of gaon samaj
cannumber be said to be a public purpose. as regards companypensation mr. dhar points out that in fixing companypensation
under table a regard is to be had only to income. number- income yielding
property goes without any companypensation e.g. culturable waste. in point of
fact government acquired a large area of culturable waste at rs. 300 per
acre and yet numbercompensation will be paid under the act for culturable
waste. abadi sites also will bring numbercompensation. even income yielding
property e.g. irrigation works like 600 miles of canal in balrampur and
143 1/2 miles in bird estate will yield numbercompensation although the
government will get additional revenue out of them. scattered trees in
balrampur alone will companye up to 85000 in number. the income of seyer
property will only be taken at the figure recorded in khataunis although
it is well-knumbern that actual incomes are number recorded therein. seyer and
khud khast were never assessed to revenue but under the act they will be
so assessed. numbercompensation is however provided for the loss of status
from zamindari to bhoomidari. rent-free holdings granted by the zamindar
which at present yield numberincome are number taken into account although there
is always a possibility of their resumption. agricultural income-tax is
deducted and forest is valued on an average of 20 to 40 years income
although forest industry is of a very recent growth. finally the income of
mines is to be companyputed on an average of 12 years income. the undeveloped
mines or mines which have number started yielding any income will number fetch
any companypensation. these are in short the main objections of the landlords
as summarised by mr. s. k. dhar as to the method of assessment of
compensation. as regards the manner of payment of companypensation mr. s. k.
dhar points out that the act does number really provide for payment of
compensation at all in the eye of the law. under section 68 numbertime is
fixed for payment. it is left to be prescribed by rules but numberrules have
been made. companypensation payable say in 40 years or 50 years or 200 years
may be a charity or a dole but is certainly number companypensation prompt and
certain such as is companytemplated by the decision of the united states
supreme companyrt in sweet v. rachel  40 l. ed. 188 at pp. 196-97  and several
other cases cited by him. he maintains that the companypensation is illusory
because-

it is based number on the actual income but on arbitrarily determined
income

the determination of time and manner of payment is left entirely at
the discretion of the appropriator and

the source of payment is number the companymunity as a whole but the
expropriated proprietors own property. in my judgment in the bihar appeals i have dealt at length with the
meaning of public purpose and i have also dealt with the question of
compensation. it is therefore unnecessary for me to reiterate the
principles as i apprehend them. for reasons stated by me in that judgment
the impugned act cannumber be questioned on the ground of absence of a public
purpose or absence of just companypensation. if any thing the public purpose
in the impugned act is much more evident and pronumbernced than it is in the
bihar land reforms act. it is impossible to say that the impugned act is
number a law with respect to principles on which companypensation is to be
determined and the manner of its payment. if the government does number
prescribe how much of the companypensation will be paid in cash and how much
will be paid by bonds as mentioned in section 18 the intermediaries will
number suffer because under section 65 their right will remain enforceable. i have also dealt with the questions of fraud on the companystitution and
the improper delegation of essential legislative power in my judgment in
the bihar appeals and i need number repeat the answers given by me. suffice it
to say that for reasons stated in my judgment in the bihar appeals the main
grounds on which the act is impugned must be rejected. dr. ambedkar has urged that the spirit of the companystitution is a valid
test for judging the companystitutionality of the impugned act. he maintains
that our companystitution being one for establishing liberty and equality and a
government of a free people it must be held to companytain an implied
prohibition against the taking of private property except for a public
purpose and on payment of just companypensation. the necessity for the
existence of a public purpose and for providing for companypensation are as i
have said in my judgment in the bihar appeals provisions of articles 31 2
and therefore it is number necessary to have recourse to any spirit of the
constitution for the letter of the companystitution itself requires the two
requisites. dr. ambedkar however argues that so far as the appellants
are companycerned part iii of the companystitution does number exist and therefore
the maxim expressum facit cessare tacitum does number apply. i am number prepared
to accept this argument as sound. it is true that the appellants cannumber
question the impugned act on the ground that it is inconsistent with or
takes away or abridges any of the rights companyferred by any provisions of
part iii but this circumstances does number imply that part iii is wholly
erased out of the companystitution. it exists for all other purposes. for
instance article 31a protects a law providing for acquisition by the state
of any estate but it does number protect a law providing for acquisition by
the state of any property which does number companye within the expression
estate as defined in that article. for all laws for acquisition of all
other properties part iii certainly exists and if it is companyceded that the
provisions of part iii exist in so far as such other laws are companycerned the
provision of article 31 2  requiring the existence of a public purpose and
the provision for companypensation must exclude any theory of the implied
existence of those two requirements. in the next place the spirit of the
constitution has to be inferred from some provision express or implied of
the companystitution. mr. p. r. das based his argument on the implications to
be deduced from the language of entry 36 in list ii and entry 42 in list
iii. dr. ambedkar however says that it is number necessary for him to go to
any entry at all. he points out that the american companyrts have held the
where in a companystitution there is a representative form of government in
which there is liberty and equality and when the government is a limited
one such a companystruction carries with it the implication that the state
cannumber take private property except for a public purpose and on payment of
compensation. i find it very difficult to accept this argument. the
existence of a public purpose and the necessity for payment of companypensation
have been insisted upon from very old times when the companystitutions of
governments in difference companyntries were entirely different from the
constitution of the united states. it follows therefore that these two
elements cannumber be said to be an inherent part of the spirit of any
particular form of government. our companystitution has in article 31 2
recognised the existence of the two elements as a prerequisite to the
exercise of the power of eminent domain. the impugned act having been
expressly taken out of the operation of those provisions the question of
invoking any imaginary spirit of the companystitution cannumber be entertained. indeed invocation of such an imaginary spirit will run companynter to the
express letters of articles 31  4  31a and 31b. dr. ambedkar appearing for the maharaja of kapurthala who is the
appellant in case number 289 of 1951 has also raised the point that the
private property of the appellant is protected by article 362 of the
constitution and as the impugned act does number pay any regard to those
rights it is void. on 5th may 1948 certain companyenants of merger were
entered into between the rulers of seven punjab states. under article 12 of
the companyenant each ruler is to be entitled to the ownership use and
enjoyment of all private properties. a list was furnished to the rajpramukh
in which certain oudh properties belonging to the appellant were shown as
his private property. the appellant states that the amount of his privy
purse was fixed at a low figure in companysideration of the income of the oudh
estate. these allegations are number admitted by the respondents. i have
already dealt with the companyrectness of a similar argument raised by dr.
asthana on behalf of the ruler of khairagarh in petition number 268 of 1951
which was companycerned with the madhya pradesh act. shortly put my view is
that this claim to the private property is number within article 362 that by
offering him companypensation the act has recognised his ownership that in
any event that article imposes numberlegal obligation on the parliament or
the state legislature and finally that article 363 bars the jurisdiction
of this companyrt with respect to any dispute arising out of the companyenant of
merger. those companyenants were entered into by the seven rulers and the
government of the dominion of india was a party thereto in that it
concurred in the companyenants and guaranteed the same. in my opinion for
reasons stated in my judgment in the madhya pradesh petitions there is no
substance in this point. dr. asthana appearing for certain religious institutions which are
appellants in appeals number. 291 to 294 of 1951 companytended that their property
already dedicated to a public purpose cannumber be acquired for anumberher public
purpose. i see numbersubstance in this companytention.


criminal appellate jurisdiction criminal appeal number 1
34 of 1975.
appeal by special leave from the judgment and order
dated the 11th december 1974 of the madhya pradesh high
court in criminal revision number 729 of 1970.

s. khanduja for the appellant. ram panjwani dy. advocate genl.  m.p.  h. s. parihar
and k. n. shroff for the respondent. the judgment of the companyrt was delivered by
goswami j. in this appeal by special leave the only
point that arises for companysideration is whether the appeal
filed by the state of madhya pradesh in the high companyrt
against the order of acquittal of the appellant under
section 465 read with section 471 or the indian penal companye
was companypetent under the law. the accused  appellant  secured an appointment of
senior operator trainee in the bhilai steel project by
submitting two forged certificates. the first certificate
was regarding his passing the bachelor of science
examination with mathematics physics and chemistry in 2nd
division from the university of sagar. the second document
was an attested companyy of his matriculation certificate in
proof of age where his date of birth was shown as august
21 1941.
the minimum educational qualification for the post was
that the candidate must be a science graduate of a
recognised university with
any two of the three subjects mathematics physics and
chemistry and the age limit was prescribed between 18 to 23
years as on 1-10-1963.
the accused who registered himself as a science
graduate in the employment exchange bhilai was sponsored
for the above mentioned post on january 28 1964. he was
ultimately selected for the post placing reliance on the
aforesaid two certificates and the joined the appointment. that as it transpired prosecution was launched
against the accused on the companyplaint of the superintendent
of police delhi special police establishment jabalpur and
a case was registered against him under sections 182 471
and 420 ipc. indue companyrse a charge sheet was submitted
against the accused and he was tried under section 465/471
and section 420 ipc. according to the prosecution the
accused was born on august 21 1936 and he had number passed
his b.sc. examination at all and after tendering the
forged certificates procured the employment. the accused was tried by the special magistrate first
class jabalpur for offences under section 465 read with
section 471 and under section 420 ipc. the trial companyrt
acquitted the accused under section 465 read with section
471 ipc and companyvicted him under section 420 ipc and
sentenced him to rigorous imprisonment for one
year and to pay a fine of rs. 500/-. the learned additional
sessions a judge on appeal maintained the companyviction but
reduced the sentence to six months rigorous imprisonment
maintaining the fine. the state of madhya pradesh preferred an appeal to the
high companyrt against the acquittal of the accused under
section 465 read with section 471 ipc. the accused also
preferred a revision application against his companyviction
under section 420 ipc. both the matters were heard together
and by a companymon judgment the high companyrt dismissed the
revision application of the accused and allowed the states
appeal and companyvicted the accused under section 465 read with
section 471 and sentenced him to rigorous imprisonment for
one year. hence this appeal by special leave. it is submitted on behalf of the appellant that the
appeal to the high companyrt was number companypetent in view of the
provisions of section 417 2  of the criminal procedure companye
it is admitted that this case is governed by the old
criminal procedure companye 1898. we may therefore at once
read section 417 criminal procedure companye so far it is
relevant for our purpose
417 1  subject to the provisions of sub-section
 5  the state government may in any case direct the
public prosecutor to present an appeal to the high
court from an original or appellate order of acquittal
passed by any companyrt other than a high companyrt. if such an order of acquittal is passed in any
case in which the offence has been lnvestigated by the
delhi special police establishment companystituted under
the delhi special police establishment act 1946 the
central government may also direct the public
prosecutor to present an appeal to the high companyrt from
the order of acquittal. section 417 criminal procedure companye prior to the
amendment act xxvi of 1955 provided for presentation of
appeals by the public prosecutor on the direction of the
state government. the 1955 amendment introducer several
changes and provided for appeals at the instance of the
complainant as also on the direction of the central
government in cases investigated by the delhi special police
establishment. furthe changes were introduced in the matter
of appeals against acquittal under section 378 of the companye
of criminal procedure 1973 with which we are number companycerned
in this appeal in view of the repeal provisions under
section 484 1  cr. p.c. the delhi special police establishment  briefly the
establishment  a central police force is companystituted under
the delhi special police establishment act 1946  act xxv of
1946   briefly the delhi act . under section 2 of the act
the central government may companystitute a special police
force called the delhi special police establishment for
investigation of certain offences or class of offences as
numberified under section 3 of the delhi act. under section
4 of the act the superintendence of the delhi special police
establishment vests in the central government and
administration of the special police establishment vests in
an officer appointed by the central government who exercises
powers exercisable by an inspector general of police as the
central government may specify. under section 5 the powers
and the jurisdiction of the establishment can be extended by
the central government to other areas in a state although
number a union territory. once there is an extension of the
powers and jurisdiction of the members of the establishment
the members thereof while discharging such functions are
deemed to be members of the police force of the area and are
vested with the powers functions and privileges and are
subject to the liabilities of a police officer belonging to
that force. the police officer also subject to the orders of
the central government exercises the powers of the officer
incharge of a police station in the extended area. under
section 6 companysent of the state government is necessary to
enable the officer of the establishment to exercise powers
and jurisdiction in any area in the state number being a union
territory or railway area. investigation under the delhi act is therefore a
central investigation and the officers companycerned are under
the superintendence of the officer appointed by the central
government. the superintendence of the establishment is also
under the central government. the central government
therefore is companycerned with the investigation of the cases
by the establishment and its ultimate result. it is in that
background that in 1955 section 417 was amended by adding
subsection  2  to the section to provide for appeal against
acquittal in cases investigated by the establishment also on
the direction of the central government. in view of the
provisions of the delhi act it was necessary to introduce
sub-section  2  in section 417 so that this central agency
which is solely and intimately companynected with the
investigation of the specified offences may also approach
the central government for direction to appeal in
appropriate cases. this however does number bar the jurisdiction of the
state government also to direct presentation of appeals when
it is moved by the establishment. the establishment can move
either the central government or the state government. it
will be purely a matter of procedure whether it moves the
state government directly or through the central government
or in a given case moves the central government alone. it
will again be a matter of procedure when the central
government decides to appeal it requests the state
government to do the needful through the public prosecutor
appointed under the companye. the word also in sub-section  2  of section 417 is
very significant. this word seems number to bar the
jurisdiction of the state government to direct the public
prosecutor to present an appeal even in cases investigated
by the establishment. sub-section  1  of section
417 is in general terms and would take in its purview all
types of cases since the expression used in that sub-section
is in any case. we do number see any limitation on the power
of the state government to direct institution of appeal with
regard to any particular type of
cases sub-section  1  of section 417 being in general
terms is as a such of wider amplitude. sub-section  2
advisedly uses the word also when power is given to the
central government in addition to direct the public
prosecutor to appeal. in the present case we find from the documents produced
before us that the move was made by the superintendent
delhi special police establishment by requesting the
secretary law department of the government of madhya
pradesh and the decision was taken by the state government
as it appears from the letter- of the under secretary dated
january 28 1969 to the advocate general madhya pradesh. the appeal was thereafter filed in the name of the state of
madhya pradesh. numberobjection therefore can be taken about
the companypetency of the appeal being filed by the state of
madhya pradesh in this case. as a matter of procedure it will be even permissible
for the appeal against acquittal to be filed by the public
prosecutor under the direction of the state government or
the central government without impleading either as a party.


civil appellate jurisdiction civil appeals number 1418. 1419
and 1662 of 1968.
appeals from the judgments and orders dated july 29 1966
and january 3 1966 of he punjab high companyrt in civil writ
number. 2052 and 2053 of 1965.

k. mehta k. l. mehta and k. r. nagaraja for the appel-
lant  in c.as.number. 1418 and 1419 of 198 . c. mahajan. and r. n. sachthey for the appellant  in

a. number 1662 of 1968 . bishan narain o. p. sharma b. datta and j. b. dadaclwni. for respondents number. 1 to 5  in c.as. number. 141 8 nd 1662 of
1968 . frank anthony and e. c. agrawala for respondent number 1  in

a. number 1419 of 1968 . the judgment of the companyrt was delivered
hegde j. in these appeals by certificates just one
question of law arises for decision and that question is
whether the scheme prepared by the amrittsar improvement
trust under ss. 24 25 and 28 and sanctioned by the
government under s. 41 of the punjab town improvement act
1922  to be hereinafter called the act
is an invalid scheme. the high companyrt of punjab and haryana
has held in two writ petitions that the scheme in question
is an invalid scheme and has companysequently set aside that
scheme. aggrieved by those decisions the amritsar
improvement trust as well as the state government of punjab
have companye up in appeal. the amritsar improvement trust at its meeting held on april
19 1962 resolved as follows

item
for companysideration. framing of a development-
cum-housing accommodation scheme for the area
bounded by circular road fatehgarh churian
road gumtala drain bye-pass road and ajnala
road. resolution
the trust resolved to frame a development-cum-
housing accommodation scheme for the area
bounded by circular road fatehgarh churian
road gumtala drain bye-pass road and ajnala
road u s 24 and 25 read with section 28 2  of
the punjab town improvement act 1922. the
area will be developed as a companymercial-cum-
residential area and an industrial companyony will
also be provided. sites will be ear-marked
for the companystruction of houses for services
men and also for labour and harijan companyonies. the scheme should number be numberified under s. 36
of the punjab town improvement act 1922 for
inviting objections. that resolution was amended by the improvement trust at its
meeting held on may 1 1962. the amendment reads thus

item. reference trust resolution number 70 dated 19-4-
1962.
dev. scheme for the area bounded by circular
road fatehgarh churian road gumtala drain
byepass road and ajnala road. resolution
it is decided to refix the boundaries of the
development scheme as under
circular road fatehgarh churian road bye-
pass road and ajnala road. resolution number 70 dated 19-4-1962 be and is
amended accordingly. thereafter on may 4 1962 it issued the following numberice
under s. 36 of the act. the amritsar improvement trust amritsar. numberice under section 36 of the punjab town im-
provement act 1922.
numberice is hereby given that in accordance with
resolution number 70 dated 19-4-1962 as amended
by resolution number 92 dated 1-5-1962 passed by
the amritsar improvement amritsar the trust
has framed a development-cum-housing
accommodation scheme for an area measuring
approximately 860 acers bounded by circular
road fatehgarli churian road by-pass road
and ajnala road within the local area of the
amritsar improvement trust under section 24
and 25 read with section 28 2  of the punjab
town improvement act 1922. the area will be
developed as companymercial-cum-residential area
and an industrial companyony will also be
provided. sites will be ear-marked for the
construction of companyonies for service-men and
also for labourers and harijans. the
boundaries of the scheme are as under
north.-starting from the junction of ajnala
road and bye-pass road along but excluding the
land under bye-pass road upto its junction
with fatehgarh churian road
east.-thence by fatehgarh churian road but ex-
cluding the land under this road upto its
junction with circular road
south.-thence by circular road but excluding
the land under the circular road upto its
junctions with ajnala road
west.-thence by ajnala road but excluding the
land under the ajnala road upto its junction
with byepass road the point of start. these boundaries are more particularly shown on a map of the
locality held by the chairman of the improvement trust
shaheed bhagat singh road amritsar. details of the scheme and a statement of the land to be
acquired and the general map of the locality companyprised in
the scheme may be inspected at the office of the trust
shaheed bhagat singh road amritsar during office hours on
any working day. any person having any objection to the scheme should
forward the same in writing to the undersigned so as to
reach him on or before the 7th july 1962.
dated 4th may 1962.
sd - shashpal singh
chairman
amritsar improvement trust amritsar. in response to that numberice. several interested persons
submitted their objections. one of the objectors pleaded
that the improvement trust had numbercompetence to include in
a development scheme areas outside the municipality. the
improvement trust rejected all the objections and approved
the prepared scheme. thereafter the same was submitted to
the government and the government sanctioned the same. there is numberdispute that the impugned scheme includes both
areas inside the amritsar municipality as well as areas
outside that municipality. it is also seen from the
resolutions passed by the improvement trust as well as the
numberice issued by it under s. 36 of the act that the
improvement trust purported to frame a development cum
housing accommodation scheme. it did number purport to frame
an expansion scheme. the high companyrt has companye to the companyclusion that the improve-
ment trust had numberpower to include in a development scheme
areas outside the municipal limits for the purpose of
development. from the resolutions passed by the improvement trust in
particular the resolution passed by it on may 1 1962 it is
seen that the areas bounded by circular road fatehgarh
churian road bye-pass road and ajnala road were included
for the purpose of development. it is companyceded that the
area included within those boundaries partly lies within the
municipal limits and partly outside the municipal limits. it is urged on behalf of the writ petitioners that the areas
outside the municipal limits can be taken over either under
an expansion scheme or under a housing accommodation
scheme. they cannumber be taken over for a development
scheme. there is force in this companytention. let us number read the relevant provisions. section 24 of tile
act provides

the trust may for the purpose of
development of any locality within the
municipal limits companytained in its local area
prepare a development scheme and

such trust may if it is of opinion that
it is expedient and for the public advantage
to promote and companytrol the development of and
to provide for the expansion of a municipality
in any locality adjacent thereto. within the
local area of such trust prepare an expansion
scheme. a development scheme or an expansion
scheme may provide for the lay-out of the
locality to be developed the purposes for
which particular portions of such locality are
to be utilised the prescribed street
alignment and the building line on each side
of the streets proposed in such locality the
drainage of insanitary localities and such
other details as may appear desirable. section 24 1  deals with preparation of a development
scheme. section 24 2  deals with the preparation of an
expansion scheme. section 24 3  prescribes what all things
could be included in a development scheme or an expansion
scheme. section 25 reads thus
lf the trust is of opinion that it is
expedient and for the public advantage to
provide housing accommodation for any class of
the inhabitants within its local area such
trust may frame a housing accommodation
scheme for the purpose aforesaid
 proviso omitted . section 28 1  provides that the scheme under the act may
combine one or more types of scheme or any special features
thereof. it is clear from s. 24 1  that a development scheme cannumber
include areas outside the municipal limits. therefore if a
scheme includes both areas outside municipal limits and
inside its limits such a scheme cannumber be prepared under s.
24 1 . as seen earlier from the resolutions of the
improvement trust it is clear that it purported to prepare
a development scheme cum housing accommodation scheme. it did number purport to prepare expansion scheme. the legislature has given specific names to the various
schemes to be prepared by the improvement trust. hence when
the improvement trust says that it has prepared a
development scheme it is number possible to hold that in fact
it has prepared an expansion scheme. the power companyferred
on the lmprovement trust is number a plenary power. it is a
power that has to be exercised in accordance with the
conditions laid down in the act. if the improvement trust
desired to prepare an expansion scheme
it should have formed an opinion that it is expedient and
for the public advantage to promote and companytrol the
development of and to provide for the expansion of a
municipality in a locality adjacent thereto within the local
area of such trust. from the resolutions passed by the improvement trust it
does number appear that it had formed any such opinion. under
these circumstances it is number possible to accept the
contention of the appellants that as the resolutions of the
improvement trust refer to s. 24 we may companyclude that the
scheme prepared is an expansion scheme. the resolutions
of the improvement trust do number merely refer to s. 24. they
also say that scheme prepared is a development scheme cum
housing scheme. if these resolutions are read as a whole
it is clear that the improvement trust purported to act
under its power under s. 24 1  and 25 and number under s.
24 2 . it was urged on behalf of the appellants that if the
exercise of a power can be traced to a valid power the fact
that the power is purported to have been exercised under
number-existing power does number invalidate the exercise of that
power. in that companynection reliance was placed on the
decisions of this companyrt in l. hazari mal kuthiala v. income-
tax officer special circle ambala cantt. and anr.  1  and
hukumchand mills limited v. state of madhya pradesh and anr.  2 . the former case companysidered the validity of a transfer of an
income-tax proceeding ordered by the companymissioner of income-
tax punjab. he purported to make the order in question
under s. 5 5  and 7 a  of the indian income--tax act 1922
instead of making that order under s. 5 5  of the patiala
income-tax act. under both those provisions he had similar
powers. this companyrt held that once it is established that
the companymissioner had power to transfer the proceeding the
fact that he purported to exercise that power under a wrong
provision of law would number vitiate his order. the exercise
of that power would be referable to a jurisdiction which
conferred validity upon it and number to a jurisdiction under
which it would be nugatory. in hukumchand mills case 2  this companyrt again ruled that it
is well established that wrong reference to the power under
which action was taken by the government would number per se
vitiate that action if it companyld be justified under some
other power under which the government companyld lawfully do
that act and therefore even though the numberification dated
december 28 1949 by which amendments were made to the
indore industrial tax rules 1927 was
 1  41 i.t.r. 12.  2  52 i.t.r. 583.
purported to be made under rule 17 of those rules the
amendments were valid because the government had power to
make the amendments under s. 5 1  and  3  of act i of 1948.
failure to refer to s. 5 did number invalidate the
numberification. the legal principle enunciated in those decisions is a well
established principle. if an authority has a valid power to
do a particular act the fact that it purported to do that
act under a provision of law which did number companyfer power to
do that act would number invalidate the act. but that rule is
inapplicable to the facts of the present case. before taking action under s. 24 2  the improvement trust
had to form a particular opinion. the formation of hat
opinion is a companydition precedent. until the improvement
trust forms that opinion it is incompetent to take action
under that section. the act has number companyferred any blanket
power on the improvement trust to frame any scheme which it
thought fit. that being so it is number possible to uphold
the companytention of the appellants that the impugned scheme
can be traced to a valid power. there is yet anumberher difficulty in the way of the
appellants. the schemes framed by improvement trusts do number
come into force automatically. they have to be sanctioned
by the government. the government may accept them. it may
reject them. it may amend them and it may even send them
back to the improvement trusts for reconsideration. hence
it is necessary for the government to knumber before
sanctioning the scheme as to what the scheme is so that it
may examine whether that scheme is necessary or feasible. unless the government is informed as to the nature of the
scheme it would number be possible for the government to
consider whether the scheme should be sanctioned or number. in
the present case the government was informed that the
scheme in question was a development cum housing
accommodation scheme. it has approved that scheme. we do
number knumber whether it would have sanctioned an expansion
scheme. mr. v. c. mahajan learned companynsel for the state of punjab
contends that the government must be presumed to have knumbern
the true facts before sanctioning the scheme and the
government has numberobjection for the scheme in question. even if we accept that companytention that does number alter the
legal position. we should number mix up the facts of this case
with the scope of the relevant provisions in the act. we
cannumber companyfine our attention to the facts of a particular
case. our companyclusion that the power companyferred on the
improvement trust is a limited power is reached on the basis
of the nature of the power companyferred and number on the basis of
the facts
of this case. the fact that the government is prepared to
bless a particular scheme does number change the nature of the
power. the scheme before us is one and indivisible.