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

MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC A v.

UNION OF INDIA AND ORS. ETC. ETC. B November 13, 1980/July 1, 1985

c A. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976) -Whether constitutionally vai/d •is-a-vis Articles 39(b) and (c) of tht Constitution.

B. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976), 1ection 2(g),-Artificlal definitio11 of family in section 2(/), whether offends against D Article 14 of the Constltut ion.

C. Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXJJ/ of 1976), section 11(6) ralidity of-~Vhether the maximum limit of the amount of compen· sation payable fixed at Rupees two lakhs is illusory and confiscatory and therefore. violative of Article 14 and 31(2) of the Constitution, as amended by the Twenty-

• fiflh Amendment Act, 1971-Ejft'Cl of the Amendment

D. Urban Land (Ceiling and Regulation). Act, 1976 (Act XXX/// of 1976), section 23 validity of-The provision subserves the objectives of Articles 39(b) and (c) and hence protected by Articles 31 Band C, but the governing test of disposal of excess lands being ''social good'', any disposal in any particular case or cases r which does not subserve that purpos~ will be invalid.

E. Urban I.and (Ceiling and Regulatian) Act, 1976 section 27(1), validity of- Whtther offends Articles 14 and 19(1) (/).

P. Interpretation of statutes-Rule of reading down the provision. G Perml8'ibillty as a part of the judicial proce&S.

G. Constitution of India, 1950 Articles 31 and 300.A-Baslc structure of the Constitution, thereby applicability of-Whether right to property is a part of the basic structure of the Constitution-State's power of "eminent domain", and H conditions precedent to exercise of that power, t!Xplained.

H. Constitution of India, 1950-Part IV-Directi•e Principles of State Palley, character and cognisabllity by the Courts.

MSS, BHIM SINGH P. UNION

I. Interpretation of Constitution and tht approach to be adopted, explained. A. J. lnterpretali•n of statulls-External and Internal Aid•,.,. •f

LIC. W11r4.s and Phrase1-Conctpt and meaning of" PMbli1 Purpose.''

The Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXIll or n 1976) it in force in 17 States and all tho Union Territories in the country.· It seet:s to impose a ceiling on vacant lands in urban agglomerations having a population of two lakhs or more and for that purpose classifies such urban agglomerations in various cities and towns in all the States and Union Territories into four categoric• and fixes the ccilina limit for each aucb cateaory. c The primary object and purpose of tho Act, as its long title and tho Preamble show, is to provide for the imposition ofa ceiling on vacant land in •rban agglomerations. for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land for matters connected there with, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and D with a view to bring about an equitable distribution of land in urban agglome- rations to subsl!rve the common good, presumably in furtherance of the Directive Principles of State Policy contained in Article 39(c) and (b) respecti- vely. The enactment has also been put in the Ninth Schedule as Item 132 by the Constitution (Fortieth Amendment) Act, 1976; in other words, the enactment enjoys the benefit of protective umbrella of both the articles, Article 31-B and 31-C as it stood prior to its amendment by the Constitution E (Forty-second Amendment) Act, 1976.

By these writ octltions the petitio:iers, w:10 are holders of vacant land in the urban agglomerations in various States, are seeking to challenge the vires of some of the salient provisions of the Urban Land (CeHin1r and Regula- tion) Act, 1976 (XXXIII of 1976) and since, according to them, some of tho impugned provisions are pivotal and non-severable, having an impact on its entire scheme, the whole Act is liable to be struck down as being in-va1id and unconstitutional. The petitioners have, therefore, prayed for an order quashing notices issued to them by the concerned competent authorities under the Act and a mandamus directing the respondents not to implement the provisions thereof against them.

864 SUPREME COURT REPORTS (19851 SUPPL. s.c.l\. J. The Urban Land (Ceiling and Regulation) Act, 1976 is constitutional· A ly valid save and ex.cept section 27(1) in so far as it imposes a restriction on transfer of any urban of urbanisable land with a building or of a portion of such building, which is within the ceiling area. [871 E-F]

Per Chandrachud, C.J. and P.N. Bhagwati, J.

B I. The Urban Land (Ceiling and Regulation) Act, 1976 is valid. The vice from which a pro·dsion here or a provision there of the impugned Act may be shown to suffer will not justify the conclusion that the Act is not intended to or does not, by its scheme; in fact implement or achieve the purposes of clauses (b) and (c) of Article 39 or the Constitution. [8 ,g C-D]

c 2. The definition of "family" jn section, 2(f) of the Act, which in relation to a person means the individual, the wife or husband, as the case may he. of such individual and their unmarried minor children, will not necessarily lead to concentration of wealth in the hands of a few persons or families. Such is eot the intendment, nor the drive, nor the direct and inevitable consequences of the definition of "family", [87d D-E] D

3Copy pinpoint3. Section 11(6) of the Urban Land (Ceiling and Regulation) Act, 1976 which provides that the amount payable under sub-section (1) or sub-section (5) of section 11 shall, in no cast', exceed two Iakhs of rupees is valid. The amount thus payable, is not illusory and the provision is not confiscatory. Rupees iwo lakhs is not like a farthing even if the excess land may be a fortune. [879 F]

4Copy pinpoint4. Section 23 of the Urf'>an Land (Ceiling and Regulation) Act is valid and does not suffer from any constitutional infirn'ity. Sub-fection (~)of section 23 is the prepondering provision governing the disposal of excess vacant land acquired under the Act. Though it is "subject to the provisions of sub-section F (l), (2), and (3)", the provisions of sub-section (1) are enabling and not com- pulsive and those of sub-sections (2) and {3) are incidental to the provisions of sub-section (1 ). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section (4) of section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relatiug to, or in connection with any ''industry" or the other purposes mentioned in sub~section (1). provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being "social good'', any disposal in any pasticular case or cases which docs not subserve that purpose will be liable, to be struck down as being contrary to the scheme and intendment of the Act. The preamble to the Act ought to resolve interpretational doubts arising out of the defective drafting of section 23. "Common Good", being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and, therefore, lacking, lacking in competence in diverse senses. Private property cannot under the Constitution be acquired or allotted for private purposes though an enabling power like that contained in sub-section (1) of section 23

MSS, BHIM SINGH 1, UNION 865 may be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in clause (b) of the Explanation to A Section 23. [.l78 G-H;.879 A-El

5Copy pinpoint5. Sub-section (J) of section 27 of the Act is invalid insofar as it imposes a restriction on transfer of any urbanisable land with a building or a portion only of such building, which is within the ceiling area. Such property will there-

- fore be transferable without the constraints mentioned in sub-section (1) of Section 27 of the Act. Nothing usefully can be added to the Judgment delivered by Krishna Iyer, J and the reasons given therein are fully agreed to. [819 G-H] B

Per Krishna Iyer, J. (Concurring)

1. The legislation on the Ceiling and Regulation of urban lands is constitutionally valid, though section 27(1) is partially invalid. The legislation is obviously a measure for inhibiting concentration of urban lands in the c hands of a few persons and for equitable dis~ribution of such land to subserve the common good. Article 39(b) and (c) of the Constitution are directly attrac- ted and the fullest exploitation of the material resources of the community undoubtedly requires distribution of urban land geared to the common good. [880 E-F] D 2, Family as defined in section 2(f) of the Act accords with the current life style in urban conditions and is neither artificial nor arbitrary nor violative of Article 14. And the courts, in these days of family planning and self-reliance of the adult cannot condemn as arbitrary, by a process of judicial ratiocination, the legislative provision that a family shall be defined as the parents plus their minor children. [886 B-Cj E 3.1 The payment, fixed under section 11(6) of the Act of a sum of Rs. two lakhs whatever be the total value of the property in the market is not so fictitious and flimsy as to be a farthing. There are no absolutes in law as in life and the compulsions of social realities must unquestionably enter the judicial verdict. [881 G-H] F 3.2 The various amendments to Article 31 culminating in the present provision which provides for the payment of the "amount" disc.lose a determined approach by Parliament in exercise of its constituent power to ensure that full compensation or even fair compensation cannot be claimed as fundamental right by the private owner and that short of paying a "farthing for a fortune'' the question of compensation is out of bounds for the court to investigate. ['81 r-F] G 3.3 Having regard to the human condition of a lara:e percentage of pavement dwellers and slum dwellers in our urban areas and proletarian miscR rabies in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is farewell to poignant facts and difficult to accept. Therefore, section 11(6) is jnvulnerablc and does not contravene Article 31 (2) the payment stipulated is re~sonable, neither a mere mockery or discriminatory. (884 E-Fj

865 \ SUPREME COURT REPORTS (1985) SUPPL, S.C.R.

4. The whole story of the legislation, the long gestation Qf pre-legislative consideration, the brooJing presence of Article 39(b) and (c) and the emphasis in Section 23(4) on common good as the guiding: factor for distribution point to public purpose. national development and social justice as the cornerstone of of the policy of distribution. Any transgression of Article 39(b) and (c) is beyond the scope of Section 23(1) and disposal of land thereunder must sub. serve the common good and not the reverse. This limitation on the wide words of section 23(1) is a matter of semantics and reading down the judicial process. To sustain a Jaw by interpretation is the rule. To be trigger-happy in shootine at sight every suspect law is judicial legicide. Courts can and must interpret words and road their meanings so that public good is promoted and power mlsuse is interdicted. The wide definition of ''industry" or the use of general words like ••any person .. and .. any purpose" cannot free the whole clause from the inarticulate major premise that only a public purpose to subserve the com· c mon good and filing the bill of Article 39;.b) and (c) will be permissible. The_ touchstone is public purpose, community good and like criteria. Jf the power is used for favouring a private industrialist or for nepotistic reasons the oblique act wiU meet with its judicial Waterloo. To presume as probable graft, nepo. tism, patronage, political clout, friendly pressure or corrupt purpase is imper· missible. The Jaw will be food, lhc power will be inlpeccable but if lhe parti· cular act of allotment is ma/a fide or beyound the statutory and constitutional D paramete"rs such exercise will be a casualty in court and will be struck down. The poWer of judicial review to strike at excess or ma/a fel11 is always there· for vigilant exercise. Hence, even the crude drafting of section 23(4) by the unwanted ••subject to••will not whittle down the power, why the obligation. to distribute vacant land, no1 according to personal, political or official Janey but •trictly geared to the eood set down in Article 39(b) and (c). . (887 D·H; 888A; 8890) E S. Se~ion 27(1) of the Act, is.invalid, partially. [880 AJ

6.1 The. question of 1:-asic structure being breached cannot arise when examining the Yires of an ordinary legislation as distinguished from a Constitu· .F tional amendment. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equilisation processes aro put into action. What is a betrayal of the basic feature is not a mere violalion of Article 14 but a shocking, onconscienablo or unscrupulous travesty of the quintessence of equal justice. If a legislation docs go that far it shakes' 1he democratic foundation and must suffer the death penalty. · But to permit the Bharti ghost to haunt the corridors G of the court brandishing fatal writs for evefy every feature of inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a: Trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition or basic poverty by the "basic structure·• missile. IJ . (889 E·H; 890AJ

6 2 Rjght to property is not p.lrt of the basic structure even hiS right to develop is not the basic structure of India forever. The whole adventure ofthe- CQn~titq~~Qll f' t~ re~ove povcrtr and in that pro~c;:ss r~~9v~ ~.p~ntration of

MSS. BRIM SINGH v. UNIO?I 867

property. not for a return. but for almost free, if the justice of the situation commended itself to the legislation to take it that way. A Kes••anda Bharall v. State of Kera/a [1972] Supp. SCR p. I referred to.

6.3 Part IV which seeks to build a Social Justice Society, is basic to our constitutional order. The Directive Principles of State Policy being paramount in character and fundamental in the country's governance, distributive justice, envisaged in Ariiclc 39(b) and (c) has a key role in the developmental process ll or tho Socialist Republic that India has adopted. [888 C; 880 G]

Per Tulzapurkar, J. (dissenting)

1. The urban Land (Ceiling and Regulation) Act, 1976, though purporting to do so, does not. in fact, further the directive principles in· Aiti:le 39(b) and (c). The measure was, undoubtedly, taken in hand with a view to c achieve the unexceptional objectives underlying ArticJe 39lb) and (c) and suppo:tcd by several State Legislatures as per their resolutions passed under · Article 252(1) with a laudable object namely, to clothe the Parliament with legislative competence to enact a law for the imposition of celiog on urban immovable property for the country as a whole. but the enacted provisions misfire a'.nd produce the opposite results and also damage or destroy the D essentia't features or basic structure of .the C.Onstitution. Section 2(f) in relation to prescription of ceiling area permits unwarranted and unjustified concCntration of wealth instead of preventing the same and is in teeth of the o!:-jective under Article 39(c): Similarly section 23 produces results contrary to the objectives under Article 39(b) Therefore, the impugned Act is outside the protective umbrella of Article 31-C. Further, sections 2(f), 23 and 11(6) which puts a maximum limit on the quantum of the amount payable in respect or excess ,E vacant land acquired .from a holder irrespective of the ex.tent of area held by him-these three prnvisions flagrantly violate those aspects of Articles 14 and 31 which constitute the essential and basic features of the Constitution and hence the protective umbrella of Article 31-B is not available to the impugned ·Act inasmuch as the Fortieth Constitution Amendment Act, 1976 to the extent to which it inserts the Act in the Ninth Schedule is beyond the consti- :F tuent power of the Parliament. Section 21 which authorises compulsory acquisition of property for private purposes is in breach of the doctrine of eminent domain and since it flagrantly violates Article 31(1) is ultra vires and unconstitutional. Similarly section 27 being severable is partially. ultra i·Ires and unconstitutional, being beyond the a.t>bit of the Act and also violative of Article 14oftheCon<lilulion. [916 B H,917 A-DJ ( G The legislative competence of the P.irliament bning still there. a. \Yell drafted enactment within the constitutional limitations or the subject y,·ould be tho propor remedy. [918 G-HJ -- Unior. of India v. Valluri Basa1Jah Chowdhry, [1979) 3 SCR 802 referred to.

2.1 The artiB.cial definition of ''family" given in section 2(f) of tie Act, when .;onsidered in rc;lation tQ the prescriptiQns of the ceilinf area ur.~i;r

868 SUPREME COURT REPORTS (198 5) SUPPL. S,C.!l.

section 4(1) is clearly violative of and strikes at the root of tho equality clause A contained in Article 14 of the Constitution. This artificial definition together with the double standarad adopted for fixing the ceiling area runs through and forms the basis of chapter Ill of the Act and the discriminatory result or inequalities produced thereby are bound to have an impact on the scheme of that chapter and, therefore, along with it the whole chapter Ill must fall beina violative of Article 14. [898 C-F] B 2.2 The classification made between minor children and major children belonging to a family is not based on any intelligible differentia having no nexus to the object sought to be achieved by the Act, which is to acquire excess vacant land after leavjng the ceiling area to the family. It has not been shown that so called nuclear families alleged by in vogue have replaced nor. mal families which include major sons or joint Hindu families in urban c areas. [898 B-CJ

Karimbil Kunhikoman v. State of Kera/a [1962] Supp. l SCR 829; A.P. Krishnasami Naidu v. State of Madras [l9E4] 7 S~ R 82 followed.

2.3 Apart from the discriminatory result which the artificial definition D of family in section 2U) produces, the adoption of the artificial definition of "family" and double standard for fixing ceiling area one for a family with minor children and another for a family with major children and completely ignoring the concept of Joint Hindu Fan1ily in relation to prescription of ceiling area clearly lead to results which run counter to the directive principles contained in Article 39 (c) of th• Constitution. [899 E-F] E 3.1 Section 1!(6) of the Act, which puts the maximum limit of Rupees Two Iakhs on the amount payable to a holder of excess vacant land acquired under the Act irrespective of the extent of such excess vacant land held by him is not n1erely violative of Articles 14 and 32{2) of the Constitution, but would be a piece of confiscatory legislation, because vacant land in excess of that portion which at the prescribed rates is worth Rupees Two lakhs atands confiscated to tho State without any payment whatsover. (911 C-D]

3 2 The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakinas and businesses and the like, where avowedly ihe benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where "industry'' has been expressly defined to include business, trade or profession in private sector and where power has been conferred upon the State <Jovernment to a1lot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State's power of eminent don1ain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be rtgardeQ as ~9Ptiscatory in 11~t11r~. [911E, 912 A-CJ

MSS. BHIM SINGH V. UNION 869 However, section II (6) ia clearly a severable provision, and, therefore, ultra vires and unconstitutional. [913A] A Slate of Kera/a v. The Gwalior Rayon Silk Mfg. Co. Ltd. (1974] I SCR 671 distinguished.

4.1 Section 23 of the Act which authorises compulsory acquisition of property for private purposes Oagrantly violates those aspects of Article 31 B -which constitute the essential or ba5ic features of the Constitution and it, therefore, ult1·a virts and unconstitutional. Further, indispensably, it is the most vital, integral and non-severable part of the entire scheme of urban ceiling as without it the scheme will merely remain a scheme for unjust and illegal enrichment of the State, and therefore, the whole of chapter III in which it occurs, must fall with it. (906 A-BJ c 4.2 Article 31 of the Constitution has more than one facet: it undoubtedly confers upon individuals (including non citizens) and corporate bodies a fundamental right to property and incorporates in our Constitution the concept of State's power of eminent domain i.e. power of compulsory acquisition of private property and prescribes two conditions precedent to the exercise of that power, n1mely, (i} such acquisition cannot be except for a D public purpose and (ii) it must be on payment of compensation (now termed "amount") to the claimant having interest in the properly. But these two conditions precedent are sine qua non for the exercise of the State's power of eminent domain and, represent those aspects of the right t..:i property under Article 31 which constitute the essential or basic features of our Constitution and for that matter these would be so of any democratic constitution and. E therefore, any law authorising expropriation of private property in breach of anyone of those conditions would damagP. or destroy the basic scructure of our Constitution. (903 H, 904A, B-EJ

H.H. Kesarananda Bharati v. Union of India & O". [1973] Supp. SCR I referred to. F State of Bihor v. Kamer\wa- Singh, [1952) SCR 839 rolied on.

4.3 It is extremely doubtful whether co:npulsory acquisition of all the excess vacant land in all urban agglomerations throughOut the country for a bald, indefinite and unspecified objective like ''industry'' simpliciter without any attempt at dovetailing it by having a proper scheme for industrial develop· ment will constitute a valid public purpose for the exercise of the power of eminent domain." [905 C-D]

4.4 The adoption of a wide definition of "industry"' so as to include any business, trade or profession in private sector not only makes a mockery of :·public purpose'', but also, in the context of eminent domain is clearly suicidal. What is worse is that under the priorities laid down such private

Sti.l SUPREME COURT REPORTS [!985] SUPPL. S.C.R.

A purposes are to be catered to first and then comes the diitposal or distribution thereof to aubserve common good, which clearly smacks of depriving Peter of his property to give it to Paul and, therefore, clearly amounts to an invalid exercise of State's power of "tmintnt don1ain". [90~ F,G-H,906 A]

4.S Besides, the wide definition of "industry'' and the priorities for B disposal or distribution of excess vacant land laid down in sub-sections (1) to (5) have adverse impact on the directive principle contained in Article 39(b) in as much as private purposes receive precedence over common good. The enactment which contains such provisions that produce contra results cannot be said to be in furtherance of the directive principle of Article 39(b) and cannot receive the benefit of the protective umbrella of Article 31-C. [90li C-D,G-H] c 4.6 It is well settled that it is only when there is ambigutty in the text of any provision in the enactment that the preamble could be looked into. Here, there is no ambiguity whatsoever in section 23(1) and (4). Far from there being any ambiguity there is express provision in section 23(1) and (4) iodicating the priorities in the matter of disposal or distribution of excess D vacant land, in face of v.hich, the Preamble cannot control, guide, or diref.'.t the disposal or distribution in any other manner. (907 A-CJ

4.9 Section 23 b7 no stretch deals with the objective of Article 39(c) G at all but only deals with the objective underlying the directive principle or Article 39(b) and its provisions clearly run counter to that objective and as such the enactment which contains such provisions must forfeit the benefit of the protective umbrella of Article 31-C. [908 C-DJ

4.10 The definition of "industry" in section 23 cannot be read down by ff the Court so as to confine the same to industries in public sector or co-opera· tive sector or the like where benefit to community or public at large would be the sole consideration, so that allotment of excess vacant land acquired under the Act to private enterpreneurs for private purposes which runs counter to the

i.iss. l1111M SINGH v. UNION 871

doctrine of eminent da,-nain would bC completely eschewed, beceu1e Parliament has for the purpose of section (i.e. ror pur.::oses of disposal or distribution of A such excess vacant land) deliberate1y and in expre;s terms adopted a very wide definition which includes within its scope not merely trading or manufacturing activity but also any business or profession in priv.lt~ sector and reading down 0 the definition would be d.:>ing violence to the Parli1ment s intention stated in ·express term•. (908 G-H. 909A]

B 4.11 Nor can sub-section (1) of section 21 of the Act be read aa containing merely an enabling provision; the sch-:me of sub-sections (1) to (4) read together ciearly shows that the disposal of excess vacant land is first to be done under sub·section (lJ aod disposal under sub·section (4J comes thereafter.· The opening words of sub·section (4), "'subject to sub-sections (I), (2) and (3)'' cannot be read as constituting a non obstante clause giving an overriding effect to sub-section (4) nor can sub-section (4• be read as if the opening words c were absent. By indulging in such interpretative acrobatics, the Court cannot reach the opposit~ result than is ·warranted by the plain text of the provision. Further, to say that every disposal of excess v:icant la.ad ur.d<:r sub-section llJ must be for •common good' is to read into that sub-sec~ion s 1mething which is not there; it amounts to rewriting that sub-section, wh!cl-i cannot be done, the Preamble noto\ithstanding. Such irlterpretations require the restructuring of the entire section-a function legitimately falling within the domJin of legislature. Moreov'er, sub·sections (I), (2J, (3) and (4) of section 23 arc integral parts of the wh~le scheme dealing with the disoos1l of C'(cess vac1nt land acquired under the Act and as such cannot be severed from one another. The attempt to salvage section 23, either wholly or in part, by seeking to free it from the two vices, namely {i) the adoption of the wide d:finition of "industry ... and (ii) the priorities m~ntioried therein governing the disposal of excess vacant land acquired under the Act, must, therefore. fail. [909 C·GJ

S.1 Though the authorisation was for imposition of ceiling on whom immovable property Parliament deliberately kept out built up properties from the purview of the Act and the Act seeks to impose ceiling only on vacant land in urban agglomerations; that being so any restriction on transfer of built up properties or part thereof (including flats therein) standing on urbtn land falling within the permissible ceiling area would be outside the purview of the · Act. (915 E-FJ

5.2 Such a provision, as in Section 27 or the Act would not be .G incidental or ancilliary to the ceiling con!emplated by the Act and would not fall within the phrase "for matters connected therewith" occurring in the Preamble and the long title of the Act, for the words •·matters connected

r therewith" occurring in the concerned phrase must be coreJated to what precedes the phrase, namely, •:an Act to provide for ceiling on vacant land in urban agglomerations. for the ac:'.luistion of such land in excess of the ceiling H ! limit, to regulate th: construction of building1 on s•tch land". and therefore. the words •'matters connected therewith'' mu!tt mean matters in retatioil to the • c:cilina: imposed by the Act. A reference to objective! under Article 39(b) (c)

812 SUPREM!! COURT REPORTS (1985] SUPPL. s.c.Il.. (for the achievement of which the enactment is allegedly taken in hand) in the A Preamble or long title cannot enlarge the ambit or scope of the Act. Any restriction imposed on built-up properties falling within the permissible ceilina: area left with the holder would, therefore, be outside the ambit and sceopc of tho Act. [914 0-H, 915AJ

5.3 In the absence of any guidelines for the exercise of the power and In the absence of any standards having been laid down by the Legislature for B achieving the objectives of preventionof concentration, speculation and profiteer- ing in urban land and urban property, it cannot be said that there three broad objectives recited in the Preamble could effectively or adequately guide the cxer• cise of power by the competent a~1thority in the matter of granting or refusing to grant the permission under section 27 and is bound to produce arbitrary or discriminatory results. Further, the provision for appeal under section 33 the a Appellate Authority and a revision under section 34 to the State Government would not be of much avail to preventing arbitrariness in the matter of grant ing of refusing to grant the permission. Section 27 which does not adequately control the arbitrary exercise of the power to grant or refuse the permission sought, is clearly violative of Article 14 of the Constitution and as such the requirement of permisJion contained therein is ultra vires and unconstitutional, [915 G-H, 916A-BJ D Per A.P. Sen, J. (concurring)

l.1 Sub-sections (2) and (3) of Section 23 and the opening words subject to the provisions of sub-sections (I), (2) and (3J" in section 23(4) of the Urban Land (Ceiling and Regulation) Act, 1976 are ultra vires of the Parliament and these provisions are not protected under Article 31-B and 31-C of the E Constitution. Sub-section ( 1) of section 27 of the Act is invalid in so for as it imposes a restriction of transfer of urban property for a period of ten years frem the commencen1ent of the Act, in relation to vacant land or building there- on, within the ceiling limits. The remaning provisions of the Act, including sub-section (4) of section 23 being in conformity with PJ.rt IV of the Constitu- tion and Article 31(2) are valid and constitutional. The Act is in iurthtrance

' of the directive principles under Article 39(b) and (c) and has the protection of both Article 31-B and 31-C. [946 B-FJ

1.2 To strike down the whole Act would be against the national interest. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits of the organic law of the Constitution, it must be allowed to stand as the true expression of the national will. Here, the invalidity G of the provisions of sub ..sections (1) to (3) of section 23 and the opening words ''subject to the provjsions of sub-sections (I), (2) and (3)'' in section 23(4) can- not affect the validity of the Act as a whole, in as much as the said provisions arc not inextricably bound up with the remanining provisions of the Act. Further, the legislature would have enacted what survives without enactina the part that is ultra vires. The Act still remains the Act as it was passed i.e. an Act for imposition of ceiling on urban land [935 D-E, 9_.6 A-BJ H Attorney-General for Alberin v. Attorney General for Canada (1947] AC-505 at 518 quoted with approval.

M!s. BHiM SINGH v. UNION 873

1.3 In determining the effect of law upon the individual's right to property, the Court must take judicial notice of the fact of vast inequalities in A the existing distribution of property in the Country. The CourCs concern lic1 not merely with applying the preexisting sets of theories, concepts, principles and criteria with a view to determining what the law is on a particular point. The proper approach should be to view the principles with the realisation that the ultimate foundation of the Constitution finds its ultimate roots in the authority of the people. And, constitutional questions should not be deter- B mined from a doctrinaire approach, but viewed from experience derived from the life and experience or actual working of the community, which takes into account emergence of new facts of the community's social and economic life aff..:cting property rights of the individual, whenever, among others, the validity of a Jaw prescribing preference or discrimination is in question under the "equal protection90 guarantee. [936 3-E]

2. The artificial definition of family in section 2 (f) of the Act h valid. c As a result of the artificial definition of "family'' in section 2(f), a Joint Hinds family is excluded from the purview of section 2 of tha Act, but such a total exclusion of Joint Hindu Family does not render the Act void and unconstitu- tional as violative of Article 14. Parliament deliberately excluded a joint family from the purview of the section as it was beset with difficulties in imposing a ceiliD$· The Act aoplies to Hindus, Mohaminedans and Christians alike. By D the exclusion of a Joint Hindu Family the members of a Joint Hindu family, whether governed by the Milakshara school or the Dayabhaga school were brought at par with others. Therefore, there is nothing wrong in the exclusion. [937 E-H, 9l8A, C-E]

3.1 The contention that the amount fixed by sub-section (6) of section (I) of the impugned Act is totally arbitrary and illusory since there is no nexus between the value of the property and the amount fixed and, therefore, the maximum amount fixed under sub-section (6) makes the Act confiscatory in total abrogation of the fundamental right guaranteed under Article 31(2) cannot be accepted. [9J8 F-A]

3.2 The Constitution (Twenty-fifth Amendemnt) Act, 1971, has placed the matter of adequacy of compensation beyond the pale of controversy by substituting the word "amount" for the word "compensation" in Article 31(2) and made the adequacy of the amount payable for acquisition or requistion of the property nonjusticiable. When the Court has no power to question the adequacy of the amount under Article 31{2), it cannot be said, that the amount determined according to the principles laid down in sub-section (1) subject to the maximum fixed under sub-section (6) thereof is illusory merely because of inadequacy. The legislature in its wisdom has laid down the principles and fixed a ceiling on the maximum amount payable and considers that Rupees Two Lakhs is a fair and just recompanse. That is a legislative judgment and the Court has no power to question it. [938 G, 939JFG, 942 E-F,G] H H.H. Kesavananda Bharati v. State of Kera/a [1973] Supp, SCR P.I; R.C. Cooper v. Union of india [1970] 3 SCR 531; State of Kera/av. Gwalior Rayan

874 SUPRBME COURT REPORTS t19ssj SUPPL. S.C.R

Silk Mauufacturlng Co. [1974] I SCR 671; State of Karnataka v. Ranganatha A Reddy [1978] l SCR 641 followed.

4.1 Sub-sections (I), (2) and (3J of section 23 and the opening words "subject to the provisions of sub-sections (1), (2) and (3)" in sub-section (4) of section 23 are ultra vires of the Parliament. [935 B-C]

4.2 Apart from the five pillars or the Constitution, namely, Sovereign B Demoeretic Republic, Equality of status and opportU.nity, Secularism, Citizen's right to worship and the Ruic of law-, the Goncept of social and economic justice-to build a welfare State-, is equally a part of the basic structure or the fundation upon which the Constitution rests. The provisions of sections 23(1). (2) and (3) and the opening words in sections 23(4) are the ver)' antithesis of the idea of a welfare State based on social and econornic justi::e. Since c these provisions permit acquistion of property under the Act for private purpo-:;es, they o~end against the Directive Principles of State Policy of Article 39 {b) and (c) and are 1lso violative of Article 31(2J and tll·::refore, not protected under Article 31-B. ['>34 G-H, 935 A-BJ

Indira Nehru Gandhi v. Raj Narain, {1976} 2 SCH. 347 rehed on

D H.H. Kesai·ananda Bharyti v. State of Kera/a [I 973J Supp. SCR p.I explained.

4.3 It is extremely doubtful whether compulsory acquistion of all the excess vacant land in all urban agglomeration throughout the country for a bold, indefinite and unspecified objective like' industry", simliciter would be a E valid exercise of the power of eminent domain. [928H·929A]

4.4 Although the impugned Act is enacted with a laudable object to subserve the common good, in furtherance of the Directive Principles of State Policy under Article 39(b) and (c), in terms of sub-sections (I), (2J and (3) of section 23 it would be p:rmissible to acquire vacant land in urban agglomera- F tions and divert it for private purpo5es, the whole emphasis being on industriali- sation. The opening words in section 23 (4) "subji!ct to the provisions of sub- sections (I), {2) and (3)'' make the provisions of seation 23(4J subservient to section 23(1), which maket it lawful for tho allottee that is the industrialist to hold such land in excess of the colling limit. [928 D-F]

4.5 The provisions of sub-sections (1), (2) and (3) of •ection 23 cannot be read in the light of the Preamble of the Act or the Directive Principles under Article 39(b) and (c). [929 B·CJ

When the language of the section is clear and explicit, its meaning cannot be contrOlled by the Preamble. It is not for the Court to restructute the section. The restructuring of a statute is obviously a legislative function. The matter is essentially of political cx.pendiency and as such it is the concern of the statesmens and, therefore, the domain of the legislature and not the judiciary. [929 C-E]

MSS. BRIM SINGH f. UNION ins The use of the words "subject to the provisions or sub-sections (1), (2) and (3)'' in section 23(4) takes away the complusion on the State Government A to adhere to the Directive Principles under Article 39 (b) and (c) in making allotment of the vacant lands in an urban aggolomeration acquired under the Act. The words "subject to the provisions of sub-sections (1), (2) and (3)'' i.1 in section 23(4), appearing in the context means "in addition to if anything l; kft over after the allotment under section 23(1)". [929 F-G]

A legislation built on the foundation of Article 39(b) and (c) permitting B acquisition of private prop:rty must be for a Public purpose. that is to sub- serve the common good Sub-sections (I), (2) and (3) of section 23 of the Act negate that principle. Furthern1ore, Article 31(2) consists of three pre- requisites, namely, (i) the property shall be acquired by or under a valid law; (ii) it shall be acquired only for a publi ·purpose, and (iii) the person whose property has bee:-i acquired shall be given an amount in lieu thereof. The definition of ·'industry·• in Explanation (b) to section 23(1) is wide enough to c include any business, trade or vocation carried on for private grain. Tllere cannot be "mixed purpose·' of public and private to substain under legislation Article 39(b) and (c). The vice lies in section 23(1) and the Explanation (b) thereto, which on a c0mbi11ed reading, frustrate the very object of the legislation. [930 A-CJ D 4.6 The concept of '•public purpose" necessarily implies that it should be a law for the acquisitio;i or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserves public interest. If in reality the object of the acquistion under the Act is to set up industries in the private sector as is permissible fro n the provisions of section 23(1) of the Act, nothing prevents rhc State from taking recourse to E section 40 of the Land Acquisition Act, 1894, for which there must be quid pro quo, that is, payn1~nt of compensation. according to the 1narket value. [930 F-G]

4 7 The guidelines issued by the Government of India, Ministry of Works and Housing clarifying the intent and purpose of the provisions of the F Act cannot supersede or alter any of the provisions of the Act or the rules made thereunder. The Guidelines cannot alter the "priorities'' laid in the NCtion~. The 1uidelin1s are nothina but in the nature of Executive Instructions and cannot obviou'3ly control the plain meanina of the section. [930 O~H, 932EJ

Where the language of the Act is clear and explicit, the Courts must give G effect to it. whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. Therefore, the courts cannot be called upon the interpret the provisions of section 23 of the Act in the light of the Guidelines issued by the Government of India, Ministry of Works and Housing. 932 E-Fl

H 4.8 The provisions of sub-sections (I). (2) and (3) of section 21 and the opening words "'subject to the provisions of sub~sections ( J ), (2) and (3) in section 23(4) which makes tho settina up of industries the dominent object for

SUPREME COURT REPORTS (l98SJ SUPPL. s.c. k the acquisition of vacant land in urban agglomerations under the Act are not in keeping with Part IV of the Constitution and, therefore, not protected under Article 31-C. [932 G-H]

4.9 A legislation which directly runs counter to the Directive Principles of State Policy enshrined in Article 39(b) and (c) cannot by the mere inclusion in the Ninth Schedule receive im:nunity under Article 31-B. The Directive Principles are not mere homilies. Tl1ough these Directives are not cognisable by the Courts and if the Government of the day fails to carry out these objects no court can make the Government ensure them, yet these principles have been d~cla:red to be fundamental to the governance of the country. In short, the Directives emphasise. in amplification of the Preamble, that the goal of the Indian policy is not laissez faire, liut a welfare State, where the State has a positive duty to ensure to its citizens social and economic justice and dignity of c the individual. It would serve as an ' 1 Instrument of Instructions" upon all future governments, irrespective of their party creeds. 933A-B, E-F]

5.1 The provisions of sub-section (1) of section 27 of the Act is invalid in so far as it seek to affect a citizen's right to dispose of his urban property in an urban agglom~ration within the ceiling limits. [946 B-Cj D 5.2 The right to acquire, hold and dispose of property guaranteed to a citizen under Article 19(1)(f) carries with it the right not to hold any property. As such a, citizen cannot be compelled to own property against his will [945 G-H)

There is no justification at aJl for the freezing of transactions by way of sale, mortgage, gift or lease of vacant land or building for a period exceeding ten years or otherwise for a period of ten years from the date of the commence- ment of the Act, even though such vacant land with or without building thereon falls within the ceiling limits. [945 E-F]

If vacant land owned by a person falls within the ceiling limits for an urban agglomeration. he is outside the purview of section 3 of the Act. That being so, such a person is not governed by any of the provisions of the Act. [946AJ

Excel Wear v. Union of India and Ors. [1979) I SCR 1009 relied on.

G ORIGINAL JURISDICTION: Writ Petition No. 350/of 1977 etc.

Under Article 32 of the Constitution of India.

S.K. Jain and S.S. Khanduja for the Petitioners. H R.N. Poddar and Ms. A. Subhashinl for the Respondents.

The following Judgments were delivered

MSS. BHIM SINGH v. UNION (Chandrachud, C.J.) 877

CHANDRACHuo, C.J. : A large group of persons holding vacant lands in different urban agglomerations in the country had filed A writ petitions in this Court, challenging the validity of some of the key provisions of the Urban Land (Ceiling and Regulation) Act, 33 of 1976. Those writ petitions were disposed of on November 13, 1980 by a Constitution Bench consisling of Krishna Iyer J., Talzapurkar J., A.P.Sen J., and the two of us. Each of our three 8 learned Brethren delivred a full judgment. We delivered a short judgment and stated that fuller reasons will follow later.

We had discussed with one another the several points arising in the writ petitions. But, we were running against time, not an unusual predicament, since Krishna Iyer J. was due to retire on c November 15, 1980, Tulzarpurkar J. differed from all of us, hold- ing that the impugned Act is not protected under Article 31 ·C or under Article 31-B since, it did not further the Directive principles contained in clauses (bl and (c) of Article 39 of the Constitution. The learned Judge held further that since Chapter III of the Act, D comprising the substratum of the very scheme of the Act was invalid the entire Act had to be struck down as uncostitutional. A.P. Sen J. agreed with us on all the points e~cept that according to him, sub- sections t I), (2) and (3) of section 23 and the opening words of

• section 23( 4) of the Act are unconstitutional. not being protected by Articles 31-B and 31-C of the Constitution. Krishna Iyer J. concurred w•th us in holding that the entire Act is valid save and e~cept section 27(1 ), insofar as that section imposes restrictions on the transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area. We took the view that the impugned Act was intended to and did in fact F implement or achieve the purpose of clauses (b) and (c) of Article 39 and that, the vice from which a few provisions of the Act could be shown to suffer, would not justify a contrary conclusion.

We are free to confess that if the full text of the judgment of G Krishna Tyer J. were available to us sufficiently in advance we would not have delivered a separate order stating that fuller reasons will follow later. The judgment had to be pronounced on November 13, 1980 since, Krishna Iyer J. was due to retire two days later. As we have stated earlier, all of us had together-discussed the various points arising in these cases and we knew the conclusions to which we had respectively come. But, it is not possible to express agree· ment with the !in~ Qf rea,soning of a jud11me11t, without examining

878 SUPREME COURT REPORTS (1985] SUPPL. s.c.R.

the jud2ment carefully. That opportunity became available to us latter. We have gone through Krishna Iyer J.'s judgment closely and find that there is nothing that we can usefully add to it.

The only further order whicli we propose to piss now is 11ay that we agree fully with the reasons given by Kri,hn2 Iyer J. in his 8 judgment reported in 1981(1) S.C.C'. 166.

CH \NDRACHUD, C.J. We have peru>ed the judgment prepared by Brother Tulzapurkar with care bill, with respect, we are unable to agree with him that the Urban Land (Ceiling and Regulation) Act c 33 of 1976, does not further the Directive Principles of State Policy in clauses (bl and (c) of Article 39 of the Constitution. The vice from which a provision here or a provision there of tbe impugned Act may be shown to suffer will not justify the conclusion that the Act is not intended to or does not, by its scheme, in fact implement or achieve the purposes of clauses (b) and (c) of Article 39.

The definition of 'family' in section 2(f), which in relation to a person means the individual, the wife or husband, as the case may be, of such injividual and t!1eir u~mirrid minor childorn, will not necessarily lead to concentration of wealth in the hands of a few person or familie1. Such is not the intendment, nor the drive, nor the direct and inevitablo consequence of the aforesaid dofinition of 'family'.

Section 23 of the Act i; in our opinion valid and does not suffer from any constitutional infirmity. The definition of the word 'industry' in clause (b} of the Explanation to that section is undoub- tedly unduly wide sine~ it include; "any business, profession, trade, undertaking or manufacture". If sub-section (I) of section 23 were to stand alone, no doubt could have arisen that the Urban Land G Ceiling Act is a facade of a social welfare legislation and that its true, though concealed, purpose is to benefit favoured private indivi- duals or associations or individuals. But the preponderating provision aoverning the disposal of exce;s vacant land acquired under the Act is the one contained in sub-section (4) of of section 23 whereby, all vacant lands deemed to have been acquired by the State Goveenment under the Act "shall be disposed of... to subserve the common good". The provisions of sub-section (4) are "subject to the provisions of ~uh-sections (1), (2) and (3J "but the provisions of sub-section (I)

MSS BHIM SINGH v. UNION (Chandrachud, C.J.) 879

are enabliug and not compulsive and those of sub-sections (2) and (3) are incidental to the provisions of sub-section (1). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section (4) of section 23, subject to this, that in a given case such land may be allotted to any person; for any purpose relating to, or in connection with, any 'industry' or for the other purposes mentioned in sub-section ( !), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being 'social good', any disposal in any particular c.se or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intend- ment of •he Act. The Preamble to the Act ought to resolve interpre· tational doubts arising out of the defective drafting of section 23. c It shows that the Act was passed with the object of preventing concentration of urban land in the hands of a few persons and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. 'Common good' being the writing on the wall, any disposal which does not serve that D purpose will be outside the scope of the Act and therefore Jacking in competence in diverse senses. Private property cannot under our Constitution be acquired or allotted for private purposes though an enabling power like that contained in sub-section ( 1) of section 23 mw be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in clause E (b) of the Explanation to section 23.

Section 11(6) which provides that the amount payable under sub-section (1) or sub-section (5) of section 11 shall, in no case, exceed two Jakhs of rupees is valid. The amount thus payable·is not illusory and the provision is not confiscatory. Rupees two lakhs is not like a farthing even if the excees land may be a fortune.

Finally, we are of the opinion that sub-secton (1) of section 27 of the Act is invalid in so far as it imposes a restrictiou on transfer of any urban or urbanisable land with a building or a portion only of such building, which is wrthin the ceiling area. Such property will therefore be transferable without the constraints mentioned in sub-section (I) of section 27 of the Act.

The Writ Petitions are accordingly dismissed except for the restricted striking down of section 27, I) of the Act. There will be no order as to costs.

880 SUPREME COURT REPORTS [1985) SUPPL. s.c.R.

Fuller reasons will follow latter. A K~1SHAN IYER, J. I agree with the learned Chief Justice both regardmg the constitutionality of the legislation and regarding the partial invalidation of s. 27 (1). Nevertheless, I consider it necessary to strike a few emphatic notes of concordance having special regard B to the discordance of my learned brother Tulzapurkar, J. I have carefully perused the judgment of Tulzapurkar, J, but must express my deferential disagreement because on a few fundamentals there is sharp divergence batween us.

The legislation, as its title indicates, is obviously a measure for inhipiting concentration of urban lands in the hands of a few persons and fore quitetable distribution of such land to subserve the common good. Article 39 (b) and (c) of the Constitution are directly attraced and there is no doubt that the fullest exploitation of the material resources of the community undoubtedly requires distri- bution of urban land geared to the common good. It is also a notorious fact that cocentration of urban land in private hands is an effective forbiddance of the maximum use of such land for industrial purposes at a critical juncture when the nation is fighting for survial thro.ugh industrialisation. It ~eeds no argument to conclude that the objective of the legislation as set out in the long title and in the statutory scheme is implementation of Part IV of the Constitution. The Directive principles of State policy being para- mount in character and fundamental in the country's governance, distributive justice envisaged in Art. 39 (b) and (c) has key role in the developmental process of the socialist Republic that India has adopted. The conclu,ion is inevitable that is a broad measure of State policy, ceiling on and regulation of urban land ownership is an imperative of economic independence and is, therefore, on the national agenda of planned development. Indeed, there was no controversy on this question before us. One of the points which has been argued and has found approval with my learned brother

MSS BHIM SINGH v. UNION (Krishna Iyer, J.) 881

Tulzapurkar, J., turns on the gross inadequacy of compensation fixed under s. 11 (6) of the Act. There is a specific case before us that urban land worth a few crores will fall a prey to acquisition under this Act, but thanks to s. 11 (6), "the amount" payable in return to the owner shall not exceed Rs. 2 lakhs. This, it is contended, is an illusory compensation in reckless disregard of the market value of the property acquired. I am unable to agree with this submission. B The taking over of large conglomerations of vacant land is a national necessity if Art. 39 is a constitutional reality. "Law can never be higher than the economic order and the cultural development of society brought to pass by that economic order." (Marx). There- fore, if Art. 38 of the Constitution which speaks of a social order c informed by economic justice, is to materialise, law must respond effectively and rise to the needs of the transformation invisioned by the founding fathers. But it is contended that any legislation which violates Art. 31 (2) or Art. 19 (!) (f) (both of them have since been deleted by the 44th Amendment to the Constitution although on the relevant date they were part of part III) must fail nothithstanding the fact that Arts. 31 B and 31 C shield the legislation in question. It h said that the Act is vulnerable for the reason that right to property armoured by the abov two Articles is inviolable unless the taking is for a public purpose in contrast to a private industry and the payment in return, even if not an equivalant, is be fair enough so as not to be castigated as illusory. The various amendments to Art. 31 culminating in the present provision which provides for the payment of an "amount" disclose a determined approach by parliament in exercise of its constituent power to ensure that full compensation or even fair compensation cannot be claimed as a fundamental right by the private owner and that short of paying a 'farthing for a fortune' F the question of compensation is out of bounds for the court to investigate.

The question is whether in the light of Kesavananda Bharati (1 ) (especially the observations of Chandrachud, J), a sum of Rs. 2 lakhs G in s. 11 (6) is a farthing for a fortune. I repudiate the proposition that payment of a sum of Rs. 2 lakhs, whatever the total value of the property in the market may be is so fictitious and flimsy as to be a farthing. There are no absolutes in law as in life and the compul- sions of social realities must unquestionably enter the judicial verdict. H

(I) Kesavauanda Bharti v. stat~ of ~crala [I973j 4 sec zi5 at 959,

882 SUPREME COURT REPORTS (1985] SUPPL. S.C. R.

What is the dimension of Indian penury? What is the basis of our constitutional order? What is the goal of the Republic? What is the meaninig of the egalitarian ethos of our society? What do we mean by "We, the people of India"? Unless these profound roots of our social constitutional order are probed, we can never reach an effective answer to legal formal issues. The roots and fruits of our National Charter depend on a clear grasp of the constitutional fundamentals. In this context, it is important to remember what, right at the beginning even as the proceedings of the constituent Assembly were culminating, Nehru had warned:

If we cannot solve this problem soon, all our paper c constituti-ons will become useless and purposeless. If India goes down, all will go down; if India thrives, all will thrive; and if India lives, all will live.

Pio had repeated with emphasis: D The first task of this Assembly is to free India through a new constitution, to feed the starving people and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. E Indeed, the tryst with destiny that India made when it became free found expression in a historic speech by the then Prime Minister, Jawahar Lal Nehru:

F The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation bas been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work ~ .. G will not be over.

We must notice the Indian human condition. "Indian poverty, to many who have an acquaintance with poverty in similar societies is unique", writes Segal in his book The Crisis of India: "It is unique in its depths, which seems incapablo of supporting life at all; unique in its blatancy, for it is everywhere, in city and village, and concealed amon~ chjmneys or trees, n<;>t isol~ted like aq epidemic in an

MSS BHIM SINGH •• UNION (Krishna Iyer, J.) 883

inaccessible slum, but everywhere, on the movement of one's feet, always some where in the circle of one's sight; unique in its sheer magnitude. for in India the poor are not to be numbered in hundreds of thousands, but in hundres of millions; unique in the quality of its submission, which registers a kind of glazed pride." In this context we may also read what Rajen Babu stated as a framer of the Consti- tution: B To all we give the assurance that it will be our endeavour to end poverty and squalor and its companions hunger and disease, to a abolish distinctions and exploi- tation and to ensure decent conditions of living. c We may have to remember that a galaxy of Constitution-makers like Sardar Patel ane G. B. Pant and Rajagopalacbari, not to speak of Jawahar Lal Nehru, where doubtful about the court being given the power to pronounce upon the question of compensation when the State acquired property. Indeed, it is revealing to read the debates in condensed form given by Granville Austin: (1) D

Sardar Patel closed the debate with a speech that sounded like a requiem for land-lords ..... What did 'public use' mean be wondered. Pant then said: Suppose the government acquires zamindari rights and then E abolishes them. Or what if the Government takes over Connaught Place (the central shopping and office area of New Delhi) and then redi;tributes the buildings to the tenants? The first stage is acquisition. Does that come under this clause? To Ayyar's answer of 'Certainly', F Pant replied that he opposed the wording if it means that the government would not be free to determine the com· pensation it would have to pay. If this clause covers all cases of acquisition. said Raj1gopalachari, then the ques- tion of the justness of compensation will go to the courts 'with the result that government functioning will be G paralysed'. ... Panikkar suggested that they should take out the 'just' so that it would not be justiciable. Pant replied that if this covered acquisition for social purposes, 'then I submit payment of compensation should not even be compulsory'. Patel concluded the discussion. H

(!) The Inl!ian copstitu\ion ; Cornerstone of a N'ation p. 88

884 SUPRBMI! COURT REPORTS (198S] SUPPi;, s.c.a.

'If the word 'just' is kept,' he said, 'we come to the A conclusion that every case will go to the Federal Court.' Therefore "just" is dropped ... ... .. . . .. The Assembly greeted the committee's actians favourably.

We need not go into the details except to state that even Gandhiji B took the view that anything like compensation could possibly not be given when property was taken from the property owners by the State for community benefit. I mention this this only to drive home the point that right to property is not part of the basic structure of the Constitution even as right to poverty is not the basic structure of India for ever. The whole adventure of the Constitution is to remove c poverty and in that process remove concentration of property, not for a return, but for almost free, if the justice of the situation commended it self to the legislation to take it that way.( 1) Of course, it may be a deception to say that an "amount" is paid if noth· ing is paid except a tittle. So what we have to consider is whether the D amount of Rs. 2 lakhs is so utterly deceptive and totally nominal as to be discarded as a farthing with contempt. Having regard to the human condition of a large percentage of pavement dwellers and slum dewllers in our urban areas and proletarian miserables in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where El half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is farewell to poignant facts and difficult to accept. In my view, with the greatest respect for my learned brother, I am unable to assent to the view thats. II (6) contravenes Art. 31 (2) because the payment stipulated is a mere mockery.

' To put a ceiling on the maximum amount payable when property is taken is reasonable and does not spell discrimination unless the maximum itself is a hoax, being trivial. In a Constitution which creates a Socialist Republic egalite is the rule of life and where gross inequalities mar the economic order, a measure of G equalisation is but one strategy of promoting equality and has to be viewed as part of the dynamics of social justice. Indeed, even in the Income Tax Act, at a certain stage, almost all the income is taken away by a steep rate of tax leaving next to nothing to the income earner. We have to be pragmatic and show empathy with the values H (I) See Granville Austin, The India~ Constitution : \;ornerstone of a !'l~tion, p. 8~ . , ,

MSS BRIM SINGH v. UNION (Kri!hna iyer, i) 885

of the Constitution. Chief Justice Earl Warren's statement is apposite as a reminder to our judical conscience:(1) A Our judges are not monks or scientists, but parti cipants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no B theortical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom.

I have no hesitation in holding s. 11(6) as invulnerable. c 'Family' as defined in s.2(f) has been held invalid by my learned brother Tulzapurkar, J,, as an arbiirary, artificial creation of the statute inconsistent with the natural unit prevalent in the country. Here again, I must emphasise that la·v is never static and must respond to the challenges ol change:(') D

The law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right ..... Law is here to serve! To serve what? To serve, insofar as law can properly do so, within limits that I E have already stressed, the realization of man's ends, ultimate and mediate Law cannot stand aside from the social changes around it.

It is possible that in the las! century the prevalent concept of family F was of a certain pattern. Indeed, in the diversity of Indian social structure the conce 't of 'family' has varied from region to region and even from community to community and we cannot postulate any parameters in this behalf. Moreover, fission, not fusion, is the modern trend and wherever might have been the situation in Indian rural life in the 1950s there is no doubt that nuclear families are be· G coming the vogue in the late 1970s and 1980s of Indian urban life. In the Western countrie; the family unit con sis ts of the parents and their minor children and the West has invaded the East in life-style

H (I) Fortuno, November JQSS (2) William J. Brennan Jr.: Opinion, Roth v. United States 354 US 47• [1957) ' • • v

886 SUPREME COURT REPORTS [i98S] SUPPL. s.c.k. A

• atleast in our cities. Whatever may be the pastoral life of old or the Idyllic picture we may cherish the social facts tell a different tale in contemporary India of the cities. There is hardly space for a unclear family to live in urban conditions and to think of large joint families as the natural unit is to resurrect by gone ways of life and turn the blind eye to the rapid growth of the small family of man B and wife-'we two and we shall have two' is the desideratum and social factum. In these days of family planning and self-reliance of the adult we cannot condemn as arbitrary, by a process of judicial ratiocination, the legislative provision that a family shall be defined as the parents plus their minor children. I, therefore, hold that c 'family' as defined in s. 2(f) of the Act accords with the current life· style in urban conditions and is neither artificial nor arbitrary nor violative of Act 14. It is noteworthy that many agrarion legislations have been upheld by this court in a spate of recent cases where the definition of 'family' is substantially the same. D I may permit myself a few observations on s. 23 of the Act and the grounds of invalidation relied on by the challengers. The section bas been loosely or ambivalently drafted and runs thus :

23. Disposal of vacant land acquired under the Act.

(I) It shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Goverment under this Act or is acquired by the State Government under any other law to any person for any F prupose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit. G ,, , . Explanation - For the purposes of this section,

(a) where any land with a bulding has been acquired by the State Government under any other ff Jaw and such building has been subsequently demoli· shed by the State Government, than, such land shall be deemed to be vacant land acquired under such other law:

MSS BHill SINGH '· UNION (Krishna Iyer, J.) 887

(b) "industry" means any business, profession, trade, undertaking or manufacture. A

(4) Subject to the provisionio of sub-sections (I), (2) and (3), all vacant lands deemed to have been acquired B by the State Government under this Act shall be disposed of by the State Government to subserve the common 30od on such terms and conditiom as the State Govern- ment may deem fil to impose. c Certain basics must be remembered as ideological tools of legal interpretation. The purpose of the enactment, garnered from the Preamble, is to set a ceiling on vacant urban land, to take over the excess and to distribute it on a certain basis of priority. The whole story of the _legislation, the long gestation D of pre-legislative consideration, the brooding presence of Art. 39\b) and (c) and the emphasis in s. 23(4) on common good as the guiding factor for distribution point to public purpose, national development and social justice as the cornerstone of the policy of distribution. It is not and never can be compulsory taking from some private owners to favo1ir by transfer other private owners. The prevalent pathology of corrupt use of public power cannot be assu · med by the court lest the same charge be levelled against its echelons. The wide definition of 'industry' or the use of general words like 'any person' and 'any purpose' cannot free the whole clause from the inarticulate major premise that only a public purpose to subserve the common good and filling the bill of Art. 39(b) and (c) will be permissible. Even a private industry may be for a national need and may serve common good. Even a medical clinic, legal aid bureau, engineering consultant's office, private ambulance garage, . i~ pharmacist's shop or even a funeral home may be a public utility . Professions for the people, trade at the service of the community and industry in the strategic sector of the nation's development may well be in private hands in the transitional stage of our pluralist economy undergoin11 a fabian transformation. Why should lands allotted to such private industries or professionals be condemned? The touch· stone is public purpose, community 1ood and like criteria. If the power is used for favouring a private industrialist or for nepotistic reasons the oblique act will meet with its judicial Waterloo.. To presume as probable araft, nepotism, patronaae, political cloth,

888 SUPREME COURT REroRTS (198S] SUPPL. 8.C,J\.

friendly pressure or corrupt purpose is impermissible. The law will be good, the power will be impeccable but if the particular act of allotment is malafide or beyond the statutory and constitutional parameters such exercise will be a casualty in court and will be struck down. We must interpret wide words used in a statute by reading them down to fit into the constitutional mould. The con- fusion between the power and its oblique exercise is an intellectual fallacy we must guard against. Fanciful possibilities, freak exereise and speculative aberrations are not realistic enough for constitutional invalidation. The legislature cannot be stultified by the suspticious improvidence or worse of the Executive.

c r wholly agree with the perspective of my learned brother Sen, J. that Part IV which seeks to build a Social Justice Society, is basic to our constitutional order. Any transgression of Art. 39(b) and (c) is beyond the scope of s. 23(1J and disposal of land there- under must subserve the common good and not the reverse. This D limitation on the wide words of s. 23(1) is a matter of semantics and reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by inter- pretation is the rule. To be trigger-happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power B misuse is interdicted. As Lord Denning said: "A judge should llVt be a servant of the words used. He should not be a mere mechanic in the power-house of semantics". May Lord Denning live long, and his shadow never grow less."(1)

F The power of judicial review to stricke at excess or malafides is always there for vigilant exercise untrammelled by the narrow precedents of Victorian vintage. Prof. H.W.R. Wade's note of judicial activism, in his recent Hamlyn Lectures, will set the sights right:{ 2) G Brainwashed though British lawyers are in their professional infancy by the dogma of legislative sovere- ignty, they ought to excuse rather than criticise the logical contortions and evasions to which Judges must resort in their struggle to preserve their powers. I do not see how H (I) "Lawyer" October 1980 Silver Jubilee 18\ue p. 172 (2) Hamlyn Lectures (32nd series) Constitutional Fundamentals.

i.iss BHIM SINGH v. UNION (Krishna Iyer, J.) 889

they can fairly be accu1ed, to borrow words used by Lord Devlin, of moving too far from their base. They would A be much more open to criticism if they remained content with the wretchedly narrow base to which they confined themselves 30 years ago, when they took clauses of the "if the minister is satsfied" type at face value. For judicial

- control, particularly over disrcetionary power, is a constitutional fundmental. In their self-defensive cam- paign the judges have almost given us a constitution, B

establishing a kind of entrenched provision to the effect that even Parliament cannot deprive them of their proper function. They may be discovering a deeper constitutional logic than the the crude absolute of statutory omnipo- c tence.

The question of basic structure being breached cannot arise when we examine vires of an ordinary legislation as distinguished from a constitutional amendment. Kesavananda Bharati (1) cannot be the last refuge of the proprietariat when bening legislation takes away their 'excess' for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when largescale equalisation processes are but into action. If all the judges of the Supreme Court F in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere viola- G tion if Art. 14 but a shocking, unconscienable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharati (') ghost to haunt the corridors of the court brandishing fatal writs for every feature of H

(t) [t973J 4 sec 255

890 SUPREME COURT REPORTS [198SJ SUPPL. s.c.i

inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a Trojen horse to penetrate! he entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the 'basic structure' missile. Which is more basic? Eradication of die-hard, deadly and pervasive penury degrading all human rights or upholding of the legal luxury of perfect symmetry and absolute equality attractively presented to preserve the status quo ... ante? To use the Constitution to defeat the Constitution cannot find favour whit the judiciary! [have no doubt that the strategy of using the missile of 'equality' to preserve die-hard, dreadful societal inequality is a strategem which must be given short shrift by this c court. The imperatives of equality and development are impatient for implementation and judicial scapegoats must never be offered so thlt those responsible for stalling economic transformation with a social justice slant may be identified and exposed of. Part IV is a basic goal of the nation and now that the court uphold; the urban ceiling law, a social audit of the E<ecutiv~·s implementation a year or two D later will bring to light the gaping gap between verbal valour of the statute book and the executive slumber of law·in-action. The court is not the anti-hero in the tragedy of land refotm, urban and agrarian.

E After all, in a rapidly changing society running on the rails of the rule of law and operated according to constitutional paradigms, the proprietariat is bound to suffer but the country cannot defer the transformation because, then, hunger will know no law. This is the root of the matter. And then comes the irony of continual litigative F clamour and the periodic chorus for property .(1)

Dosn't thou 'ear my 'erse's, as they canters awaay? Proputty, proputty, proputty·than's what I 'ears 'em saay. G And holders and hoarders of wealth may pensively reflect:(')

Few rich men own their own property. The property owns them.

H (1) Tennyson, Northern Fanner, 1869 (2) Robert G. Ingersoll : Speech, N.Y.C. October 29, 1896

MSS JiHiM SINGH v. UNION (Tuizapurkar, J.) 891

I have not bad the leisurily advantage of my learned brothers' full judgments save some discussions but my impending A retirement impels a hurried recording of my reasons for subscribing to the order passed just now. 'Tomorrow to fresh woods and pastures new', but to-day must be fulfilled before tomorrow arrives, and so, I deliver this judgment as is my duty to do, B TuLZAPURKAR, J. By these writ petitions the petitioners, who are holders of vacant land in the urban agglomerations in various States, are seeking to challenge the vires of some of the salient pro- visions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) and since, according to them, some of the impugned provisions C are pivotal and non-severable, having an impact on its entire scheme, the whole Act is liable lo be strucK down as being invalid and unconstitutional. The petitioners have, therefore, prayed for an order quashing notices issued to tbem by the concerned competent authorities under the Act and a mandamus directing the respondents not to implement the provisions thereof agaimt them. D

892 SUP!UlME COURT REPORTS it9ssj SUPPL. i.c.k.

and fixes the ceiling limit for each of the categories thus: Ceiling A limit on vacant land is fixed at 500 sq. metres for the urban agglo- merations of the metropolitan areas of Delhi, Bombay, Calcutta and Madras having a population e:<eeeding ten lakhs falling under category 'A', at 1,000 sq. metres for urban agglomerations with a population of ten lakhs and above, excluding the four metropolitan B areas, falling under category 'B'. at I, 500 sq. metres for urban agglomerations with a population between three lakhs and ten lakhs falling under category 'C' and at 2,000 sq. metres for urban agglo merations with a population between two lakhs and three lakhs falling under category 'C' : vide s.4 read with Schedule I of the Act. The said Schedule does not mention the urban agglomerations having a c population of one lakh and above but if a particular State which passed a resolution under Art. 252 (I) (first part) or if a State which subsequently adopts the Act by passing a resolution under Art. 252 !) (second part) wants to extend the Act to such areas, it could do so by a Notification under s. 2 (n) (A) (ii) or s. 2 (nl (BJ, as the case may be, after obtain;ng the previous approval of the Central Govern- D ment. Chapter III, being the main Chapter, comprising ss. 3 to 24, deals principally with imposition and limits of ceiling on vacant land, acquisition and vesting in the State Government of vacant land in excess of the ceiling limits, payment to be made to the holders for such acquisition, disposal of excess vacant land so acquired and E exemptions from the applicability of this Chapter. Chapter IV comprising ss. 25 to 30 deals with regulation of transfer and the use of urban property; while Chapter V which includes ss. 31 to 47, deals with appeals, revisions, offences and punishments and other miscella- neous matters. F The primary object and purpose of the Act, as its long title and the Preamble show, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings G on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bring about an equitable distribution of land in urban agglomera- tions to subserve the common good, presumably in furtherance of the H Directive Principles of State policy contained in Art. 39 (c) and (b) respectively. The enactment has also been but in the Ninth Schedule as Item 132 by the Constitution (Fortieth Amendment) Act, 1976, in other words, the enactment enjoys the benefit of protective umbrella

MSS BHIM SINGH Y. UNION (Tultapurkar, J.) SPI

Dealing with these two articles, namely, Arts. 31B and 31C and the protective umbrella provided by them in the context of the decision in Kesavananda Bharati's case(') this Court in Waman Rao 8 and others v. Union of India & others,(') has by its order passed on May 9, 1980, held thus:

"In Kesavananda Bharali decided on April, 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its c basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitu· F tioMI amendment made after April 24, 1973 is saved by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is but in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or G essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will became otiose. H (1) (1973! Supp. S.C.R. \ (2) [1980] 3 s.c.c. 587.

894 SUPREME COURT REPORTS (1985] SUPPL. s.c.R.

Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in kesavonanda Bharati. Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure."

Since the impugned Act has been put in the Ninth Schedule by the Constitution (Fortieth Amendment) Act, 1976 i. e. after c April 24, 1973, the said Constitutional Amendment would be open to challenge on the ground that the same is beyond the constituent power of the Parliament if it damages the essential featuses or basic structure of the Constitution; but at the same time the impugned Act has, apparently. received the protective umberIla of Art. 31 C as it stood prior to its amendment by 42nd D Amendment Act inasmuch as it seems to have been enacted in furtherance of the Directive Principles contained in Art. 39 (b) and (c) with the result that in order to succeed in their challenge the petitioners will have to cross two hurdles. ln the first place they will have to establish that the Act is outside the pale of the protective umbrella of Art. 3 IC which they can do by showing that though purporting to do so, it does not, in fact, further any of the said Directive Principles. A scrutiny of the Directive Principles contained in Art. 39 (b) and (c) clearly shows that the basic postulate underlying the former obviously is that diffusion of ownership and control of the material resources of the community is always in public interest and hence the State is directed to ensure such distribution (equitable) there of as best to sub1erve the common good, while the postulate underlying the latter obviously is that concentration of wealth as well as means of production in the hands of few is detrimental to common interest and hence the State is directed to ensure such economic system to operate which prevents such concentration. It would, therefore, be clear that if by the impugned enactment the aforesaid objectives of these Directive Principles are not furthered or if the provisions of the enactment run counter to these objectives the Act would lose the benefit of the protective u mbella of Art. 31 C. H Secondly, after crossing this hurdle, the petitioners will have to show further that the 40th Amendment Act by which the impugned Act was included in the Ninth Schedule was beyond the constituent power of the Parliament since it has damaged the basie structure or th

MSS BHIM SINGH v. UNION (Tuliaputkar, J.) 89~

e1111ential features of the Constitution as refiected in Arts. 14, 19 and 31, which of course, they will be able to do by showing that the impugned Act itself fiagrantly violates aspects of Arts. 14, 19 and 31 which constitute the basic structure or the essential features of the Constitution. B It may be stated that Counsel for the petitioners principally attacked four provisions of the impugned Act (a) artificial definition of'family' given ins. 2 (f) in relation to the prescription of ceiling area, (b) provision contained s. 11 relating to amounts payable in respect of excess vacant land acquired by the State, (c) provision c containedins. 23 relating to disposal of excess vacant land acquired by the State and (d) prohibition or restriction on transfer of a building or a part thereof or a fiat therein, though unconcerned with excess ncant land, without permission, as being fiagrantly violative of those aspects of the petitioners' fundamental rights under Arts. 14, 19 and JI as constitute the essential features or basic structure of the D Constitution. Counsel for the petitioners also contended that some of the aforesaid impugned provisions which are pivotal and have an impact on the entire scheme of the Act, in fact, run counter to the Directive Principles of Art. 39 (b) and (c) and, therefore, but the entire Act outside the pale of the protective umbrella of Art. E 31 C of the Constitution. Counsel, therefore, urged that both the 40th Amendment to the extent it inserted the impugned Act in the Ninth Schedule and the impugned Act deserve to be struck down.

F On the other hand, the learned Attorney General appearing on behalf of the Union of India and counsel for the concerned States of Rajasthan, Andhra Pradesh, Uttar Pradesh and for the concerned competent authorities under the Act, refuted the contentions urged on behalf of the petitioners. It was denied that any provision of the Act runs counter to the Directive Principles of Art. 39 (b} and G (c) of the Constitution. It was pointed out that the impugned Act having been put in the Ninth Schedule and having been enacted in furtherance of the Directive Principles of the State policy contained in Art. 39 (bl and (c) of the Constitution was protected both under Art. 31B and 31C of the Constitution. It was disputed that any provision of the Act violated the petitioners' fundamental rights under Arts. 14, 19 and 31 and, it was contended that even if there )Vas any such ViQlatjon, the Act imd its provisions co11ld not be ' ' ' ..

896 SUPREME COURT REPORTS (1985] SUPPL. s.c.a.

challenged by the petitioners on that ground because of the protective umbrella of Art. 3 IB and 31C of the Constitution and, therefore, the petitions were liable to be dismissed.

I shall first deal with those impugned prov1s1ons of the Act, which according to the petitioners, not merely violate their funda- B mental rights but also have an adverse impact on the protective umbrella afforded by Art. 31C of the Constitution. In this behalf counsel for the petitioners referred to two provisions, namely. s. 2(f) which gives an artificial definition of 'family' in relation to prescrip- tion of ceiling area and s. 23 which contains provision relating to c dispoal of excess vacant land acquited by the State.

Re: s. 1(f) in relation to presrription of ceiling area.

It is by s. 3 of the Act that the ceiling on vacant land in any urban agglomeration is imposed. That section runs thus : D "3. Except as otherwise provided in this Act, on and from the commencement in this Act, on person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under E sub-section (2) of section l."

The ceiling limits referred to in the above section, as stated earlier, have been fixed at 500 sq. metres, 1,000 sq. metres, 1,500 sq. metres and 2,000 sq. metres for vacant lands in urban agglomerations fall- F ing in categories A, B, C and D respectively under s. 4(1). Section 2(i) defines 'person' as including an individual, a family, a firm, a company, or not association or body of individuals, whether incorporated or not; while s. 2(f) defines 'family' thus :

G :'Family", in relation to a person means the ·indivi- dual, the wife or husband, as the case may be, of such individual and their unmarried minor children."

And the Explanation to this clause states that "minor" means II a person who has not completed bis or her age of eighteen years. There is no doubt that the aforesaid definition of 'family' is an arti- ficial one inasmuch as is evclU<les from its scope major childeen two

MSS BHIM SINGH v. UNION (Tulzapurkar, J.) 897

are normally included in the concept of a family; it further completely

• ignores the normal Joint Hindu Family. Counsel for the petitioners pointed out that if this artificial definition of 'family' is considered in A

the context of ceiling limits prescribed under s. 4(1) it produces discriminatory results because of adoption of double standard for fixing the ceiling limit-one for the artificial family as defined and another for a normal family which includes major children or for B Joint Hindu Family governed by Mitakshara Law obtaining in several parts of the country. For instance, in an urban agglomera- tion falling under category 'A' where the ceiling limit is prescribed at 500 sq. metres, a family of a father, mother and say three minor sons (being in all five) together will be entitled to retain for itself olny 500 sq. metres of vacant land whereas a family of a father and c four major sons (being in all five) will be entitled to retain for itself 2,500 sq. metres of vacant land ( 501 sq. metres for father as a person and 500 sq. metre' each for four sons as persons). Counsel urged that such discrimination or inequality arises from the classification made between minor children and major children belonging to a D family but such classification is not based on any intelligible differen- tia having any nexus to the object sought to be achieved by the Act, which is to acquire excess vacant land after leaving the ceiling area to a family and as such tc.e same is clearly violative of Art. 14 of the Constitution. Counsel strongly relied upon two decisic"5 of this Court in this behalf, namely. decisions in Karimbil K•nhikoman v. State E nf Kera/a(') and A.P. Krisl11zasami Naidu etc. v. State of Madras,(') where on simiilr ground the whole of Chapter III of Kerala Agrarian Relations Act, 1961 and the whole of Chapter II of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961, respectively were struck down by this Court inasmuch as the artificial definition of family together with adoption of double standard for fixing F ceiling limit formed the basis of the concerned Chapter in each Act. I find considerable force in counsel's contention.

I may point out that when the agricultural ceiling matters were agrued before us counsel for the petitioners therein had raised a G similar contention in the context of tne artificial definition of 'family' and the adoption of double standard for fixing ceiling limits obtain- ing in the several concerned Acts and in support of such contention counsel had placed reliance on the aforesaid two decisions of this H d) [19621 Supp. SCR 82', (2) [1964] 7 SCR 82.

898 SUPREMB COURT REPORTS (1985) SUPPL. s.c.R.

Court but we rejected the contention on the ground that ample A material had been produced before the Court justifying the adoption of artificial definition of 'family' and double standard for fixing the ceiling limits in those Acts. Production of such justifying material distinguished tile agricultural ceiling matters before us from the said two decisions relied upon by counsel but in the instant case no mate· B rial whatsoever bas been placed before the Court by the respondents justifying the adoption of the artificial definition of 'family' in s. 2(f) and double standard of fixation of ceiling in the impugned Act. It has not been shown that the so·called nuclear families allegedly in vogue have replaced normal families which include major sons or joint Hindu families in urban areas. Besides, if the object of the impugned c Act is to acquire excess vacant land in urban agglomerations after leaving permissible ceiling area to a family the classification made between minor children and major children belonging to a family bas no nexus whatsoever to that object. In my view, therefore, the artificial definition of 'family' given in s. 2(f) when considered in relation to the prescription of the ceiling area under s. 4(1) is clearly violative of and strikes at the root of the equality clause contained in Art. 14 of the Constitution. It cannot be disputed that tbis artificial definition togehtber with the double standard adopted for fixing the ceiling area runs though and forms the basis of Chapter III of the Act and the discriminatory results or inequalities produced thereby are bound to have an impact on the scheme of that Chapter and, therefore, along with it the whole Chapter III must fall as being violative of Art. 14.

There is yet one more aspect which needs consideration in connection with this adoption of the artificial definition of 'family' given in s.2 (f) and the double standard for fixing ceiling area. Apart from the discriminatory results which it produces the question is what is its impact in the context of the directive principle contain· cd in Art. 39 (c) of the Constitution? As stated earlier the postulate underlying the said directive principle in that concentration of wealth in the hands of few is deterimental to common interest and as such the State should ensure such economic system which prevents such concentration and the Act bas been put on the Statute book professedly to achieve that objective. But, by adopting the artificial definition of 'family' in s. 2(f) and having double standard for fixing ceiling limit a contrary result is obtained inasmuch as the Act actaully permits an unwarranted 11nd unjustifie~ c1>11ce11tr11tio11 of

MSS BHIM SINGH v. UNION (Tulzapurkar, J.) 899