PETITIONER:
P.D. SHAMDASANI
Vs.
RESPONDENT:
CENTRAL BANK OF INDIA LTD.
DATE OF JUDGMENT:
21/12/1951
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 59 1952 SCR 391
CITATOR INFO :
R 1954 SC 92 (15)
F 1956 SC 108 (7)
D 1959 SC 725 (9)
RF 1976 SC1207 (55,80)
ACT:
Constitution of India, Arts. 19(1) (f), 31(1), 32 –In-
fringement of property rights by private individuals–Appli-
cation under Art.32 –Maintainability–Scope of Arts. 19(1)
(f) and 31 (1 ).
HEADNOTE:
Article 19(1)(f) of the Constitution is clearly intended
to protect the freedom to acquire, hold and dispose of
property against State action other than in the legitimate
exercise of its power to regulate private rights in the
public interest. Similarly, article S1(1) provides a safe-
guard against deprivation of property by the State except by
procedure established by law. Violation of rights of
property by private individuals is not within the purview of
those articles.
A person whose rights of property are infringed by a
private individual must therefore seek his remedy under the
ordinary law and not by way of an application under article
32.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 328 of 1951.Petition
under article 32 of the Constitution for issue of writs
in the nature of certiorari, prohibition and mandamus. The
facts appear in the judgment.
The petitioner in person.
C.K. Daphtary, Solicitor-General of India, (J. B.
Dadachanji, with him) for the respondent.
1951. December 21. The Judgment of the Court was
delivered by
PATANJALI SASTRI.C.J.–This is a petition under article
32 of the Constitution for the enforcement of the petition-
er’s fundamental rights under article 19 (1) (f) and article
31(1) alleged to have been violated by the Central Bank of
India Ltd., a company incorporated under the Indian Compa-
nies Act, 1882, and having its registered office at Bombay,
(hereinafter referred to as “the Bank”).
It appears that the petitioner held five shares in the
Share capital of the Bank which sold those shales to a
51
392
third party in purported exercise of its right of lien for
recovery of a debt due to it from the petitioner, and the
transfer was registered in the books of the Bank in the year
1937. The petitioner thereupon instituted a series of pro-
ceedings in the High Court at Bombay on its original and
appellate jurisdiction challenging the validity of the said
sale and transfer. The latest of these proceedings was a
suit filed against the Bank in 1951 wherein the plaint was
rejected on 2nd March, 1951, under Order 7, Rule 11 (d), of
the Code of Civil Procedure as barred by limitation. The
petitioner now prays that all the adverse orders made in the
previous proceedings be quashed and the said High Court be
directed to have “the above suit set down to be heard as
undefended and pronounce judgment against the respondent or
to make such orders as it thinks fit in relation to the said
suit”. It may be mentioned here that though the aforesaid
order rejecting the petitioner’s plaint was appealable, the
petitioner did not prefer an appeal on the somewhat extraor-
dinary ground that “the appeal if filed could not be heard
by the Judges of the said Court as all of them were disqual-
ified from hearing such appeal” either because of their
interest in the Bank or because of their prejudice against
him.
We are of opinion that the petitioner has misconceived
his remedy and the petition must fail on a preliminary
ground. Neither article 19 (1) (f) nor article 31 (1) on
its true construction was intended to prevent wrongful
individual acts or to provide protection against merely
private conduct. Article 19 deals with the “right to free-
dom” and by clause (1) assures to the citizen certain funda-
mental freedoms including the freedom “to acquire, hold and
dispose of property” subject to the power of the State to
impose restrictions on the exercise of such rights to the
extent and on the grounds mentioned in clauses (2) to (6).
The language and structure of article 19 and its setting in
Part III of the Constitution clearly show that the article
was intended to protect those freedoms against State action
other than in the legitimate exercise of its power to regu-
late private rights in the public interest,
393
Violation of rights of property by individuals is not within
the purview of the article.
The position is no better under article 31 (1). The
petitioner has urged that clause (1) should be construed
apart from and independently of the rest of the article and,
if so construed, its language is wide enough to cover in-
fringements of rights of property by private individuals.
He laid emphasis on the omission of the word “State” in
clause (1) while it was used in clause (2) of the same
article as well as in many other articles in Part III.
Referring to entry No. 33 of the Union List, entry No. 36 of
the State List and entry No, 42 of the Concurrent List of
the Seventh Schedule to the Constitution, he also argued
that, while these entries read with article 246 empowered
Parliament and the State Legislatures to make laws regarding
acquisition or requisitioning of property for the purposes
of the Union or the State as the case may be. no power was
conferred to make laws regarding “deprivation of property”
by the State, so that the “deprivation” contemplated in
clause (1) could only be deprivation by individuals. Sub-
section (1) of section 299 of the Government of India Act,
1935, corresponding to clause (1) of article a 1 was, it was
pointed out, omitted in the draft article 19 (later numbered
as article 81) which retained in a modified form only the
provision contained in sub-section (2) of that section
relating to compulsory acquisition of property for public
purposes. But, clause (1) was subsequently restored and
article was enacted in its present form as recommended in
Drafting Committee’s Report and this, it was claimed, showed
that clause (1) was intended to operate as a distinct provi-
sion apart from clause (2). We see no force in any of these
arguments.
In support of the argument that clause (1 ) should be
construed in isolation from the rest of the article, the
petitioner relied on certain observations of our learned
brother Das in Chiranjit Lal v. The Union of India (1),
where the view was expressed that clause (1)enunciated the
general principle that no person should be deprived
(1) [1950] S.C,R,. 860.
394
of his property except by authority of law and laid down no
condition for payment of compensation, while clause (2)
dealt with deprivation of property brought about by acquisi-
tion or taking possession of it and required payment of
compensation. In other words, deprivation referred to in
clause(1) must be taken to cover deprivation otherwise
than by acquisition or requisitioning of property dealt with
in clause (2). We consider it unnecessary for the
purpose of the present petition to go into that question.
Even assuming that clause (1) has to be read and construed
apart from clause (2), it is clear that it is a declaration
of the fundamental right of private property in the same
negative form in which article 21 declares the fundamental
right to life and liberty. There is no express reference to
the State in article 21. But could it be suggested on that
account that that article was intended to afford protection
to life and personal liberty against violation by private
individuals ? The words “except by procedure established by
law” plainly exclude such a suggestion. Similarly, the words
“save by authority of law” in clause (1) of article 31 show
that it is a prohibition of unauthorised governmental action
against private property, as there can be no question of one
private individual being authorised by law to deprive anoth-
er of his property.
The argument based on the entries in the Lists is
fallacious. It is not correct to suggest that, merely be-
cause there is no entry in the Lists of the Seventh Schedule
relating to “deprivation of property” as such, it is not
within the competence of the legislatures in the country to
enact a law authorising deprivation of property. Such a law
could be made, for instance, under entry No. 1 of List II,
entry No. 1 of List II or entry No. 1 of List III. Article
31 (1) itself contemplates a law being passed authorising
deprivation of the properties, and it is futile to deny the
existence of the requisite legislative power.
Nor does the legislative history of the article lend any
support to the petitioner’s contention. Section 299
395
(1) of the Government of India Act, 1935, was never inter-
preted as prohibiting deprivation of property by private
individuals. Its restoration, therefore, in the same form
in article 31, after omission in the original draft article
19, could lead to no inference in support c. of the peti-
tioner’s contention, which indeed proceeds on the fundamen-
tal misconception that article 19(1)(f) and article 31 (1),
which are great constitutional safeguards against State
aggression on private property, are directed against in-
fringements by private individuals for which remedies should
be sought in the ordinary law.
In this view it is unnecessary to deal with certain
other objections to the maintainability of the petition
raised by the Solicitor-General on behalf of the Bank. The
petition is dismissed. We make no order as to costs.
Petition dismissed.
Agent for the respondent: Rajinder narain.