Holding

The Urban Land (Ceiling and Regulation) Act, 1976 is constitutionally valid except for s.27(1), which is struck down as an invalid restriction on transfer of urban land within the ceiling area.

Summary

The petitioners, owners of vacant urban land, challenged the Urban Land (Ceiling and Regulation) Act, 1976 on grounds that several provisions violated Articles 14, 19(1)(f) and 31(2) of the Constitution and the basic structure doctrine. The Court examined the artificial definition of "family" in s.2(f), the compensation ceiling in s.11(6), the disposal provisions in s.23, and the transfer restriction in s.27(1). By a majority, the Court held that the Act's purpose of preventing concentration of urban land and promoting the common good aligns with Articles 39(b) and (c) and is protected by Articles 31B and 31C. However, s.27(1) was struck down as an unreasonable restriction on the transfer of urban land within the ceiling area. All other challenged provisions, including s.2(f), s.11(6) and s.23, were upheld as constitutional. The writ petitions were dismissed except for the partial invalidation of s.27(1).

Issues considered

The constitutionality of the Urban Land (Ceiling and Regulation) Act, 1976 vis-Ã -vis Articles 39(b) and (c) of the Constitution
Whether the definition of "family" in s.2(f) violates Article 14
Whether the compensation ceiling in s.11(6) is confiscatory and violates Articles 14 and 31(2)
Whether the disposal provisions in s.23 are inconsistent with the directive principles and the doctrine of eminent domain
Whether the restriction on transfer of urban land in s.27(1) violates Articles 14 and 19(1)(f)
Whether the Act falls within the protective umbrella of Articles 31B and 31C and the basic structure doctrine

Legislation cited

Constitution (25th Amendment) Act, 1971
Constitution (42nd Amendment) Act, 1976
Constitution (Fortieth Amendment) Act, 1976
Land Acquisition Act, 1894
Urban Land (Ceiling and Regulation) Act, 1976s. 11(6), s. 23, s. 27(1), s. 2(f)

Subjects

constitutional validityurban land ceilingdirective principlesbasic structure doctrinecompensation ceilingeminent domainfamily definitionequal protectionproperty rights

Judgment

862

MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC
A
v.

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

[Y.V. CHANDRACHUD C.J., P.N. BEIAGWATI, V.R. KRISEINA IYER,
V,0, TULZAPURKAR AND A.P. SEN, JJ.)

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 F
impugned provisions are pivotal and non-severable, having an impact on its
entire scheme, the whole Act is liable to be struck down as being in-va1id and
unconstitutional. The petitioners have, therefore, prayed for an order quashing
notices issued to them by the concerned competent authorities under the Act
and a mandamus directing the respondents not to implement the provisions
thereof against them.

Dismissing the petitions and upholding the constitutional validity save and
except section 27(1) by a majority of 4:1 (A.P. Son, J. partially dissenting on
tho validity of sub-sections (I), (2), (3) and tho opening words of sub-section
(4) of aection 23), tho Court. If
HELD: Per majority: (Y.V. Chandrachud, C.J., P.N. Bhapati, V.R,
Krishna I7cr a.nd an. Sen JJ; V.D, Tulzapurkar, J. dissentins)·
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
3. Section 11(6) of the Urban Land (Ceiling and Regulation) Act, 1976
which provides that the amount payable under sub-section (1) or sub-section
(5) of section 11 shall, in no cast', exceed two Iakhs of rupees is valid. The
amount thus payable, is not illusory and the provision is not confiscatory.
Rupees iwo lakhs is not like a farthing even if the excess land may be a
fortune. [879 F]

4. Section 23 of the Urf'>an Land (Ceiling and Regulation) Act is valid
and does not suffer from any constitutional infirn'ity. Sub-fection (~)of section
23 is the prepondering provision governing the disposal of excess vacant land
acquired under the Act. Though it is "subject to the provisions of sub-section
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,
G 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
H 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

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

4.7 No rules framed under section 46(1), which en1powers the Central
Government to make rules for carrying out the provisions of the Act, and the
disposal or distribution of excess vacant land can override the express provi-
~sions of section 23. Here, no rules have so far been framed. 907 C-DJ
E
4 8 No reliance can be made on the "Compendium of Guidt:lines·'
issued by the Central Government in the Ministry of Works and Housing under
the Act either. No doubt, the recommendations made by the 9th Conference
of State Ministers of Housing and Urban Development seek to furnish
improved guidelines but in the process reverse the priorities given in section 23
F in the matter of disposal or distribution of excess vacant land. Hence, the
priori ties given in section 23 and as have been snmmarised in para 3 of the
Note must prevail over the priorities indicated in the guidelines contained in
para 4 of the Note and the latter are of no avail. [907 F-G-H, 908 A-B]

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 D
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 E
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
F
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 E
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
F
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 G
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
H 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
A 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
B 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
E 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
F 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 H
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
A 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
D 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
E 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
H 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 A
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 B
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 F
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
G
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
H
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.

c I proceed to turn the focus only on three issues, namely, tbe
alleged artifbiality of 'family' as defined in s. 2 (f) of the Urban Land
(Ceiling and Regulation) Act, 1976 (for short, the Act), the invalidity
of s. 23 of the Act as discriminatory and, therefore, unconstitutional
and the invalidity of s. 11 (6) of the Act on the score that the
compensation offered is illusory and, therefore, violative of Art. 31
D (2) of the Constitution.

The legislation, as its title indicates, is obviously a measure for
inhipiting concentration of urban lands in the hands of a few persons
and fore quitetable distribution of such land to subserve the common
good. Article 39 (b) and (c) of the Constitution are directly
E 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
F 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,
G 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
H
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 A
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
D
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 E
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
A 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
B
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
H 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 A
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 F
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 G
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 H
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
A 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
B
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.

I have no doubt even the crude drafting of s. 23 (4) by the
unwanted 'subject to' will not whittle down the power, why the
obligation, to distribute vacant land, not according to personal, D
political or official fancy but strictly geared to the good set down in
Art. 39 (b) and (c)

The question of basic structure being breached cannot arise
when we examine vires of an ordinary legislation as distinguished E
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
A 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
B 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

The impugned enactment has its genesis in the resolutions
passed by eleven sponsoring States under Art. 252 (I) of the Consti-
tution. The State Legislatures of Andhra Pardesh, Gujarat,
Haryana, Himachal Pradesh, Karnataka, Maharashtra, Orissa, E
Punjab, Tripura, Uttar Pradesh and West Bengal considered it
desirable to have an uniform legislation enacted by Parliament for
the imposition of ceiling on urban property for the country as a whole
and as required by the first part of Art. 252 (!) of the Constitution
passed a resolution to that effete!. Parliament accordingly enacted
the Urban Land (Ceiling and Regulation) Act, 1976. It received the F
assent of the President on February 17, 1976 and, in the first insta-
nce, ii come into force on that day in all the Union Territories and
the 11 States which had passed the requisite resolution under the
first part of Art. 252 (1). Subsequently, the Act was adopted, by
passing resolutions. under the second part of Art. 252 (I) by the State G
Legislatures of Rajasthan on March 9, 1976, Manipur on March 12,
1976, Assam on March 25, 1976, Bihar on April I, 1976, Meghalaya
on April 7, 1976 and Madb.ya Pradesh on September 9, 1976. Thus,
the enactment is in force in 17 States and all the Union Territories
in the country. It seeks to impose ceiling on vacant lands in urban
agglomerations having a population of two lakhs or more and for H
that purpose classifies such urban agglomerations in various cities
and towns in all the State and Union Territories into four categories
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

of both the articles, Art. 3 IB and 31 C as it stood prior to its amend-
ment by the Constitution (Forty-second Amendment) Act, 1976. A

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 D
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 E
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
A 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
B 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
E 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
F 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
G 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
H
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
A 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
D 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
E 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
F 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
G 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
H 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

wealth (urban vacant land) in the hands of a family having major
sons in it as compared to the family having minor children. In the A
illustration given above a family of a father with four major sons is
allowed to retain with itself 2,500 sq. metres of vacant land while
a family of a father mother and three minor sons is permitted to
retain only 500 sq. metres. The position becomes more glaring if I
take the illustration of a Joint Hindu Family consisting of five B
brothers, each having five major sons, as, in such a case the said
Joint Hindu Family will be entitled to retain 15,000 sq. metres of
vocant land as against 500 sq. metres permitted to be retained by
the artificial family. It cannot be said that large joint Hindu familis
are unknown in urban agglomerations in various cities and
towns of the country and instances more glaring than the preceding c
illustration could be multiplied. In other words, by adopting
the artificial defintion of 'family' and double standard for
fixing the ceiling area the Act enables unwarranted and unjustified
concentration of wealth in the hands of few rather than preventing
the same and this certainly would be in teeth of and not in D
furtherance of the directive principle of Art. 39(c); in fact, it is a
negation of that principle. It is not possible to take the view that
the Parliament out of inadvertance ignored joint Hindu Family or
forgot the possible concentration of vacant land in the hands of
major members of large joint Hindu families, because in another
context the concept of Joint Hindu Family was present to the mind E
of the draftsman as is clear from s. 4(7) of the Act. In my view,
therefore, the adoption of the artificial definition of 'family' and
double standard for fixing ceiling area one for a family with minor
cbildern and another for a family with major children and completely
ignoring the concept of Joint Hindu Family in relation to prescrip-
F
tion of ceiling area clearly lead to results which run counter to the
directive principle contained in Art. 39(c) of the Constition. The Act
which contains such provision being in teeth of that directive
principle must fall outside the pale of protective umbrella of Art.
31C. G
Re : s.23 relating to disposal of excess vacant land acquired
under the Act.

Jt may be stated that under s.6 every person holding vacant
land in excess of the ceiling limit at the commencement of the Act is
required to file within the period prescribed a statement before the
QOmpetent ~uthority havin11 jurisdiction ~ivin~ full particulars thereof
900 SUPREME COURT REPORTS [1985] SUPPL. s.c.R.

and also specifying the vacant land within the ceiling limit which he
A •
desires to retain. Sections 8 and 9 provide for preparation of draft
statement as regards vacant land held in excess of the ceiling limit,
holding of an inquiry in that behalf and preparation of final state·
ment and service thereof on the concerned person by the competent
authority, Section I 0 provides for acquisition of excess vacant land
by the concerned State Government and determination of claims of
8
all persons interested in such excess vacant-land and under sub·s.(3)
it is provided that upon the publication of a notification in that
behalf such excess vacant land as may be specified therein shall be
deemed to have been acquired by the State Government and the
same shall vest absolutely in the State Government free from all
c encumbrances with effect from the date specified in the notification.
Then comes s.23 which deals with disposal of such excess vacant
land acquired by the State Government under the Act. It runs as
follows:

"23. (1) It shall be competent for the State Govern-
D ment to allot, by order, in excess of the ceiling limit, any
vacant land, which is deemed to have been acquired by
the State Government under this act or is acquired by the
State Government under any other law, to any person for
any purpose relating to, or in connection with, any
E industry or for providing residential accommodation of
such type as may be approved by the State Government
to the employees of any industry and it shall he lawful
for such person to hold such land in excess of the ceiling
limit.
F
Explanalion,.-For the purposes of this section,-

(a) Where any land with a building has been acquired
by the State Government under any other law and
such building bas been subsequently demolished by
G State Government, then, such land shall be deemed
to be vacant land acquired under such other law;

(b) "industry" means any business, profession, trade,
undertaking or m rnufacture.
H
(c) In making an order of allotment under wb-section (I),
\be S\ate Government may impose such cQtJditions
Mss BlllM SINOll Ii. UNION (Tulzapurkur, J.) 901

as may be specified therein including a condition
as to the period within which the industry shall
be put in operation or, as the case may be, the
residential accommodation shall be provided for :

Provided that if, on a representation made in
this behalf by the allottee, the State Government is B
satisfied that the allottee could not put the industry
in operation, or provide the residential accommoda-
tion, within the period specified in the order of
allotment, for any good and sufficient reason, the
State Government may extend such period to such
further period or periods as it may deem fit.
c
(3) Where any condition imposed in an order of
allotment is not complied with by the allottee, the State
Government shall, after giving an opportunity to the
allottee to be heard in the matter, cancel the allotment D
with effect from the date of the non-compliance of such
condition and the land allotted shall revest in the State
Government free from all encumbrances.

(4) Subject to the provisions of sub-sections (I), (2)
E
and (3), all vacant lands deemed to have been acquired
by the State Government under this Act shall bo disposed
of by the State Government to subserve the common
good on such terms and conditions as the State Govern-
ment may deem fit to impose.
F
(5) Notwithstanding anything contained in sub·
sections (I) to (4), where the State Government is
satisfied that it is neces>ary to retain or reserve any vacant
land, deemed to have been acquired by that Government
under this Act, for the benefit of the public, it shall be G
competent for the State Government to retain or reserve
such land for the same."

Five or six aspocts or peculiar features emerge clearly from the
H
provisions contained ins. 23 in the context of the entire Act. In the
first place unlike agrarian ceiling which deals with land as means of
production, urban ceiling under the impugned Act deals with vacant
902 StlPRBMi! CoURT REPORTS (i98S) SUPPL. s.c.i.

land in urban agglomerations not as a means of production but as a
A part of the holder's wealth or capital asset. Secondly, unlike
agrarian ceiling which has the objective of distributing surplus agri-
cultural land straightway among landless persons, under the
impugned Act excess vacant land in urban agglomerations is acquired
by and vests in the State to be disposed of as indicated in the section;
B clearly a legislation in exercise of the State's power of eminent domain
(i.e. power of compulsory acquisition of private property). Thirdly,
such excess vacant land thus acquired is to be disposed of by the
State Government "for any purpose relating to or connected with
industry or for providing residential accommodation to the employees
of any Industry". Fourthly, under cl. (b) of the Explanation,
c 'industry' bas been very widely defined for the purposes of this
section to mean any business, profession, trade, undertaking or
manufacture; the word 'any' clearly suggests that business, profession,
trade, undertaking or manufacture even in private sector is included.
Fithly. sub-s. (I) confers absolute power and discretion on the State
D Government to allot any amount of such excess vacant land to any
person for any industry. Reading the fourth and fifth aspects
together, it is clear that it is open to the State Government to allot
any extent of such excess vacant land to any professional person, say
a lawyer a medical practioner or even an astrologer for the purpose
of carrying on his private profession. Sixthly, the section contemp-
E lates utilisation of such excess vacant land by the Stele Government
in three ways: (a) allotment for industry (b) allotment to subserve the
common good and (c) retention or reservation for the benefit of the
public, but, the priorities in the matter of disposal or distrbution of
such excess vacant land have boen peculiarly fixed in the section these
F priorities, as indicated in sub·SS. (1) and (4), are:=(i) allotment for
the purpose of an industry, namely any business, profession, under-
t king trade or manufacture, (ii) allotment for the purpose of
construction of houses for the employees of an industry specified in
item (i) above and (iii) disposal to subserve the common good which
would include allotment of vacant land for governmental purpose or
G local authorities or for institutions etc. In other words, it is after
the disposal of such excess vacant land for items (i) and (ii) above
that the balance thereof can be disposed of "to subserve the common
good" which means private purposes have precedence over public
purposes, and this is clear from the fact that disposal under sub-s. (4)
H is "subject to" the prior disposal under sub-s. (I) for purposes of
industry. In fact, disposal of excess vacant land for subserving the
common good is last in the priorities Sub. s (5) undoubtedly has an
MSS BRIM SINGH v. UNION (Tu/zapurkar, J.) 903

overriding effect over sub·ss. (I) to (4) but that provision deals not
with disposal or distribution of excess vacant land but with retention A
and reservation of such vacant land by State Government for the
benefit of the public like social housing and provision for basic
arenities etc.

Having regard to the aforesaid peculiar _feature~ that energe B
from a consideration of the provisions contained in s.23, counsel for
the petitioners contended that the acquisition of excess vacant land
in urban agglomerations cannot be said for a public purpose at all
and hence the ehactment which is primarily for compulsory
acquisition of private property runs counter to a valid exercise of the
State's power of 'eminent domain'. He pointed out that no scheme c
for any industrial development for any urban aggloneration has been
indicated in the Act, nor any such scheme seems to have been pre-
pared by any State Government or even by the Union Government
before undertaking the legislative measure in hand and no definite
public purpose of industrialisation with any plan or blue print with
D
set specifications or standards seems to have been within the contem·
plation of the sponsoring States or the Union Government; at any
rate no material in that behalf has been placed on record before the
Court and, therefore, according to counsel, compulsory acquisition
of all exces~ vacant land in all urban agglomerations throughout the
Union Territories and the 17 States of the country for achieving a B
bald, indefinite and unspecified objective of an 'industry' would not
be a valid exercise of the power of eminent domain. Alternatively,
counsel contended that even if it were assumed for the purpose of
argument that a bald, indefinite and unspecified objective of 'industry'
is a public purpose, when that concept of 'industry' is widely defined
so as to include any business, trade or profession in privare sector, F
the purpose 'beds its character as a real public purpose, which posi·
tion is further componded by the priorities laid down in the section
and the acquisition becomes acquisition for private purpose amount·
ing to an invalid exercise of the States's power of eminent domain.
Counsel, therefore, urged thats. 23 flagrantly violates Art. 31 (2) and G
is, therefore, ultra vires and unconstitutional and since it is a pivotal
provision having an impact on the entire Ceiling scheme and at the
same a non-severable provision from the rest of the provisions
contained in that chapter, the whole of Chapter III must fall with it.
H

Article 31 of tlic Constitution has more than one facet, it
undoubtedly confers upon individuals (including non-citizens) and
904 SUPREME touin REPORTS (198$j SUPPL. s,t.R.

corporate bodies a fundamental right to property but because of
A
conflict of views in Keshavanada Bharati's case (supra) it may be
debatable whether that right forms part of basic structure or not, but
that apart, Art. 31 incorporates in our Constitution the concept of
State's power of eminent domain i. e. power of compulsory acquisition
of private property and prescribes two conditions precedent to the
B exercise of the power, namely, (i) such acquisition cannot be except
for a public purpose and (ii) it must be on payment of compensation
(now termed 'amount') to the claimant having interest in the
propaty. In Kameshwar Sing h's(') case this position has been clarifie
where Mahajan, J., after referring to some authoritative books has
summed up the definition of the concept in one sentence thus·
c "Authority is universal in support of the amplified definition of
'eminent domain' as the power of the sovereign to take property for
public use without the owner's consent upon making just compensa-
tion," The requirement of just compensation under the latter
condition is diluted to payment of non-illusory amount under the
D 25th Amendment of the Constitution and subsequent decisions of
this Court. But it is well settled that these two conditions precedent
are sine qua non for the exercise of the State's power of eminent
domain' and, in my view, represent those aspects of the right to
property under Art. 31 which constitute the essential or basic features
of our Constitution and for that matter these would be so of any
E democratic constitutiQn and, therefore, any law authorising expropria-
tion of private property in breach of any one of 1hose condit10ns
would damage or destroy the basic structure of our constitution.

It is extremely doubtful whether a bald, indefinite and unspeci-
f fied objective like 'industry' simpliciter without any attempt at
dovetailing it by having a proper scheme for industrial development
will constitute a valid public purpose for the exercise of the power
of 'eminent domain'. It is because of the absence of any definite
scheme for industrial development with plans or blue prints with set
G specifications or standarads for any of the urban agglomerations that
wide power has been conferred on the State Government under
sub-s. (1) in vague terms to allot any extent of such excess vacant
land to any person for any industry. I am conscious that in
Kameshwar Singh's case (supra) this Court speaking through
M1hajan, J,, observed that "the phrase 'public purpose' has to be
H

(I) [1952]3 SCR 889
Mss BIHM SINGH v. UNION (Tulzapurkar, J.) 905

construed according to the spirit of times in which the particular
legislation is enacted" and held that so construed, acquisition of A
estates for the purpose of preventing the concentration of huge
blocks of land in the hands of a few individuals and to do away with
intermediaries was for a public purpose. But that case dealt with
three statutes (the Bihar Land Reforns Act, 1950, the M. P. Aboli·
tion of proprietary Rights Act, 1950 and the U. P. Zamindari B
Abolition and Land Reforms Act, 1950), the common aim of which,
generally speaking, was to abolish zamindaries and other proprietary
estates and tenures in the three States, so as to eliminate the inter·
mediaries by means of compulsory acquisition of their rights and
interests and to bring the raiyats and other occupants of lands in
those areas into direct relation with the Government and therefore, c
that case is distinguishable and its ratio would not apply to the
instant case where the purpose of acquistition of excess vacant (urban)
land is a bald objective like 'industry· simpliciter, surely different
considerations would apply. In my view it is extremely doubtful
whether compulsory acquisition of all the excess vacant land in all
0
urban agglomerations throughout the country for a bald, indefinite
and unspecified objective like 'industry' simpliciter would be a valid
exercise of the power of 'eminent domain'. ·However, it is not necessary
for me to decide this larger question inasmuch as in my view the
alternative submission of counsel for the petitioners clinches the
issue in this case. Assuming that a bald objective of 'industry' E
simpliciter partakes of the character of a public purpose, what Parlia·
ment intended by the said objective bas been expressly clarified by cl.
(b) of the Explanation where 'industry' has been very widely defined
so as to include any business, trade or profession in private sector
which makes a mockery of such public purpose. Whatever be the
merits or demerits of a wide definition of 'industry' for the purposes F
of industrial-cum-labour relations, adoption of such wide definition
of the concept in the context of eminent domain is clearly suicidal.
By adopting such definition for the purposes of s. 23 the State
Government has been empowered under sub·s. (I) to allot any extent
of such excess vacant land to any businessman, trader or professional G
man like a lawyer, doctor and astrologer to enable him to carry on
his private business, trade or profession. In other words, acquisition
of excess vacant land in urban agglomeration would clearly be for
private purposes and what is worse is that under the priorities laid
down such private purposes are to be catered to first and then comes H
the disposal or distribution thereof to subserve common good. This
clearly smacks of depriving peter of his property to give it to Paul
9()6 SUPRiiMB cOURT REPORTS [19s5j SUPPL. s.c.a.
and, therefore, clearly amounts to an invalid exercise of State's power
A of 'eminent domain'. Section 23, which thus authorises compulsory
acquisitions of property for private purposes flagrantly violates those
aspects of Art. 31 which constitute the essential or basic features of
the Constitution and is, therefore, ultra vires and unconstitutional.
Further, indisputeably it is the most vital, integral and non-severable
B 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.

c Apart from the unconstitutionality of s.23 as indicated above,
it is clear that the wide definition of 'industry' and the priorities for
disposal or distribution of excess vacant land laid down therein have
adverse impact on the directive principle contained in Art.39(b'.
In the first place instead of confining the objective of industrialisa-
tion to public sector or cooperative sector and the like where benefit
D
to community or public at large would be the sole consideration, the
concept is widely defined to include any business, trade or profession
in private sector which enables the disposal or distribution of excess
vacant land for private purposes and sub-s.( I) authorises the State
Government to allot any extent of such land to individuals or bodies
E for private purposes. Secondly, the priorities in the matter of
disposal or distribution of the excess vacant land under sub-sections
(!) and (4) are as indicated above, which show that disposal or
distribution of excess vacant land for subserving the common good
comes last in the priorities. I have already indicated that the postu-
late underlying the directive principle of Art. 39(b) is that diffusion of
F ownership and control of the meterial resources of the community is
always in the public interest and, therefore, the State is directed to
ensure such distribution (equitable) thereof as best to subserve the
common good but the priorities prescribed in sub-ss. (!)and (4) of
s.23 in regard to distribution of material resource produce contrary
G results or results in the opposite direction inasmuch as private pur-
poses receive precedence over common good. The enactment which
contains such provisions that produce contra resultes cannot be said
to be in furtherance of the directive principle of Art.39(b) and cannot
receive the benefit of the protective umre!la of Art. 31C.
H
Counsel for the respondents, however, relied upon three aspects
to counter-act the aforesaid. result flowing from the priorities
MSS BH!M SINGH v. UNION (Tuizapurkar, i.) 907
given in s. 23(1) and (4). It was urged that the disposal of
excess vacant land acquired by the State under the Act will be A
guided by the Preamble which says that enactment was put on the
Statute Book with a view to bringing abou! the equitable distribution
of land in urban agglomerations to subserve the common good. In
the first place, it is well settled that it is only when there is some
ambiguity in test of any provision in the enactment that the preamble
B
could be looked at and here there is no ambiguity whatsoever in
s 23, I) and (4). Secondly, far from there being any ambiguity there
is express provision in s.23(1) and (4) indicating the priorities in the
matter of disposal or distribution of excess vacant land, in face of
which, the preamble cannot control, guide or direct the disposal or
distribution in any other manner. Next, reliance was placed on c
s. 46( I) which empowers the Central Government to make rules for
carrying out the prosisions of the Act and the disposal or distribution
of excess vacant land could be prescribed by rules. It may, however
be stated that no rules under s.46 have so far been framed by the
Central Government and, in any event, no rules framed thereunder
can over-ride the express provisions of s.23. Lastly, reliance was D
placed on certain guidelines issued by the Central Government in its
Ministry of Works and Housing under the Act and at page 83 of the
"Compendium of Guidelines" (a Govt. of India publication dated
February 22, 1917) a note containing guidelines on utilization of
excess vacant land acquired under the Act is published. Paragraphs E
3 and 4 of the said Note deal with the topic of priorities. In para
3 the disposal or distribution of excess vacant land as per the prio-
rities ins. 23 bas been set out (which are the same as given above)
while para 4 sets out the priorities in accordance with the recomme-
ndations m1de by the 9th Conference of State Ministers of Housing
and Urban D'velopment held at Calcutta on the 17th, 18th and F
19th December, 1976, which considered the matter and the priorities
indicated are: (i) Retention.lreservation for the 'benefit of the
Public' like social housing, provision of basic amenities, etc. (ii)
Disposal 'to subserve common good' which may include allotment
of vacant land for Government purposes, local authorities, institu- G
tions' etc. (iii) Allotment fot the purpose of construction of houses
for the employees of industries specified in item (iv) A below (v)
Allotment for the purpose of industry, viz., any business, profession
trade, undertaking of non-polluting manufacture; cottage and small
scale and wherever possible ancillary industry; manufacture. It will
appear clear that the recommendations made by the 9th Conference of H
State Ministers of Housing and Urban Douelopment seek to furnish
908 SUPREME COURT REPORTS (1985] SUPPL. s.c.1\.

improved guidelines but in the process reverse the priorities given
A in the section in the matter of disposal or distribution of excess
vacant land. It is obvious that the priorities given in s. 23 and as
have been summarised in para 3 of the Note must prevail over the
priorities indicated in the guidelines contained in para 4 of the Note
and the latter are of no avail. It is thus clear that the priori·
n ties as given ins. 23(1l and (4) in the matter of disposal or distributi·
on of excess vacant land acquired under the Act run counter to and
in a sense operate to negate the directive principle of Art. 39(b).

It was then faintly argued by counsel for the respondents that
c the law in order to receive the protection of Art. 31C need not fulfil
the objectives of both Art. 39(b) and (c) and even if it fulfils the
objective under Art.39;c) and not under Art. 39(b) it will be protect·
ed by Art. 31 C. But here s. 23 by no stretch deals with the objective
of Art. 39(c) at all but only deals with the objective underlying the
directive principle of Art. 39(b) and its provisions as discussed above
D
clearly run counter to that objective and as such the enactment
which contains such provisions must forfeit the benefit of the
protective umbrella of Art. 31C.

E Faced with the situation that the constitutional invalidity of
s. 23 was likely to have advarse reprccussion not only on Chapter III
in which it occurs but also on the entire Act, counsel for the respon-
dents made a valiant effort to salvage the said section by indulging
in interpretative acrobatics with a view to relieve it from the two
vices attaching to it, namely, (ii the adoption of the wide definition
F
of 'industry' in cl. (b) of the Explanation which makes a mockery of
the Public purpose indicated by the bald objective like 'industry'
simpliciter and (ii I the priorities mentioned therein governing the
disposal or distribution of excess vacant land acquired under the Act.
It was suggested that the definition of 'industry' should be read down
G by the court so as to confine the same to industries in public sector
or co-operative 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 ent erpreneurs
for private purposes which runs counter to the doctrine of eminent
H domain would be completely eschewed. It is impossible to read down
the difinition in the manner suggested because parliament has for the
purposes of the section (i.e. for purposes of disposal or distribution
MSS BHIM SINGH '· UNION (Tulzapurkar, J.) 909

of such excess vacant land) deliberately and in express terms adopted
a vary wide definition which includes within its scope not merely A
trading or manufacturing activity but also any business or profession
in private sector and reading down the definition as suggested would
be doing violence to the Parliament's intention stated in express terms.
It was then submitted that sub·s. ( 1) of s. 23 should be construed as
an enabling provision which merely permits the State Government
B
to allot exces; vacant land for the purposes of industry,
while the real obligation in th, matter of disposal of excess vacant
land arises under sub-s. (4) which speaks of disposal of such land
"to subserve the common good"; in other words, the disposal under
sub-s. (4) should over-ride the disposal under sub-s. (I); at any rate
the "common good" spoken of in sub-s. (4) should permeate the c
disposal under sub-s. (!). It is impossible to read sub-s. (I) of
s.23 as containing merely an enabling provision; the scheme of
sub-ss. (I) and (4) read together clearly shows that the disposal of the
excess vacant land is first to be done under sub-s.(I) and disposal
under sub-s.(4) comes thereafter. The opening words of sub·s.(4)
"subject to sub-ss.( I), (2) and (3)" cannot be read aHonstituting D
a non obstante clause giving an over-riding effect to sub·s. (4) nor can
sub-s.(4) be read as if the opening words were absent. By indulging
in such interpretative acrobatics the Court cannot reach the opposite
result than is warranted by the plain text of the provision. Further,
to say that every disposal of excess vacant land under sub-s.(1) must E
be for "common good" is to read into that sub-section something
which is not there; it amounts to re-writing that sub-section, which
cannot be done. the Preamble notwithstanding. ft is the conferal of
such unrestricted power (not its oblique exercise) that is being attacked
and hence the submission to read into sub·s.(I) this kind of limita·
tion. These submissions require the re-structuring of the entire section F
a function legitimately falling within the domain of the Legislature.
Moreover, sub-ss.(1), (2). (3) and (4) of s.23 are integral parts of one
whole scheme dealing with disposal of excess vacant land acquired
-l.
under the Act and as such cannot be severed from one another. The
attempt to salvage s.23, either wholly or in part, by seeking to free G
it from the two vices must, therefore, fail.

The next provision challenged by the petitioners as being
viol~tive of !.heir fundamental rights is s. 11 (6) which puts the H
maximum hm1t of Rs. two lakhs on compensation (called 'amount')
payable to the holder of excess vacant land irrespective of the extent
of such excess vac&nt Jan<!. f'or the purpose of determining the
910 SUPREME COURT REPORTS [1985) SUPPL. s.c.R.

quantum of compensation s.11 (I) divides vacant land in urban
A agglomerations into two categories -(i) vacant land from which
income is derived and (ii) vacant land from which no income is
derived and in regard to the former category cl, (a) of sub-s. (I) fixes
the quantum payable at an amount equal to eight and one third
times the net average annual income actually derived from such land
B during the period of five consecutive years immediately preceding
the date of publication of the notification issued under s. 10 (I) and
the net average annual income is to be calculated in the manner and
in accordance with the principles set out in Schedule 11, while in
respect of the latter category, cl. (b) of sub·s. (I) fixes the quantum
payable at an amount calculated at a rate not exceeding-(i) Rs. I 0
c per sq. metre in the case of vacant land situated in urban agglomera-
tions falling with categories A and Band (ii) Rs. 5 per sq. metre in
the case of vacant land situated in urban agglomerations falling
within categories C and D. In other words, for vacant land yielding
income the method of capitalisation of the income for certain
number of years is adopted while for vacant land yielding no income
D maximum rates of compensation for A and B categories at Rs. I 0
per sq. metre and for C and D categories at Rs 5 per sq. metre
have been fixed. Compensation (called 'amount') once determined is
payable to the bolder under s. 14 (2) in a certain manner, namely,
25% there of will be paid in cash and the balance 75% in negotiable
E bonds redeemable after expiry of 20 years carrying interest at 5% per
annum. Section II (6) which puts the maximum limit of two lakhs
on the quantum payable in respect of excess vacant land acquired
under the Act runs thus:

F "II (6)- Notwithstanding anything contained in
sub-section (I) or sub·section (5) the amount payble
under either of the said sub-sections shall, in no case,
exceed two lakhs of rupees."

G Counsel for the petitioners contended that s. 11 (6) which puts
the maximum limit of Rs. two lakhs on the amount payable to a
claimant irrespective of the extent of the excess vacant land acquired
under the Act is not only arbitrary but also results in illusory
payment and violates Arts. 14 and 31 (2) respectively. Counsel
H
pointed out that a person holding excess vacant land which at the
prescribed rates is of the value of Rs. two lakhs and a person hold·
ing such excess vacant land which ~~n at tb,e same prescribed rates
MSS BHlM SINGH v. UNION (Tulzapurkar, J.) 911

is of the value of Rs. two crores are treated alike, that is to say, both
will get compensation (termed 'amount') of Rs. two lakhs only and A
is this sense prescribing a limit of maximum of Rs. two lakhs is
clearly arbitrary And violates Art. 14. Similarly, for a person who
holds excess vacant land which even at the prescribed rates it of the
value of Rs. two crores a payment of Rs. two lakhs only (i.e. 1/IOOth
of the value at the prescribed rates) must, by any standard, be B
regarded as illusory and, therefore, the fixation of maximum limit at
Rs. two lakhs under s. 11(6) irrespective of the extent of excess
vacant land held by a person violates Art. 31(2) of the Contitution.
I find considerable force in both the submissions of counsel for the
petitioners. In fact, in my view, this provision which puts the
maximum limit of Rs. two lakhs on the amount payable to a holder c
of excess vacant land acquired under the Act irrespective of the
extent of such excess vacant land held by him is not merely violative
of Arts. 14 and 31(2) of the Constitution in the manner indicated
above, but would be a piece of confiscatory legislation, because
vacant land in excess of that portion which at the prescribed rates
D
is worth Rs. two lakhs stands confiscated to the State without any
payment whatsoever. I do not suggest that a provision putting a
maximun limit upon compensation payable to the owner or holder
irrespective of the extent of the property acquired whenever or
wherever is found in any enactment has to be regarded as a confisca·
tory provision. I am aware that in enactments involving large E
schemes of social engineering like abolition of Zamindaris, agrarian
reforms, nationalisation of undertakings and businesses and the like,
such a pcovision might be justifiably made. In State of Kera/a v. The
Gwalior Rayon Silk Mfg. Co. Ltd., (') this Court upheld the validity
of Kerala Private Forest (Vesting and Assignment) Act, 1971 wbere-
under private forest lands held on janman right were acquired
without payment of any compensation on the ground that such
acquisition was for implementing a scheme of agrarian reform by
assigning lands on registry or by way of lease to poorer sections of the
rural agricultural population, the enactment being protected under
Art. 31A (I) of the Constitution. Again the Coal Mines (Nationalisa- G
tion Act, 1973 whereunder the right, title and interest of the
owneres in relation to their coal mines specified in the schedule to
the Act stood tranrferred to and became vested absolutely in the
Central Govt. free from encumbrances in exchange of payment of
fixed amounts specified in that schedule was upheld by this Court.
H

(l) [1974) I S.<;,lt, 671,
~
l-

912 SUPREME COURT REPORTS (1985) SUPPL. S.C.R.

A
But such cases involving large schemes of social engineering where
avowedly the 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 Government to allot properties acquired under the
B 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
domain, such a provisjon of putting a maximum limit on compensa-
tion payable in respect of the acquired property irrespective of its
extent will have to be regarded as confhcatory in nature.
c
An instance in point is available on the record of these writ
petitions. In writ petition No. 350 of 1977 the petitioner who
happens to be the ex-Ruler of the fonmr Kota State has averred in ' .
paragraphs 17 and 20 of the petition that the urban vacant land
D owned and possessed by him in the city of K"t1 admeasures 918. 26
acres and that the A;sistant Director, Lands and Buildings Tax,
Kola in his assessment order d1ted 20.12. 1976 had valued the same
at market rate of Rs. 15.12 per sq. metre at Rs 3,98,05021.84
(say about Rs. four crores) and inclusive of other items of properties
E the total value was put down at Rs. 4.12 crores and these averments
are substantially admitted in the counter-affidavit fikd by S. Mahadeva
Iyer on behalf of the Union of India where in para 9 he has stated
thus:

"In reply to para 20 of the writ petition I submit tha<
F
the total assessment of the entire property comes to
Rs. 4.56 crores."

In other words, in the case of this petitiorer the fact that he owns -A-
G urban vacant land of the value of about Rs. four crores in the city of
Kota stands admitted. Now, under s. 11(6) for all this urban vacant
land worth nearly Rs. four crores the petitioner will get only rupees
two lakhs, it works out to a princely sum of eight annas for property
worth Rs. 100, which would clearly be an illusory payment. In fact,
H all his vacant land. in excess of that portion which is wroth Rs. two
lakhs at the prescribed rates, shall stand conficated without any pay-
ment whatsoever. Such a glaring instance, availabk on the record
of these petitions, brings out in bold relief how 6agrantly s, I 1(6)
MSS BH!M SINGH v. UNION (Tulzapurkar, J.) 913

violates Arts. 14 and. 31 (2) of the Constitution; it hightlights the
, '. aspect that such acquisition takes place in breach of the other A
condition precedent attaching to the power of eminent domain
namely, payment of non·illusory compensation. However, s. 11(6) is
clearly a severable provision, and that alone is liable to be struck
down a' being ultra vires and unconstitutional.
B
The next provision challenged by the petitioners is s. 27
occurring in Chapter IV to the extent to which it imposes restriction
on transfer of an urban land with building or a flat therein though
unconcerned or unconnected with the excess vacant land as unconst·
tutional being beyond the legislative authorisation as also violative
of petitioners' fundamental rights under Arts 14 and 19(1) (f). C
Section 27, as its marginal note indicates, deals with the subject of
prohibition of transfer of urban property and sub-s. (I) thereof runs
thus :

"27. (I) Notwithstanding any thing contained in any D
other law for the time being in force, but subject to the
provisions of sub-section (3) of section 5 and sub-section
(4) of section 10, no person shall transfer by way of sale,
mortgage, gift, lease for a period exceeding ten years,
or otherwise, any urban or urbanisable land with a build· E
ing (whether constr11cted before or after the commence-
ment of this Act) or a portion only of such building for a
period of ten years of such commencement or from the
date on which the building is constructed, whichever is
later, except with the previous permission in writing of
the competent authority."

Inter alia, the aforesaid provision is clearly applicable to a building
v'
or a portion of such building which would include a flat therein
standing on any urban or urbanisable land falling within the per-
missible ceiling area which a holder of a vacant land is entitled to G
retain with himself and under thi, provision any transfer of such
property by way of sale, mortage, gift or lease for ten years or other·
wise, is prohibited for the period of ten years from the commencment
of the Act except with the previous permission in writing of the
competent authority. Under sub-s. (2) if the holder of such property H
falling within the permissible ceiling area is desirous of effecting a
transfer of the type indicated above has to apply in writing for per·
mission from the competent authority and under sub•s, (3) the
914 SUPREME COURT REPORTS (1985] SUPPL. s.c.R.

competent autority bas been authorised after making such inquiry as
A it deems fit to grant the permission or refuse the same, but a refusal "'f -...

bas to be accompained by written reasons, copy whereof is to be
furnished to the holder. Sub-s. (4) provides that if within sixty days
of ihe receipt of the application refusal is not communicated, the
permission shall be deemed to have been granted by the competent
B authority.

Counsel for the petitioners made two submissions in regard to
aforesaid restriction as made applicable to transfers of built-up
properties that fall within the limits of ceiling area permitted to be
retained by a holder. Firstly, such restriction would be outside the
c legislative authorisation conferred upon the Parliament as well as
beyond the ambit and scope of the Act which bas assiduously kept
built-up properties outside the pale of imposition of ceiling. Secondly,
such restrictiou requiring permission from the competent authority is
arbitrary and violative of Art. 14 in as much as the power to grant '
D the permission or to refuse it is unguided and untrammelled which is
bound to produce arbitrary results. In my view both the submissions
have substance in them.

It cannot be disputed that though the authorisation was for
E imposition of cdling on urban immovabfo 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 parts thereof (including flats therein) standing on urban
land falling within the permissible ceiling area would be outside the
F purview of the Act. It was urged for the respondents that such a
provision would be incidental or ancilliary to the ceiling contemplated
by the Act and would fall within the phrase "for matters connected
therewith" occurring in the Preamble and the long title of the Act. v

If is not possible to accept the contention, for, the words "matters
connected therewith" occurring in the concerned phrase must be
G
co-related to what precedes that phrase, namely, "an Act to provide
for 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 on such land" (emphasis supplied) and, therefore, the
H words "matters connected thaewith" must mean matters in relation
to the ceiling imposed by the Act. A reference to objective under
Art. 39(b) and (c) (for the achievement of which the enactment is
(lllegedly taken in hand) in the Pre11mble or lonll title cannot enlarge
MSS BHIM SINGH v. UNION (Tulzapurkar, J.) 915

the ambit or scope of the Act. Any restriction imposed on built-up
•• properties falling within the permissible ceiling area left with the
bolder would, therefore, be outside the ambit and scope of the
Act.

The next question is whether the restriction which requires the
holder of such property to seek permission of the competent authority B
before effecting any transfer thereof by way of sale, mortgage or gift,
etc. is violative of Art. 14 of the Constitution. The contention is
that the requirement in the absence of any guidelines governing the
exercise of the power on the part of the competent authority in the
m1tter of granting or refusing to grant the permission is highly
arbitrary, productive of discriminatory results and, therefore, violates
c
the equality ·clause of Art. 14. Counsel for the respondents fairly
conceded that the section itself does not contain any guidelines but
urged that the objectives of "preventing concentration, speculation
and profiteering in urban land" recited in the Preamble would aford
the requisite guidance for the exercise of the power to grant the D
permission sought or to refuse the same. Firstly, which of the
three objectives mentioned in the Preamble should guide the exercise
of power by the competent authority in any given case is not clear
and in any case no standard bas been laid down for achieving the
objectives of preventing concentration, speculation, and profiteering E
in urban land or urban property and in the absence of any standard
being laid down by the Legislature-a purely legislative function, it
will be difficult to hold that these broad objectives recited in the Pre-
amble could effectively or adequately guide the exercise of power by
the competent authority in the matter of granting or refusing to grant
the permission and in the absence of guidelines the exercise of the F
power is bound to produce arbitrary or discriminatory results. It
was also said that against the order passed by the competent
authority under s. 27 an appeal to the Appellate Authority has been
provided for under s. 33 and revision lies to the State Government
under s. 34 and in view of such provision for appeal and revision the G
exercise of the power or discretion vested in the competent authority
cannot be regarded as unfettered or arbitrary. Here again I feel
that 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 achieving the objectives of prevention of concentra- H
tion, speculation and profiteering in urban land and urban property,
the provision for appeal and revision would not be r1f much avail to
preventin~ arbitrariness in the 1Datter of ~ranting or refusin$ to
916 SUPREME COUkT REPORTS [1985] SUPPL. S.C.R.

grant the permission. Section 27 which does not adequately contro1
A the arbitrary exerci'e of the power to grant or refuse the permission
sought, is clearly violative of Art. 14 of the Constitution and as
such the requirement of permission contained therein will have to be
struck down as being ultra vires and unconstitution.

B In the result, in view of the aforesaid disucssion. I would like
to indicate my conclusions thus :

(1). The impugned Act, though purporting to do so, does not,
in fact, further the directive principles in Art. 39 (b) and (c). Section
2(f) in relation to prescription of ceiling area, as shown above, per-
c mits unwarranted and unjustified concentration of wealth instead of
preventing the same and is in teeth of the objective under Art. 39(c);
similarly, s. 23, as discussed above, produces results contrary to the
objective under Art. 39(b). Therefore, the impugned A~t is outside
the pale of the protective umbrella of Art. 31 C,

D (2) Section 2(f) which contains the artificial definition of
'family' in relation to the prescription of ceiling area, s. 23 which
deals with disposal or distribution of excess vacant land acquired
under the Act as per priorities laid down therein and s. 11(6) which
puts a maximum limit on the quantum of the amount payable in
respect of excess Vacant land acquired from a holder irre:;pective of
E
the extent of area held by him these three provisions flagrantly violate
t110se aspects of Arts. 14 and 31 which constitute the essential and
basic features of onr Constitution and hence the protective umbrealla
of Art. 3!B is not available to the impugned Act inasmuch as the 40th
Constitution Amendment Act 1976 to the extrnt to which it inserts
F the impugued Act in the Ninth Schedule is beyond the
constituent power of the Parliament as the said Aemending Act has
the effect of damaging or destroying the basic structure of ithe
Constitution.

(3). The artificial definition of 'family' given in s. 2(f) in
G relation to prescription of ceiling area under s. 4(1) is clearly violative
of Art. 14 and as such is ultra vires and unconstitutional. Similarly,
s. 23 which authories compulsory acquisition of property for private
purposes is in breach of the doctrine of eminent domain and since it
flagrantly violates Art. 31 (2) i' ultra >'ires and unconstitutional.
H
(4), Since s. 2!f) together with adoption of double standard
for fixing ceiling area runs through and forms ba>is of the whole.
Chapter Ill ari<l Sir1ce s, 23 is a vital, lntel!ral and qoq·s~verable part
MSS Bii1M SIN'Gll v. UNION (tulzapurkar, J.) !H 1

of the entire scheme of urban ceiling en visaged by the Chapter III, the
whole of Chapter Ill has to fall along with those two provisions and A
••
as such that Chapter is also declared to be u/lra vires and
unconstitutional. Further, it cannot be disputed that Chapter III
comprises the substratum of the entire scheme of urban ceiling
contemplated by the enactment incorporating its main provisions
while the other Chapters deal with arcillary or incidental matters B
which from the decorative frills of the main fabric. Tf the substra-
tum is found to be diseased, invalid and bad in law the entire Act
has to go and is accordingly struck down as void and unconstitu·
ti on al.

(5). Section 11(6), a severable prov1S1on, being violative of
c
petitioners' fundamental right under Art. 31 is declared to be
ultra vires and unconstitutional.

(6). Section 27, being severable, is also declared ultra vires and
unconstitutional to the exent indicated above as being beyond the
D
ambit of the Act and violative of Art. 14 of the Constitution.

Before parting with the matter I would like to refer to the
manner in which this important and complicated measure came to be
E
enacted. It cannot be doubted that the 11 sponsoring State ·
Legislatures passed their resolutions under Art. 252( 1) with a laud·
able object, namely to clothe the Parliament with legislative
competence to enact a law for the imposition of ceiling on urban
immovable property for the country as a whole Though initially a
model bill based on the recommendations made by the Working F
Group in its Report dated July 25, 1970 had been prepared where
ceiling was proposed to be imposed on urban prope[ly on the basis
of monetary value, Parliament later on realised that the implementa-
tion of that proposal was beset with several practical difficulties
indicated in the Approach Paper prepared by a Study Group, and,
therefore, it was though that ceiling in respect of built-up properties G
should be brought about through some fiscal and other measures and
ceiling on vacant land in urban aqglomerations on the lines of the
impugned Act should be undertaken. In other words, State·wise
deep consideration and consultation for over five years had preceded
the preparation of the draft Bill and this Court in V.B. Chowdhari's(') II

(I) [1979] 3 SCR 808
9i8 SUPREME COURT REPORTS [1985} SUPPL. S.C.R.

case has upheld the legislative competence of Parliament to enact
A such a measure as a first step towards eventual imposition of ceiling
on immovable properties of every other description. However, after
the introduction of the Bill on the floor of the house on January
28, 1976, the enactment as drafted in its present form seems to have
been rushed through the attenuated Parliament during the Emer-
B gency in less than seven hours on February 2, 1976. The Lok Sabha
debates dearly show: (al that the Bill was moved and taken up for
consideration at 11.17 hours on that day, (b) that a motion moved
by a member that the Bill be circulated for the purpose of eliciting
opinion thereon by May IS, 1976 was negatived, (c) that another
motion supported by quite a few members that the Bill be referred to
c a Select Committee with a view to improve the same by 1removing
defects, deficiencies and omissions therein with instructions to the
Select Committee to 1eport by April I, 1976, was also negatived, (d)
that though over 150 amendments had been moved (some of which
were received by the members on the very day as speeches were in
D progress), an earuest request to postpone the second reading of the
Bill to the following day to enable the members to consider those
amendments (many of which were neither formal nor clarificatory
but of substance) was also turned down, and (e) that the original
time schedule of six hours fixed by the Speaker for the Bill was
adhered to and the entire process (including general discussion, clause
E by clause reading, consideration of the several amendments and the
third reading) was completed in undue haste by 18.0l hours. In
Rajya Sabha also a request to refer the Bill to a Select Committee
went unheaded and the entire process was completed in one day,
February 5, 1976. The result is tbat it has, in the absence of ade-
quate study or discussion about the implications of various provisions
F thereof, turned out to be an ill-conceived and ill-drafted measure.
The measure was, undoubtedly, taken in hand with a view to achieve
the unexceptional objectives underlying Art. 39,b) and (c), but as
shown above, the enacted provisions misfire and produce the opposite
G results and also damage or destroy the essential features or basic
structure of the Constitution and hence duty-bound I am constrained
to strike down this impugned piece of purported socio-economic
legislation. The legislative competence of the Parliament being still
there a ;well ·drafted enactment within the constitutoinal limitations
on the subject would be the proper remedy.
...
'
H
I would, therefore, allow the petitions and direct issuance of the
appropriate writs sought.
MSS BHIM SJNOH v. UNION (Sen, J.) 919

SEN J. These writ petitions under Article 32 of the Constitution
seek to challenge the constitutional validity of the Urban Land A
(Ceiling and Regulation) Act, 1976 on various grounds. The Act
has been placed as item NJ. 132 in the Ninth Schedule by the
Constitution (Fortieth Amendment) Act, 197r,. Questions involved
are of far-reaching importance affecting the national interest.
B
The history of the legislation is well-known. The State
Legislatures of eleven States, namely, all the Houses of the Legisla·
tures of the States of A11dhra Pradesh, Gujarat, Haryana, Himachal
Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar
Pradesh and West Bengal considered it desirable to have a uniform
Jegblation enacted by Parliament for the imposition of a ceiling on c
urban property in the country as a whole and in compliance with
clau&e (I} of Article 252 of the Constitution passed a resolution
to that effect. Parliament accordingly enacted the Urban Land
(Ceiling and Regulation) Act, 1976. In the fir,t instance, the Act,
came into force on the date of its introduction in the Lok Sabha, D
that is, January 28, 1976 and covered Union Territories and the
eleven States which had already passed the requisite Resolution
under Article 252(1) of the Constitution. Subsequently, the Act
was adopted, after passing resolutions under Article 252(1) of the
Constitution by the State of Assam on March 25, 1976, and those of
Bihar on April l, 1976, Madhya Pradesh on September 9, 1976, I
Manipur on March 12, 1976, Meghalaya on April 7, 1976 and
Rajasthan on March 9, 1976.Thus, the Act is in force in seventeen
States and all the Union Territories in the cou~try.

The legislative competence of Parliament to enact the F
Urban Land (Ceiling and Regulation) Act, 1976 having been
upheld by this Court in Union of India etc. v. Va//uri Basavaiah
Chaudhary,(') there remains the question of its constitutional
validity.
G
>
Sechedule I to the Act lists out all States, irrespective of
whether or not they have passed a resolution under Art. 252(1)
authorizing the Parliament to enact a law imposing a ceiling on
urban immovable property, and the urban agglomerations in them
having a population of two lacs or more. The ceiling limit of vacant H

(I) [1979] 3 SCR 802.
9~0 SUPREME COURT RBPORTs [1985) SUPPL. s.c.ll.

land of metropolitan areas of Delhi, Bombay, Calcutta and Madras
A having a population exceeding ten lacs falling under category 'A' is
500sq. metres; urban agglomerations with a population .of ten lacs and
above, excluding the four metropolitan areas falling under category
'B' is 1000 sq. metres; agglomerations with a population between
three lacs and ten lacs falling under category 'C' is 1500 sq. metres
and urban agglomerations with a population between two lacs and
B
three lacs falling under category 'D' is 2000 sq. metres. The
schedule does not mention the urban agglomertations having a popu-
lation of one lac and above; but if a particular state which passed a
resolution under Art. 252(1), or if a State which subsequently adopts
the Act, wants to extend the Act to such areas, it could do so by a
c notification under s.2(n) (B) or s.2 (n) (A) (ii), as the case may be,
after obtaining the previous approval of the Central Government.

The primary object and the purpose of the Urban Land (Ceiling
and Regulation) Act, 1976, 'the Act' as the long title and the pream-
D ble 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 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 bringing
E about an equitable distribution of land in urban agglomerations to
sub serve the common good, in furtherance of the Directive Principles
of State Policy under Art. 39(b) and (c).

The Statement, of objects and Reasons accompanying the Bill
F reads as follows :

"There has been a demand for imposing a ceiling on
urban property also, especially after the imposition of a
ceiling on agricultural lands by the State Governments.
G •
With the growth of population and increasing urbanisa•
tion, a need for orderly development of urban areas has
also been felt. It is, therefore, considered necessary to
take measures for exercising social control over the scarce
H resource of urban land with a view to ensuring its
equitable distribution amongst the various sections of
society and also avoiding speculative transactions relating
to land in urban agglomerations. With a view to ensuring
MSS BHIM SIN Gil v. UNION (Sen, J.) 921

uniformity in approach Government of India addressed
the State Governments in this regard, eleven States have A
so far passed resolutions under Art. 252(1) of the Consti·
tution empowering Parliament to undertake legislation in
this behalf."

The Act consists of five Chapters. Chapter I contains the short B
title and the extant clause and Chapter II contains section 2, which
is the definition section. Chapter III deals with 'Ceiling on vacant
Land Chapter IV deals with 'Regulation of transfer and use of urban
land' and Chapter V contains miscellaneous provisions.

There can be no doubt that the legislative intent and object of c
the impugned Act was to secure the socialisation of vacant land in
urban agglomerations with a view to preventing the concentration of
urban lands in the hands of a few persons, speculation and profiteer·
ing therein, and with a view to bringing about an equitable distribu·
tion of land in urban agglomerations to subserve to common good, D
in furtherance of the Directive Principles of State Policy under Art.
39 (b) and (c). The Act mainly provides for the following:

(i) imposition of a ceiling on both ownership and posses·
sion of vacant land in urban agglomerations unders.3,
E
the ceiling being on a graded basis according to the
classification of the urban agglomerations under s.4;

(ii) acquistion of the excess vacant land by the State
Government under s.10(3), with powers to dispose of
the vacant land with the object to subserve the F
common good under s.23;

(iii) payment of an amount for the acquisition of the
excess land in cash and in bonds under s.14(2),
> according to the principles laid down in s.11 (I) G
subject to the maximum specified in s.11(6);

(iv) granting exemptions in respect of vacant land m
certain cases under ss.20 and 21; H

(v) regulating the transfer of vacant land within the
ceiling limits under s.26;
922 StiPREME COURT REPORTS (!985) SUPPL. a.c.R.

(vi) regulating the transfer of urban or urbanisable land
A
with any building (whether constructed before or
after the commencement of the Act, for a period of
ten years from the commencement of the Act or the
construction of the building whichever is later under
-
s.27;
B
(vii) restricting the plinth area for the construction of
future resdential buildings under s.29; and

(viii) other procedural and miscellaneous matters.

c The Act is thus intended to achieve the following objectives: (I)
to prevent the concencration of urban property in the hands of a few
persons and speculation and profiteering therein; (2) to bring about
socialisation of urban land in urban agglomerations to subserve the
common good to ensure its equitable distribution, (3) to discourage
D coastruction of luxury housing leading to conspicuous consumption
of scarce building materials. and (4) to secure orderly urbanisation.
Thus the dominant object and purpose of the legislation is to bring
about socialisation of urban land.

In order to appreciate the rival contentions, it is necessary to
E
set out the relevant provisions : Section 3 which is all important for
the purpose of these writ petitions, provides :

"3. Except as otherwise provided in this Act, on
and from the commencement of this Act, no person
F shall be entitled to hold any vacant land in excess of
the ceiling limit in the territories to which this Act applies
under sub-section (2) of section !."

Section 4 divides the urban agglomerations into four broad
G categories, categories A, B, C and D, and fixes the ceiling limits
varying from five hundred sq. metres in Category A to two thousand
sq. metres in Category D thereof. The word 'person' is defined in
s.2(i} as :

H
"2(i) "person" includes an individual, a family, a
firm, a company, or an association or body of indivi·
duals, whether incorporated or not."
M!S BRIM SINGH '· UNION (Sen, I.)

The definition of the word 'family' in s.2(f) is In the following
,. terms: A

"2(f) "family" in relation to a person, means the
individual, the wife or husband, as the case may be, of
such individual and their unmarried minor chiidren."
B
In order that the burden of compensation, that is, the amount payable
for such excess vacant lands by the Government, may not be high,
the Act incorporates a specific provision, namely, sub-section (ll of
s.11 which fixes the amount broadly on the following basis: (I) eight
and one-third of the annual net income from the land during the
last five years or where such annual income is not being derived, at c
rates not exceeding Rs. 10 per sq. metre or Rs. 5 per sq. metre in
Categories A and B, and C and D urban agglomerations resp~ctively,
classifying the area into different zones There is also a ceiling on
the maximum amount payable in any single case placed by sub-
section (6) of s.11. Sub-section (I) s.27 provides for the freezing of
all transfers of urban land with or without a building or portion of D
a building in all agglomerations for a poriod of ten years from the
date of the commencement of the Act or from the date ou which the
building is constructed.

The constitutional validity of the Act which has been placed in E
the Ninth Schedule by the Fortieth Amendment, is challenged
principally on the g'ound that, firstly. it is violative of the funda-
mental rights guaranteed under Arts 14, (19(.) (f) and 31(2), since
it seeks to alter the "basic structure" of the Constitution as formu-
lated by this Court in His Holiness Kesavananda Bharti v. State of
Kerala(I) and; therefore, has not the protective umbrella of Art.31B, F
and secondly that it is a law in negation of, and in furtherance of
the Directive Principles of State Policy under Art.39(b) and (c) and
is, therefore, not protected under Art.31C.

In Woman Rao & Ors. v. Union of India Ors.( 2 ) this Court by its
order, in the context of the decision in Kesavananda Bharati's case, G
has laid down.

"Amendments to the Constitution made on or after
April 24, 1973 by which the 9th schedule to the Constitu-
tion was amended from time to time by the inclusion o lJ

(1) [1973) Supp. SCR I.
(2J (1980J 3 sec 587
SUPREME COURT REPORTS [11)85] SUPPL, S.c.J!..

various Acts and Regulations therein, are open to
A challenge on the ground that they, or any one or more
of them, are beyond the constituent power of the Parlia-
.
ment 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 amend-
B ments except to say that if any Act or Regulation included
in the 9th Schedule by a constitutional amendment made
after April 24, 1973 is saved by Article 3 l.C 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 put in the
c 9th Schedule, on the ground that the Amendment damages
or destroys a basic or essential feature of the Constitution
or its basic structure as rellected in Articles 14, 19 or 31,
will become otiose.

D Article 31-C 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 Kesavananda Bharati.
Article 31-C, 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."

The validity of the impugned Act is challenged on four grounds
F Namely(') the inclusion of an artificial definition of 'family' in s. 2
(f) results in total exclusion of a joint Hindu family from the purview
of the Act and also in adoption of double standard between a family
with major sons, each of whom is a separate unit by himself, and a
family with minor children, which constitutes a family unit for fixing
a ceiling and thus s.3 of the impugned Act offends against the equal •
G protection clause in Art.I 4, as persons similarly situate are differential-
ly treated without any rational basis; (2) the impugned Act is inconsis-
tent with, takes away and abridges the fuudamental right guaranteed
under Art. 31 (2) inasmuch as the fixation of the maximum amount
payable under sub-s. (6) of Seel l, makes the Act confiscatory or at
H
any rate, the amount payable illusory; (3) sub-section (I) of s. 27 of

(I) c19so1 s. sec 578.
MSS BHIM SINGH '· UNION (Sen, J.)

he Act freezing all transfers by way of sale, mortgage, gift, lease for
a period exceeding ten years or otherwise, of any urban or urbanisa- A
ble land with a building (whether constructed before or after the com-
mencement of the Act), or a portion of such building, for a period
of ten years from such commencement or from the date on which the
building is constructed, whichever is later, except with the previous
permission in writing of the competent authority, even though such
B
vacant land in an urban agglomeration is within the ceiling limits, is
an unreasonable restriction on the fundamental right to property
guaranteed under Art. 19 (I); and (4) the 'priorities' laid down in s.23
of the impugned Act are not in keeping with part IV of the Consti-
tution and, therefore, liable to be struck down. It is urged upon
these grounds that the impugned Act is flagrantly violative of those c
aspects of the petitioners' fundamental rignts under Arts. 14, 19 and
31 as constitute the basic structure or framework of the Constitution,
and therefore, it is not protected under Art. 31B or 31C.

Land in urban areas is a vital physical recourse capable of D
generating and sustaining economic and social activities. It should
be properly utilised by the community for social good. But the
attraction of urban areas has led to profiteering and recketeering in
land in these areas. There is also mis-application of this scarce
resource of urban land for undesirable purposes. Therefore, a
E
comprehensive policy of effective control of land covering its use,
distribution amongst the V'lrious sections of the society and indi-
viduals and for different social purposes, and its disposal by owneri;
subject to their sharing the profits witn the community at large, has
been evolved. The Act has been designed to benefit the weaker
sections of the community. It also grant~ exemptions in favour of F
public institutions and co-operative housing. The imposition of ceil-
ing on land and plinth area of future dwelling units, and regulation
of transfer of urban property under the Act, seeks to achieve the
objective of social control over the physical resources of land. A
, unique feature of the Act is that it covers seventeen States and aJI the
Union Territories and provides for aggregation of holdings in urban G
agglomerations in the differen~ States where the law is applicable for
purposes of ceiling limits. In other words, persons holding vacant
lands or vacant and other built-up property with dwelling units
therein in different urban agglomerations throughout the country
will have to make a choice of retaining only one piece of vacant land H
within the ceiling limit a11d S\lrren4er excess vaqant lands else-where,
926 SUPREME COURT REPORTS [198SJ SUPPL. S.C.R.

Since the Act applies to firms, companies, and undertakings, future
A construction of industrial or commercial premises requiring large
areas cannot take place in the notified urban agglomerations without
obtaining the requisite land from the Government. This enables
Government to regulate and canalise the location of industries and
thus serve the broad policy approach in dispersal of economic
B activity. Hoarding of land by industrialists based on prospects for
expansion in the distrnt future, is thus sought to be avoided.

The fundamental issue is: Whether s. 23 of the impugned Act
impairs the basic structure or framework of the Constitution being
c violative of Art. 39 (b) and (c) and Art, 31 (2) of the Constitution
and is, therefore, not protected under Arts. 31-B and 31-C.

The impugned Act is designed as a law 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
D
of buildings 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 bringing about an equitable distribution of land in urban
agglomerations to subserve the common good, in furtherance of the
E Directive Principles under Art. 39 (b) and (c'. The constitutional
validity of s. 23 of the Act depends on whether in truth and
substance these objectives have been translated into action. Section
23 of the Act reads:

F "23. (I) It shall be competent for the State Govern-
ment to allot, by order, in excess of the ceiling limit any
vacant land which is deemed to have been acquired by
the State Government under this Act or is acquired by
the state Government under any other law, to any person
1
for any purpose relating to, or in connection with, any
G
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
H limit.

Explanation.-For the purpose of this section,-
.i

MSS BHIM SINGH'· UNION (Sen, J.) 927

(a) where any land with a building has been acquired
by the State Government under any other law and such A
building has been subsequently demolished by the State
Government, then, such land shall be deemed to be vacant
land acquired under such other law;

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

(2) In making an order of allotment under sub-section
( 1), the State Government may impose such conditions
as may be sqecified therein including a condition as to the
c
period within which the industry shall be put in opera·
tion or, as the case mly be the residential accommodation
shall be provided for:

D
Provided that if, on a representation made in this
behalf by the allottee, the State Government is satisfied
that the allottee could not put the industry in operation,
or provide the residential accommodation, within the
period specified in the order of allotment, for any good
and sufficient reason, the State Government may extend E
.' such period to such further period or periods as it may
deem fit.

(3) Where any condition imposed in an order of
allotment is not complied with by the allottee, the State F
Government shall, after giving an opportunity to the
allottee to be heard in the matter, cancel the allotment
with effect from the date of the non-compliance of such
condition and the land allotted shall revest in the State
Government free from all encumbrances. G

Subject to the provisions of sub-sections (I), (2) and
(3), all vacant lands deemed to have been acquired by the
State Government under this Act shall be disposed of by
•J
H
the State Government to subserve the common good on
such terms and conditiol\s as the $tate Governmenl may
~eem fit to imp<>se.
928 SUPREME COURT REPORTS (1985J SUPPL, S.C.R,

(5) Notwithstanding anything contained in sub-sec-
A tions (I) to (4), where the State Government is satisfied
that it is necessary to retain or reserve any vacant land,
deemed to have been acquired by that Government under
this Act, for the benefit of the publlo, it shall be compe-
tent for the State Government to retain or reserve such
B land for the same."

The submission is that though the impugned Act is designed as
a law for the imposition of a ceiling on vacant land in urban
agglomerations, to subserve the common good, in furtherance of
c the Directive principles under Art. 39 (b) and (c), the dominant
object of the impugned Act for the acquisition of vacant land in
urban agglomerations under s. 23 of the Act, was to facilitate the
setting up of industries in the private sector and, therefore, the Act
was not in furtherance of part IV of the Constitution and void being
violative of Art. 31 (2). It was urged that s. 23 of the impugned
D Act must, therefore, be struck down as unconstitutional, it being not
in keeping with part IV of the Constitution was not protected under
Art. 31C and that it cannot also have the protective umbrella of Art.
3!B as it seeks to alter the basic structure of the Constitution.

E Although the impugned Act is enacted with a laudable object,
to subserve the common good, in furtherance of the Directive Princi- (
ples of state policy under Art, 39 (b) and (c), it appears froni the
terms of sub-ss. (I), (2) and (3) of!. 23 that it would be permissible
to acquire vacant land in urban agglomerations and divert it for
private purpose. The whole emphasis is on industrialisaton. The
F opening words ins. 33 (4) "subject to the provisions of sub-sections
(!), (2) and (3)" make the provisions of s. 23 ( 4) subservient to s. 23
(1) which enables the Government to allot vacant land in an urban
agglomeration to any person for any purpose relating to, or in
connection with, any industry or for providing residential accom-
modation of such type as m•y be approved by the state Government
G to the employees of any industry. It further makes it lawful for the
allottee that is, the industrialist, to hold such land in excess of the
ceiling limit. The definition of the word 'industry' in Explanation
(b) to s. 23 (I) is wiJe enough to include any business, profession,
trade, undertaking or manufactue, and necessarily includes the
H
private sector. The proviso to s. 23 (2) fortifies that construction of
mine. It is incomprehensible that vacant lands in all urban agg•
lomerations throughout the country should be acquired for the
MSS BHIM SINGH v. UNION (Sen, J.) 929

purpose of setting up industries. More so, that it should permissible
to allow setting up of indu1tries for private gain. There is no A
material placed before us showing that the Government has prepared
any blue print for industrialisation of all the urban agglomerations in
India in the public sector.

B
In fact, faced with this difficulty, the learned Attorney General
attempted to justify the provisions contained in s.23 by submitting
that the opening words ins 23(4) "subject to the provisions of sub-
sections (I), (2) and (3)" must, in the context of the preamble and
the Directive Principles under Art 39(b) and (c), be construed to
mean "notwithstanding anything to the contrary contained in sub·
sections (1), (2) and (3)"' According to him, the "brooding spirit',
of the Preamble permeates through the entire section, and, therefore-
the provisions of s. 23 of the Act should be read in the light of the
preamble. The contention cannot be accepted. When the language
of the section is clear and explicit, its meaning cannot be controlled D
by the preamble. It is not for the Court to re-structure the section.
The re-structuring of a statute is obviously a legislative function.
The matter is essentially of political expediency, and as such it is the
concern of the statesmen and, therefore, the domain of the legislature
and not the judiciary.
B
It was, however, urged that s.23(1) of the Act is only an
enabling provision, and the real power was under s.23(4), and if
there is ambiguity in the language of s.23, it was possible to read the
section in the light of the preamble and th' Directive Principles under F
Art. 39(bl and (c) and as such s.23(1) is subject to s.23(4). The use
of the words "subject to the provisions of sub-sections (!), (2) and
(3)" in s.23(4) takes away the compulsion on the State Government
to adhere to the Directive Principles under Art. 39(b) and (c) in
making allotment of the vacant lands in an urban agglomeration
acquired under the Act. The words "subject to the provisions of sub· G
sections (I), (2) and (3J" in s.23(4}, appearing in the context ofs.23(1)
means 'in addition to; if anything is left over after the allotment
under s.23(1)'. I cannot. therefore, read the provisions of sub-ss.(1),
(2) and (3) s.23 of in the light of the preamble or the Directive
Principles under Art. 39(bl and (c). By no rule of construction can
the operation of sub·s.( ll of s.23 of the Act be controlled by the H
operatio11 of sub·s.( 4),
930 SUPrulME COURT REPORTS [1985] SUPPL. s.c.R.

A legislation built on the foundation of Art. 39(b) and (c)
•
permitting acquisition of private property must be for a public
purpose, that is, to subserve the common good. In my view, sub·ss. '
(!), (2) and (3) of s.23 of the Act negate that principle. Furthermore,
Art. 31 (2) consists of three pre-requisites namely (i) the property
shall be acquired by or under a valid law, (ii) it shall be
B acquired only for a public purpose. and (iii) the person whose
property has been acquired shall be given an amount in lieu thereof.
The definition of 'industry' in Explanation (b) to s. 23(1) ls wide
enough to include any busincess, trade or vocation carried on for
private gain. There cannot be 'mixed purpose' of public and private
to sustain a legislation under Art. 39(b) and (c). The vice lies in
c s. 23(1) and the Explanation (b) thereto, which on a combined
reading, frustrate the very object of the legislation.

One is left with the feeling that sub-ss. (1), (2) and (3) of s. 23
D of the impugned Act are meant to promote the interests of the
business community and further professional interests. While setting
up of an industry in the private sector may, at times, be for the
public good, there cannot be acquisition of private property for
private gain. Acquistion can only be for a 'public purpose'. That is
to say, a purpose. an object or aim in which the general interest of
• the community aq oppo>ed to the particular interest of the individual,
i• directly and vitally concerned. The concept of 'public purpose'
necessarily implies that it should be a law for the acquisition 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 acquisition under the Act is to set up
F industries in the private sector as is permissible from the provisions
of s. 23(1) of the Act, nothing prevents the State from taking
recourse to s. 40 of the Land Acquisition Act, 1894, for which there
mnst be quid pro quo, that i,, payment of compensation according to
the market value.
G
Our attention was drawn to the Guidelines issued by the
Government of India, Ministry of Works and Housing clarifying the
intent and purpose of the provisions of the Act. It may be stated
If here that these Guidelines cannot supersede or alter any of the I
provisions of the Act or the rules made thereunder. The Guidelines
jssue4 µ111,i~r s. 23 are in these terms :
MSS BHIM SINGH v, UNION (Sen, J.) 931

"Section 23 of the Urban Land (Ceiling and Regula-
tion) Act, 1976, governs, inter a/ia, disposal of vacant A
land acquired under the Act. In brief, this Section enables
the State Government to allot any vacant land for the
purpose of an industry or to subserve the common good.
or to retain or reserve such land for the benefit of the
public.

2. For the purpose of the Section 'industry' bas been
given a wider meaning so as to cover any business,
profession, trade, undertaking or manufacture.

3. The section also enables Government to allot land
c
for providing residential accommodation of such type as
may be approved by the State Government to the
employees of any industry. Thus the excess vacant land
acquired by the State Government under the Act can be
dealt with in the foll owing manner : D

(i) allotted for the purpose of an industry namely, any
business, profession, trade, undertaking or manu-
facture;
E
(ii) allotted for the purpose of construction of houses
for the employees of an industry specified in item (i)
above;

(iii) disposed of to subserve the common good which may
F
include allotment of vacant land for Government
purpose, for institutions, etc., and

(iv) retained/reserved for the benefit of the public"

It appears that the Government issued the following guidelines
G
pursuant to the recommendations made at a conference of State
Ministers of Housing and Urban Development with a view to imple-
ment the policy of socialisation of urban land :
H
"The 9th Conference of State Ministers of Housing
and Urban Development held at Calcutta on the 17th,
18th and 19th December, 1976, considered the matter anc
932 SUPREME COURT REPORTS (1985] SUPPL. 1.c.1.

A recommended that, in order to bring about social
objectives of the Act more prominently, the utilisation of
the excess vacant land should be according to the priori-
ties set down below subject to the prescribed land
uses:
B (i) Retain/reserve for the benefit of the public for social
housing, provision of basic amenties, etc.
.,
(ii) Dispose of to subserve common good which may
include allotment of vacant land for Government
c purposes, local authorities, institutions, etc.

(iii) Allot for the purpose of construction of houses for
the employees of industries specified in item (iv)
below.

D (iv) Allot for the purpose of industry, viz., any business,
profession, trade, undertaking of non-polluting
manufacture; cottage and small scale and wherever
possible ancillary industry, manufacture."

It is significant to notice that there was an attempt made in
E
these aforesaid Guidelines to alter the 'priorities' laid down in s. 23.
The Guidelines cannot alter the 'priorities' laid down in the section.
The Guidelines are nothing but in the nature or Executive Instruc-
tions and c1nnot obviously control the plain meaning of the section.
Where the language of the Act is clear and explicit, we must give
F effect to it, whatever may be the consequences, for in that case the
words of the statute speak the intention of the legislature.(') The
Court cannot be called upon to interpret the provisions of s. 23 of
the Act in the light of the Guidelines issued by the Government of
India, Ministry of Works and Housing.

G I am, therefore, constrained to hold that the provmons of
sub-ss. (!), (2) and (3) of s. 23 and the opening words "subject to the
provisions of sub-sections (I), (2) and (3)" in s. 23(4) wbicb make
the setting up of industries tbe dominant object for the acquisition of
vacant land in urban agglomerations under the Act, are not in keep-
ing with Part IV of the Constitution and, therefore, not protected
under Article 31 ·C.

(I) craie$ QP ~tatute Law~ 6th ed., p.6~ 1
Mss BHIM SINGH v. UNION (Sen J.) 933
A legislation which directly runs counter to the Directive
Principles of State Policy enshrined in Art. 39(b) and (c) cannot by A
the mere inclusion in the Ninth Schedu'.e receive immunity under
Art. 3!B. The Directive Principles are not mere homilies. Though
these Directives are not cognizable by the Courts and if the Govern-
ment of the day fails to carry out these objects no Court can make
the Government ensure them, yet these principles have been declared B
to be fundamental to the governance of the country. Granville
Austin(') considers these Directives to be aimed at furthering the
goals of the social revolution or to foster this revomtion by
establishing the conditions necessary for its achievement, He
explains:
c:
"By establishing these positive obligations of the
State, the members of the Constituent Assembly made if
the responsibility of future Indian governments to find a
middle way between individual liberty and the public
good, between preserving the property and the privilege
D
of the few and bestowing benefits on the many in order
to liberate 'the powers of all men equally for contributions
to the common good'."

In short, th~ Directives emphasise, in amplification of the
preamble, that the goal of the Indian polity is not laissez faire, but a E
welfare State, where the State has a positive duty to ensure to its
citizens social and economic justice and dignity of the individual.
It would serve as an 'Instrument of Instructions' upon all future
governments, irrespective of their party creeds.
F
Article 38 requires that the Stdte should make an effort to
promote the welfare of the people by securing and protecting as
effectively as it may a social order in which jtistice, social, economic
and political, shall inform all the institutions of the national life. In
other words, the promise made by the Constitution to the citizens of
India in its Preamble is directly included in one of the Directive G
Principles of State Policy. Article 39, cl. (a) requires that all citizens
shall have a right to adequate means of livelihood. Article 39(b)
enjoins that the State shall enmre that the ownership and control of
the material resources of the community are so distributed as best to
H
(1) Glanville Austin-The Indian Constitution : Cornerstone of a Nation
pp.50-52. '
9~4 SUPREME COURT REPORTS (198~] SUPPL, s.d.&.

subserve the commou good. Article 39(c) mandates that the State
A shall direct its policy towards securing that the operatiou of the
ecouomic system does uot result iu the coucentration of wealth aud
meaus of production to the common detriment. Dr. P.B.
Gajeudragadkar iu 'Law, Liberty aud Social Justice', observes:

B "These directive priuciples very briefly, but eloqueu-
tly, lay down a policy of action for the differeut State
Governmeuts aud the Ceutral Goverumeut, aud iu a
sense, they embody solemnly and recoguize the validity of
the charter of demands which the weaker sections of the
citizens suffering from sociol-economic injustice would
c present to the respective governments for immediate
relief."

Chaudrachud J. (as he theu was) iu Smt. Indira Gandhi v.
Raj Narain(') after observing that the ratio of the majority in
D Ktsevananda Bharati's case were merely illustrative of what constitutes
the basic structure and are not intended to be exhaustive, observes :

"I consider it beyond the pale of reasonable contro-
versy that if there be any unamendable features of the
E of the Constitution, on the score that they form a part of
the basic structure of the Constitution,they are that : (i)
India is a Sovereign Democratic Republic; (ii) Equality of
status and opportunity shall be secured to all its citizens,
(iii) The State shall have no religion of its own aud all
persons shall be equally entitled to freedom of couscieuce
F and the right freely to profess, practise and propagate
religion and that (iv) the Nation shall be governed by a
Government of laws, uot of men. These in my opinion,
are the pillars of our constitutional philosophy, the
pillars therefore of the basic structure of the Constitu-
tion."
G
According to him, the pillars of the Coustitution are Sovereign
Democratic Republic, Equality of Status and Opportunity, Secular-
ism, Citizen's right to religious worship, and the Rule of Law. With
H respect, I would add that the concept of social aud economic justice-
to build a Welfare State-is equally a part of the basic structure or

(I) (1976] 2 SCR 347.
MSS Bll!M SINGH v. UNION (Sen, J.) 935

the foundation upon which the Constitution rests. The provlSlons
of sub-ss. (!), (2) and (3) of s. 23 and the opening words "subject to
the provisions of sub-sections(!), (2) and (3)" in s. 23(4) are the
very antithesis of the idea of a Welfare State based on social and
economic justice. Since these provisions permit acquisition of
property under the Act for private purposes, they offend against the
Directive Principles of State Policy of Art. 39(b) and (c) and are also
. violative of Art. 31(2) and therefore, not protected under Art. 3LB.
B

• I would, therefore, declare that the provisions of sub-sections
(I', (2) and (3) ofs. 23 and the opening words "subject to the pro-
visions of sub-sections (I), (2) and (3)" in s. 23( 4) are ultra vires of
the Parliament. c
With the striking down of the invalid provisions what remains,
that is, the remaining provisions of the impugned Act, including
s. 23( 4) thereof. being in conformity with Part IV of the Constitution
and Article 31(2), are valid and, therefore, tbe impugned Act has the D
protection of both Article 31-B and Article 31-C.

I find no justification to strike down the whole Act as it 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 E
stand as the true expression of the national will. The provisions of
sub-ss. (I), (2) and (3) of s. 23 and the opening words "subject to
the provisions of sub-sections(!), (2) and (3)" ins. 23·4), which are,
in my view, invalid, cannot effect the validity of the Act as a whole.
The test to be applied when an argument like the one addressed in F
this case is raised, has been summed up by the Privy Council in
Attorney-Genera/for Alberta v. Attorney-General for Canad,( 1) iu
these words :

) "The real question is whether what remains is so
inextricably bound up with the part declared invalid that G
what remains cannot independently survive or, as 1t has
sometimes been put, whether on a fair review of the
whole matter it can be assumed that .the legislature w _iuid
have enacted what survives without enacting the part til•t
is ultra vires at all." H

(I) (1947] A.C. 505 at SIS,
936 SUPRl!ME COURT REPORTS {1985) SUPPL, S.C.ll.

It is quite clear that the provisions of sub-ss. (!). (2) and (3) of s. 23
A and the opening words "subject to the provisions of sub-sections
(1), (2) and (3)" ins. 23(4) struck down by me are not inextricably
bound up with the remaining provisions of the Act, and it is difficult
to hold that the legislature would not have enacted the Act at all
without including that part which is found to be ultra vires. The Act
B stiJJ remains the Act as it was passed, i.e., an Act for imposition of
ceiling on urban land.

In determining the effect of the law upon the individual's right
to property, the Court must take judicial notice of the fact of vast
c inequalities in the existing distribution of property in the country.
The Court's concern lies not merely with applying the pre-existing
sets of theories, concepts, principles and criteria with a view to
determining what the Jaw 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
D in the authority of the people. This demands that constitutional
questions should not be determined from a doctrinaire approach,
but viewed from experience derived from the life and experience or
actual working of the community. which takes into account emer-
gence of new facts of the community's social and economic life
affecting property rights of the individual, whenever, among others,
B the validity of a law prescribing preference or discrimination is in
question under the "equal protection" guarantee.

It should be remembered that the Directive Princi!Jles cannot
F be regarded only as idle dreams or pious wishes merely by reason of
the fact that they are not enforceable by a court of law. A rule of
law in facts does not cease to be such because there is no regular
judicial or quasi-judicial machinery to enforce its commands. An
attempt to create a truly social Welfare State also carries with it the
idea that in a country like India concentration of wealth in the
(
G country must be done away with and its distribution on an equitable
basis effected in order to bridge the gap between the rich and the
poor. The very purpose of creating such a state is to benefit the
weaker and poorer sections of the community to a much greater
extent than the rich persons so that the living standards of the people
in general may improve. In fact, in such a State, all welfare schemes
H in their operation generally tend to benefit the poor people to a much
greater extent than others. If an equal protection guarantee were
enough to invalidate such schemes, improvement in the economic
MSS lllt!M SINGlt v. UNION (Sen, J.) 937

and social conditions of the country would be impossible. One
>
should not be swayed away by emotions but should be guided by the A
real needs of the country. Hence a paradoxical situation should be
avoided by refusing to perpetuate the existing inequality among the
social classes and maintain that gap to the same extent as before by
intending to pay to the rich compensation at the same full rates as
in the case of the poorer sections of the community.
B
The impugned Act is meant to remove inequalities with a view
to promote 'the greatest happiness of the greatest number'. During
the last thirty years much has been done to implement the State's
policy of socialisation of agricultural land by imposition of a ceiling
on agricultural holding. There is much that still remains to be done. c
There is noed for prevention of concentration of wealth in a few
hands in the urban areas and to provide for equitable distribution
of vacant land among others. The grnat disparity between the rich
and the poor is more visible in the urban areas particularly in the
great cities. A majority of the people in the urban areas are living D
in abject poverty. They do not even have a roof over their heads.
Concentration of wealth in a few hands is not conducive to the
national wellbeing.

The challenge to the validity of the artificial definition of
'family' in s.2(f) of the impugned Act must fail. The Court has E
recently upheld the validity of an identical definition of 'family'
appearing in the different State laws relating to imposition of ceiling
on agricultural land. Some marginal hardship is inevitable in the
working of the legislation. The ultimate object is to reduce inequa-
lities in the larger interest. That takes us to the question whether I!
the definition of 'family' in s.2(f) of the Act results in the exclusion
of a joint Hindu family.

- The definition of 'family' contained in s.2(f) is in the following
terms :

"2.(f) "family" in relation to a person, means the
G

individual, the wife or husband, as the case may be, of
such individual and their unmarried minor children."
H
As a result of the artificial definition of 'family' in s.2(f), there is no
denying the fact that a joint Hindu family is excluded from the
purview of the Act. Section 3 of the Act provides that no person, on
STJPREMB COURT REPORTS [198SJ SUPPL. S.C.R.
and from the commencement of the Act, shall be entitled to ho!
A any vacant land in excess of the ceiling limit in the territories to
which the Act applied. The word 'person' is defined in s.2(i) as :

"2.(i) "person" includes an individual, a family, a
firm, a company, or an association or body of individuals,
whether incorporated or not;"
B
The question is whether the total exclusion of joint Hindu
family renders the Act void and unconstitutional as violative of
Art.14. I do not think that this is so. Parliament deliberately
excluded a joint Hindu family from the purview of s.3 of the
c impugned Act. As already pointed out in Vasavaiah Chaudhary's
case, Parliament was be;et with difficulties in imposing a ceiling
on urban immovable property. While dealing with imposition of
ceiling on vacant urban land it was presumably faced with another
difficulty, viz., the institution of a joint Hindu family. According to •
the Mitakshara School of Hindu Law, there is community of interest
D
and unity of possession. Under the Mitakshara School a copar-
cener cannot predicate the extent of his share, while under the
Dayabhaga school a member of joint Hindu family takes as a tenant
in common. We, therefore, do not find anything wrong in excluding
a joint Hindu family. The impugned Act applies to Hindus,
E Mohamedans and Christian alike. By the exclusion of a joint Hindu
family the members of a joint Hindu family, whether governed by
the Mitakshara School or the Dayabhaga School, were brought at par
with others. The contention that the impugned Act offends against
Art.14 must, therefore. fail.
F
The contention that the amount fixed by sub-s.(6) of s.11 of
the impugned Act is totally arbitrary and illusory since there is no
nexus betwen the value of the property and the amount fixed and,
therefore, the maximum amount fixed under sub·s.(6) makes the Act
G confiscatory in total abrogation of th.e fundamental rigl:tt guaranteed
under Art.3 I (2) cannot be accepted. The Constitution (25th
Amendment) Act, 1971, which came into force on April 20, 1972, by
s.2(a) substituted the word 'amount' for the word 'compensation' in
the new Art.31(2), which reads :

H "31(2) No property shall be compulsorily acquired or
requisitioned save for a public purpose and save by
authority of a law whicl:t provides for acquisition or
i.iss llilIM SINGH y, UNION (Sen, J.) 939

requisitioning of the property for an amount which may
be fixed by such law or which may be determined in
A
accordance with such principles and given in such manner
as may be specified in such law; and no such law shaJI be
called in question in any court on the ground that the
amount so fixed or determined is not adequate or that the
whole or any part of such amount is to be given otherwise 8
than in cash.''

Under the original Art.31(2), no property could be acquired for a
public purpose under any law, unless it provided for compensation
of, or acquired and either fixed the amount of the compensation, or C
specified the principles on which, and the manner in which, the
compensation was to be determined and given.

It will be seen that Art.31(2) provides for acquisition or
requisitioning of the property for an amount which may be fi <ed by D
such law, or which may be determined in accordance with such
principles and given in such manner as may be specified in such Jaw.
No such law can be called in question on the ground that the amount
is not adequate, or that the whole or any part of it is to be given
otherwise than in cash. Section 2(b) of the 25th Amendment Act
inserted a new clause (2B) to Art.3 l which provides : E

"31.(2BJ Nothing in sub-clause (f) of clause (I) of
article 19 shall affect any such law as is referred to in
clause (2)."
F
The substitution of the neutral word 'amount' for the word 'com-
pensation' in the new Art.31 (2) still binds the legislature to give to
the owner a mm of money in cash or otherwise. The legislature may
either lay down the principles for the determination of the amount
or may itself fix the amount. The choice open to the legislature is
that the amount should be directly fixed by or under the law itself G
or alternatively, the law may fix principles in accordance with which
the amount will be determined.

Sub·section (I) of s.J I reads :
H
"11(1) Where any vacant land is deemed to have been
acquired by any State Government under sub-section (3)
940 St.IPREMS COURT REPORTS [1985] SUPPL. S.C.R.

of section 10, such State Government shall pay to the
A person or persons having any interest therein,-

(a) in a case where there is any income from such
vacant land, an amount equal to eight and one-third times
the net average annual income actually derived from such
B land during the period of five consecutive years immedia-
tely preceding the date of publication of the notification
issued under sub-section (1) of section 10; or

(b) in a case where no income is derived from such
vacant land, an amount calculated at a rate not
c exceeding-

(i) ten rupees per square metre in the case of vacant
land situated in an urban agglomeration falling within •
D category, A or category B specified in 3chedulc I; and

(ii) five rupees per square metre in the case of vacant
land situated in an urban agglomeration falling within
category C or category D specified in that schedule."
E
In order that the burden of compensation, that is, the amount
•
payable under Art.31(2) for taking over vacant land in excess of the
ceiling limit in sub-s. (3) of s.10 by the government may not be high,
the Act incorporates a specific provision in sub-s, (6) of s.11 to fix
F a ceiling on the maximum amount payable in any single case. The
sub-section reads :

"11(6) Notwithstanding anything contained in sub-
section (I) or sub-section (5), the amount payable under
G either of the said sub-sections shall, in no case, exceed
(
two lakhs of rupees."

It is not suggested that sub·s.(I) of s. 11 does not lay down any
principles for determination of the amount payable for the taking of
H excess vacant lands in an urban agglomeration or that the principles
laid down in sub·s. (I) are not relevant for the determination of the
amount payable. It is also not suggested that payment of the
amount at the rate of Rs. 10 per sq. metre and Rs. 5 per sq. metre,
M!S BHIM SINGH v. UNION (Sen, J.) 941

for the vacant land in categories and B, and categories C and D
respectively, makes the amount illusory or the Act confiscatory. The
submission is that the fixation of the maximum amount payable at
A
Rs. 2 lacs in a single case by sub·s.(6) makes the amount payble
under sub-s (I) wholly illusory and, therefore, the Act is confiscatory.
That cannot be so, because the fixation of ceiling on the maximum
at Rs. 2 lacs under s.11(6) implies that it would affect only persons
owning 20,000 sq. metres of vacant land in metrepolitan cities like
B
Delhi, Calcutta, Bombay and Madras or large cities like Hyderabad,
Bangalore, Poona, Kanpur and Ahmedabad falling in categories A
and B, or persons owning 40,000 sq. meters in big cities like
Lucknow, Allahabad, Nagpur, Jaipur etc. falling in categories C and
and D. One is left to wonder how many own such vast tracts of c
vacant land in such cities. If any, very few indeed. Even if there
are, the amount cannot be related to the value of the property taken.
It is pure arithmetics. Twenty thousend sq. metres would make
23,920 sq. yards and forty thousand sq. metres 47,840 sq. yards. In
a city like Delhi, Calcutta, Bombay and Madras the value of a
square yard of vacant land would depend upon the situation of the D
land. If that be the criteria, then there can be no ceiling on vacant
land in urban agglomerations, much less gei!ing on immovable
property in such cities, when it comes to be imposed. The State has
not the capacity to bear the burden. If the contention were to
prevail, then no law for the implementation of the Directive Princi·
pies of State Policy under Art.39(b) or (c) can ever be implemented. E

We may recall the words of Pandit Jawaharlal Nehru, who
while introducing the Constitution (Fourth Amendment) Act, \955,
said in Parliament :

"If we are aiming, as I hope we arc aiming and vere·
'
peatedly say we are aiming, at changes in the social
j structure, then inevitably we cannot think in terms of
giving what is called full compensation. Why ? Well,
firstly because you cannot do it, secondly because it would G
be improper to do it, unjust to do it, and it should not be
done even if you can do it for the simple reason that in
all those social matters, laws etc., they are aiming to bring
about a certain structure of society different from what it
is . at present.. In that different structure among other H
thmgs tha will change is this, the big, difference between
the have's and the hav~qofs, Now, if w~ are !livin$ full
942 llUPREMB COURT REPORTS (1985] SUPPL, S.C.R.

compensation, the have's remain the have's and the have-
A not's, have-not's. It does not change in shape or form if
compensation takes place. Therefore, in any scheme of
social engineering, if I may say so, you cannot give fall
compensation-apart from the patent fact that you are
not in a position-nobody has the resources-to give
8 it."
There can be no scheme for nationalisation of any industry,
there can be no socio-economic measures enacted if the concept of
'just equivalent' were to be introduced even after the 25th Amend·
ment. To emphasise the point that the amount of Rs. 2 lacs fixed
c under sub-s.(6) of s.11 makes the Act confiscatory, our attention
was drawn to the fact that the Jetitioner in writ Petition No. 350 of
1977, Maharao Saheb hri Bhim Singhji, the former Maharana of
Kotah owns 971. 50 acres of vacant land appurtenant to and covered
under his Urned Bhawan Palace in the city of Kotah, which is an <
urban agglomeration falling under category 'D', and which stands
D requisitioned under s.23(1) of the Defence and Internal Security of
India Act, 197 I. There is no dispute that the property of the
Maharana is valued for the purposes of the Rajasthan Lands and
Buildings Tax Act, 1964, at Rs. 4,12,27,726.84. Does it mean that
the amount should be geared to the value of the vacant land taken
E under sub-s. (3) of s IO? When the Court has no power to
question the adequacy of the amount under Art.31(2), can it be said
that the amount fixed determined according to the principles laid
•
down in sub-s.( 1) of s. l l, subject to the maximum fi<ed under
sub-s.(6) thereof is illusory merely because of inadequacy?

F Who are we to say that it should be 10 per cent or less, or 50
per cent or more. The leeislature in its wisdom has laid down the
principles and fixed a ceiling on the maximum amount payable.
That is a legislative judgment and the Court has no power to question
it. Seervai in his book on Constitution, 2nd Ed., vol.I, p.656, while
dealing with the Fourth Amendment states that in permitting 'inade·
G quate compensation' the 4th Amendment removed a fixed yard-stick
and made all discussion about 'relevant' and 'irrelevant' principles
meaningless. The learned author says :
"If the questions were asked, why ha1 the law fixed
compensation amounting to 60 per cent and not to 70 or
H 50 per cent of the market value, the answer would be that
in the legislative judgment the amount fixed by the law Wa$
MSS BBIM SJNClH Y. UNION (Sen, /.) 943

a fair and just compensation for the acquisition of pro-
perty under the at law, and if a law fixing compensation at A
amounts ranging from 90 to 50 per cent or less, of the
market value of the property acquired, cannot be struck
down by a Court, equally, principles of compensation
cannot be struck down when they produce the same result.
The consequences of the transformation brought about by B
the 4th Amendment is that 'principles of compensation'
do not mean the samething before and after the 4th
Amendment."

As the learned author explains, 'considerations of social justice are
imponderable and, therefore no fixed money value can be put on C
them by any principle', and goes on to say 'The question whether
the Court can go into the question whether the amount is illusory is
difficult to answer'. The legislature considers a maximum amount of
Rs.2 lacs to be a fair and just recompense for the acquisition or
excess vacant land in an urban agglomeration. By no standard can D
an amount of Rs.2 lacs be considered to illusory.

The 25th Amendment has placed the matter of adequacy of
compensation beyond the pate of controversy by substituting the
word 'amount' for the word 'compensation' in Art 31(2) and made
the adequacy of the amount payable for acqisition or requisition of
,. property nonjusticiable.

In Kesavananda Bharti's case, the Court upheld the constitu,.
tio1at validity of the 25th Amendment. The impact of the new
Article 31 (21 was also considered as well as the content and meaning
of the word 'amount'. According to the majority, the amount fixed
F
or determined to be paid cannot be illusory. But one thing is clear-
the meaning which the Court placed on the word 'compensation' in
R. C, Cooper's case( 1) of adequacy of compensation and on relevant
principles has been held to have been nulified by the 25th
Amedment. G
The two decisions directly in point are the State of Kera/a &
Anr. v. The Gwalior Rayon Silk Mfg. Co.( 2 ) and State of Karnataka
v. Ranganatha Rtddy.(3 ) In Gwalior Rayon's case the Court upheld

(I) [1970] 3 S.C.R 530.
H
(2) [1974) I S.C.R. 671.
(3) [1978) I S.C.R. 641.
944 SUPREME COURT REPORTS [1985] SUPPL1 S.C.R.

the validity of the Kerala Private Forests (Vesting and Assignment)
A Act, 1971, which provided for the vesting of private forest lands held
in Janman rights, even though there was no provisio.n for payment
of compensation. The Court held that since the Act envisaged a
scheme of agrarian reform, it was protected under Art. 3.l A and
could not be challenged on the ground that it takes aways, a bridges
B or abrogates the fundamental rights guaranteed by Arts.14, 19 and
31. In Ranganatha Reddy's case the Court upheld a scheme for
nationalisation of contract carriages in the State, since it laid down
the principles for the determination of the amount payable under
Art.31(2) and they were not irrelevant for the determination of the
amount. Untwalia J. speaking for the majority ob;erved :
c
"On the interpretations aforesaid which we have put
to the relevant provisions of the Act, it was diflicult-
rather impossible-to argue that the amount so fixed will
(
be arbitrary or illusory. In some respects it may be
D inadequate but that cannot be a ground for challenge of
the constitutionality of the law under Article 31(2)."

Krishna Iyer J. in a separate but concurring judgment after deducing
the discernible principles from the decision in Kesavananda Bharati's
E case, held that the 25th Amendment bars the Court's jurisdiction to
investigate the adequacy of the amount. In view of these two
decisions, the contention that fixation of maximum amount by
sub-s. (6) of s. 11 renders the amount payable under sub-s. (I)
illusory or in the alternative makes the !Act confiscatory cannot be
accepted.
F
There still remains the contention regarding the invalidity of
sub-s. (1) of s. 27, which reads :

"27. (I) Notwithstanding anything contained in any
G other Law for the time being in force, but subject to the
provisions of sub-section (3) of section 5 and sub-section
(4) of section 10, no person shall transfer by way of sale,
mortgage, gift, lease for a period exceeding ten years, or
otherwise, any urban or urbanisable land with a building
H (whether constructed before or after the commencement
of this Act) or a portion only 0f such building for a
period of ten years of such commencement or from
the date on which the building is constr11cted, wi)ichever
MSS BHIM SINGH v. UNION (Sen, J.)

. is later, except with the previous permission in writing of
the competent authority." A
It is urged that sub-s. (I) of s. 27 confers arbitrary and
uncontrolled powers on the competent authority to grant or refuse
permission for transfer and that the conferral of such uncontrolled
and uncanalised power without any guidelines renders the provision B
illegal and void and unenforceable being an unreasonable restriction
on the right to acquire, hold and dispose of property guaranteed
under Art. 19(1(f). It is said that the mattet is left to the whim and
fancy of tbe competent authority, and the, power so conferred is
capable of misuse and thus be an instrument of great oppression. The
learned Attorney General tried to meet the cpntention by urging that
c
there was no reason to think that the competent authority would
refuse to grant permission where the trahsaction is bona fide.
According to him, the competent authority would be justified in
refusing to grant permission where the transaction is calculated to
defeat the provisions of the Act. It is said that the whole object of D
freezing of the transactions was to hold the price line of urban land.
He drew our attention to the guidelines issuel:I by the Government of
India, Ministry of Works and Housing to the, various State Govern·
ments directing that all applications for grant of permission under
sub-s. (I) of s. 27 of the Act should be dealt with expeditiously with
a view to prevent any inconvenience to the members of the public E
and further that permission should be granted, as a matter of course,
within three days of the receipt of such application.

In my judgment, there is no justification at all for the freezing
of transactions by way of sale mortgage, gift or lease of vacant land F
or building for a period exceeding ten years, or otherwise, for a
period of ten years from the date of the commencement of the Act,
even though such vacant land with or without building thereon falls
within the ceiling limits. In Excel Wear v. Union of India & Ors.i')
the Court held that the right to carry on a business guaranteed under
Art. 19(1) (g) carries with it the right not to carry on business. It G
must logically follow, as a necessary corollary, that the right to
acquire, hold and dispose of property guaranteed to a citizen
under Art. !9(1)(f) carries with it the right not to hold any property.
It is difficult to appreciate how could a citizen be compelled to own
}I
property against his will.

(I) p979J 1s.c.R.1r09
946 SUPREME COURT REPORTS [1985] SUPPi.. s.c.R.

If vacant land owned by a person falls within the ceiling limits
A for an urban agglomeration, he is outside the purview of s. 3 of the •
Act. That being so, such a person is not governed by any of the
provisions of the Act. When this was pointed out to the learned
Attorney General, be was unable to justify the imposition of the
restriction imposed by sub·s. (I) of s. 27 in case of land falling with-
B in the ceiling limits as a reasonable restriction. It must, accordingly,
be held that the provision of sub-s. (I) of s. 27 of the impugned Act
is invalid insofar as it seeks to affect a citizen's right to dispose of
his urban property in an urban agglomeration within the ceiling
limits.
c I would, for the reasons stated, declare sub-sections (1) (2) and
(3) of section 23 and the opening words "subject to the provisions
of sub-sections(!), (2) and (3)" in s~ction 23(4) of the Urban Land
(Ceiling and Regulation) Act, 1976 as ultra vires of the Parliament
D and that these provisions are not protected under Articles 31·B and
Jl·C of the Constitution, and further declare that sub·section (1) of
section 27 of the Act is invalid insofar as it imposes a restriction on
transfer of urban property for a period of ten years from the com·
mencement of the Act, in relation to vacant land or building
thereon, within the ceiling limits.
E
Having struck down sub-sections (I) (2) and (3) of section
23 and the opening words "subject to the provisions of Sub-sections
(I), (2) and (3)" in section 23(4) of the Act, I would declare the
remaining provisions of the Urban I.and (Ceiling and Regulation)
F Act, 1976, including sub·section (4) of section 23 thereof as valid and
constitutional.

In the result, the writ petitions, except to the exten I indicated,
mull fail and are dismissed. There shall be no order as to costs.
G
S.R. Petitions dismissed.