P L D 1957 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑

This batch of appeals, 59 in number, certified by the High Court of Dacca under clause (1) of Article 157 of the Constitution, involves the question whether certain provisions of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951), particularly sections 3 and 37, offend against Articles 5 and 18 of the Constitution and are for that reason void and inoperative. The Act was passed by the Provincial Assembly to provide for acquisition by the State of the interests of rent receivers in East Bengal and to define the law relating to tenancies to be held under the State after such acquisition. By subsection (1) of section 3 the Act enabled the Provincial Government to acquire by notification in the official gazette, with effect from such date as was specified in the notification. all interests of such of the rent‑receivers as were specified[ in that notification, in respect of estates, taluks, tenures, holdings or tenancies in any district, part of a district or local area. Subsection (2) of that section empowered the Govern ment also to acquire in a similar manner all or any of the lands in the khas possession of such rent‑receivers. The rent‑receiver thus expropriated were declared by the Act entitled to receive compensation on their net incomes on a sliding scale, that is to say, the rate of compensation decreasing as income increased. From the date of the notification under subsection (1) all interests of the rent receivers affected were to vest absolutely in the Provincial Government free from all encumbrances, and where lands in the khas possession of a rent‑receiver were acquired he ceased to be entitled to retain possession of such lands except 100 standard bighas or 10 standard bighas per member of his family whichever was greater. The persons who continued to remain in possession of khas lands under the, Act or who were put in possession by the Government to cultivate the lands were all to become State tenants. The Act was extended to the partially excluded area of Mymensingh district with effect from the 16th May 1951, by Notification No. 4342‑L.R., dated the 30th April .1951. As will be shown hereafter the compensation awarded by the Act to the expropriated landlord was not the money equivalent of his interests, but objection to the validity of the Act on the ground that it did not provide for compensa tion or that the compensation provided was inadequate ceased to be cognizable by Courts by reason of the Validation of Laws Act, 1956, passed by the Constituent Assembly on the 28th February and assented to by the Governor‑General on 29th February 1956, which not only amended subsection 4 (A) of S. 299 of the Government of India Act but specifically validated the Act in question with effect from the 16th May 1951, and directed that its own validity was not to be called in question in any Court. Thus immediately before the Constitution Day the impugned Act was valid, whether it provided or did not provide for compensation to the expropriated landlords. The Act was amended by Ordinance III of 1956 pro mulgated by the Governor on 22nd March 1956, but the amendments so made were merely procedural and not to the substance of the Act. The Governor issued another Ordinance on 13th April 1956. Ordinance V of 1956, by which Ordinance III was to be deemed to have been applied with effect from the 22nd of March 1956, to those areas in the district of Mymensingh which were partially excluded areas immediately before the coming into force of the Constitution on the 23rd of March 1956. In exercise of the authority conferred by the Act, the Provincial Government by several notifications acquired the interests of certain rent‑receivers and the lands in their khas possession before the Constitution came into force. On 2nd April 1956, that Government issued further notifications, district‑wise, purporting to acquire the interest of the remaining rent‑receivers under subsection (1) and the lands in their khas possession under subsection (2) of section 3 of the Act, with effect from 14th April 1956. The notifications were in similar terms and were as follows:‑ I.‑For acquisition of rent‑receiving interest. Notification No. 4835‑L. R., dated the 2nd April 1956:‑ "In exercise of the power conferred by subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956, (East Bengal Ordinance No. III of 1956); it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all interests of all rent‑receivers in their respective estates, taluks, tenures, holdings and tenancies situated in the district of including their interests in all sub‑soil and rights to minerals in such estates, taluks, tenures, holdings and tenancies, except the interests and rights which have already been acquired by, and have already vested in, the Provincial Government under the provisions of the said Act." II‑For acquisition of khas lands. Notification No. 4839‑L. R., dated the 2nd April 1956:‑-- "In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951) as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (Last Benga. Ordinance III of 1956), it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all lands in the khas possession of all rent‑receivers situated in the district of other than the classes of lands coming under clauses (a) and (b) of subsection (2) of section 20 and other than such lands as have already been acquired by, and have already vested in, the Provincial Government under the provisions of the said Act." On the 13th of April 1956, 83 petitions for writs of mandamus or in the nature of mandamus were moved in the High Court of Dacca against the Provincial Government of East\Pakistan and the Secretary, Finance and Revenue Department, East Pakistan Secretariat, directing them to withdraw or rescind the notifications that had been issued under subsections (1) and (2) on the 2nd of April 1956. These petitions fell into the following four groups:‑ Group No. 1‑Cases where only rent‑receiving interest had been acquired; Group No. 2‑Cases where both rent‑receiving interest and lands in khas possession had been acquired ; Group No. 3‑Cases where the acquisition included wakf or debutter property; and Group No. 4‑Cases where the property acquired was situated in areas which were partially excluded areas before the Constitution day. The principal attack on the notifications was on the strength of Article 5 of the Constitution which provides that "All citizens are equal before law and are entitled to equal protection of law" and in the case of wakf and debutter property, on that of Article 18 which declares that "Subjects to law, public order and morality (a) every citizen has the right to profess, practise and propagate any religion ; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions." The argument addressed was that section 3 of the Act which enables the Provincial Government to pick and choose rent‑receivers whose interests are to be acquired confers on that Government a naked and arbitrary power which being capable of being used in a discriminatory manner is void by reason of Article 5 which guarantees equal protection of the law to the citizens of the State. The second main argument also was founded on Article 5 and was to the effect that since in the matter of compensation section 37 of the Act draws a distinction between income earning groups of rent‑receivers, the provision is ex facie discriminatory and therefore void. In the case of acquisition of wakf and debutter properties the contention raised was that since the effect of the Act is to transfer the ownership of such properties to the Provincial Government and to dispossess the Mutwallis and Shebaits of possession, the Act destroys, in any case, adversely affects religious institutions and consequently trenches upon the right guaranteed by Article 18 of the Constitution to every citizen to establish, maintain and manage religious institutions in accordance with his religion. There were some other objections to the notifications which will be mentioned and dealt with in their proper place. These petitions, except some, were heard by a Full Bench of three Judges including the Chief Justice, who, on the conclusion of a lengthy argument, delivered their judgement on 7th August 1956, unanimously repelling all the consti tutional objections to the notifications. In the petitions which were directed against the acquisition of lands in the khas possession of managers of wakf and debutter properties, however, rules nisi issued earlier were made absolute on the ground that the notifications contravened the provisions of section 20 of the Act. In Constitutional Civil Appeals Nos. 31 and 55 of 1956, the petitions for writ were heard by a different Bench, consisting of Ispahani and Murshed, JJ., but the decision therein followed the judgement of the Full Bench. Being dissatisfied with the judgment of the High Court and having obtained from that Court a certificate under clause (i) of Article 157 of the Constitution the rent‑receivers have appealed to this Court on the ground that the objections urged by them against the notifications were wrongly decided in the High Court. The appeals are 59 in number and fall in the following categories: 1st Group.‑Where the acquisition of rent‑receiving interests only is questioned : Appeals Nos. 6, 8, 9, 12, 36, 44 and 57 of 1956. 2nd Group.‑Where the acquisition of rent‑receiving interests as well as lands in khas possession is questioned : Appeals Nos. 2, 4, 5, 7, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 21, 25, 26, 27, 29, 30, 32, 33, 35, 37, 38, 39, 40, 41, 42, 43, 45, 48, 49, 50, 51, 52, 54, 55 and 56 of 1956. 3rd Group.‑Where the acquisition of the interests and khan lands of rent‑receivers, part of whose property is situated in the area which was partially excluded area before the Constitution Day, is questioned : Appeals Nos. 46, 47 and 53 of 1956. 4th Group.‑Where the acquisition of rent‑receiving interests in lands held in wakf or debutter is questioned: Appeals Nos. 2‑D, 3‑D, 4‑D, 3, 13, 28, 31, and 34 of 1956. Apart from the contention that the Act is unconstitutional because it enables the Provincial Government to acquire wakf and debutter properties and thus affects the citizens right to establish, maintain and manage religious institutions, the main argument in the case, led by Mr. Das and adopted by counsel in the other appeals, centres round the meaning and application of Article 5 of the Constitution which guarantees to all citizens "equal protection of law". 'The contention is' that sections 3 and 37 of ‑the Act are void, the former because; it confers upon the Provincial Government an arbitrary power to pick for expropriation any rent‑receiver that it likes and can thus lead to discrimination between one rent‑receiver and another, and the latter because it provided different rates of compensation for rent‑receivers with different amounts of net income. To examine the validity of this challenge, it is necessary to have a clear idea of the scope and object of the impugned enactment. The Act has a history which as given in the Statement of Objects and Reasons of the Bill which eventually became the Act is as follows:-- "The majority of the members of the Land Revenue Commission, Bengal, have expressed the view that whatever may have been the justification for the Permanent Settle ment in 1793 it is no longer suited to the condition of the present time and that the Zamindary system has developed so many defects that it has ceased to serve any national interest. They have accordingly commended that the actual cultivators should be brought into direct relation with Government by the acquisition of all rent‑receiving interests in land so that Government as the sole landlord may be in a much better position than any individual private landlord to initiate development measures with a view to improve the conditions of the tillers of the soil and also to ensure the maximum exploitation of the land and water resources of the country. The Bengal Administration Enquiry Com mittee also has recorded its considered opinion that the administrative machinery of Government is being clogged at every turn by the present outmoded system of land tenure and that the earliest possible effect should be given to the recommendations of the Land Revenue Commission. There is also a large volume of public opinion for mending the existing land tenure system and it has been urged that no co‑ordinated plan of agricultural reconstruction of the country can be undertaken so long as the Zamindary system remains. "The recommendations of the Land Revenue Commission remained under the consideration of the Government of Bengal for a considerable length of time and that Govern ment ultimately decided to accept the recommendations of the Commission. With a view to implement this decision a Bill (The Bengal State Acquisition and Tenancy Bill, 1947) was introduced in the last session of the Bengal Legislative Assembly and referred to a Select Committee but no further progress could be made owing to the constitutional changes. "This new Government immediately after it had come into existence took up this question and examined the matter afresh in all its aspects and it has been decided that the recommendations of the Land Revenue Commission should be given effect to in this Province as early as possible. It is also considered necessary that the existing tenancy laws should be suitably amended to provide for the following :‑ (1) after the acquisition of rent‑receiving interests, there should be only one class of tenants under the Government and all such tenants should have occupancy rights and have option to commute the rents of their holdings and become free peasants ; (2) all lands in the khas possession of rent‑receivers and others in excess of certain limits should be acquired by Government with a view to distribute them among tenants with uneconomic holdings, bargadars and landless agricul tural labourers." This object is repeated in the preamble of the Act which recites that the Act was passed because it was considered to be expedient to provide for the acquisition by the state of the interests of rent‑receivers and certain other interests in land in East Bengal and to define the law relating to tenancies to be held under the State after such acquisition and other matters connected therewith. The Act seeks to achieve the desired result by enabling the Provincial Government by section 3 to acquire all interests of such of the rent‑receivers as may be specified in a notification and all interests of all rent‑receivers whose properties are, for the time being, under the ‑management of Court of Wards. That section further makes it lawful for the Provincial Government to acquire b5 a notification all or any of the lands in the khas possession of a rent‑receiver of which he is not entitled to retain possession under section

20. On the acquisition of their interests, the rent‑receivers become entitled to compensation which may be paid in money or in bonds payable in not more than 40 instalments. The rate of compensation is based on u sliding scale, the rate decreasing as the net income of the rent receiver increases. The Act also provides an alternative mode of acquisition. Under section 17 the Provincial Government may, with a view to acquisition under the provisions of the Act of the interests of all rent receivers within any district, part of a district, or local area, and of such other interests in land therein as are liable to be acquired under the provisions of the Act, and with a view to the assessment of compensation payable for all such interests including the interests which have already been acquired under section 3 make an order directing that a record of rights be prepared in respect of such district, part of a district, or local area, or that the record of rights last prepared in respect of such district, part of a district, or local area be revised. When such record of rights is published, the Revenue Officer is required by section 32 to prepare in the prescribed form and in the prescribed manner a Compensation Assessment Roll in which the gross assets and the net incomes of all rent‑receivers within such district, part or area and the compensation to be paid to all persons whose interests have been or are to be acquired, to be specified. On the final publication of such Assessment Roll, subject to certain exceptions, the interests of all the rent‑receivers within the area to which such Roll relates, including their interest in the lands in their khas possession, vest absolutely in the Provincial Government. Section 20 directs that a rent receiver is not to be dispossessed of all the lands in his khas possession and that he is entitled to retain as a tenant under the Provincial Government 100 standard bighas or an area determined by calculating at the rate of 10 standard bighas for each member of his family, whichever is greater. This area has to be allotted by the Revenue Officer according to the choice of the rent‑receiver concerned, if such choice is exercised within the prescribed period. There are the basic provisions of the Act which affect substantive rights of the rent‑receivers, though there are a large number of other provisions, the Act containing as many as 152 sections, which are mostly procedural and devise the machinery to be used for the elimination of all rent‑receiving interests and for making the tillers of the soil, who are to be known as raiyats, tenants under the Provincial Government, cultivating themselves or with the assistance of members of their families and servants, holdings of reasonable extent in which they acquire occupancy rights. The challenge to the constitutionality of section 3 is founded on its terms which empower the Provincial Govern ment to acquire the interest of any rent‑receiver that it like. It is contended that on the words of that section the Provincial Government has an unqualified power not only to pick any district, part of a district, or local area for the operation of the Act, but also to pick any rent‑receiver in any such area for expropriation and that for that reason the section is ex facie discriminatory and denies the equal protection of the law to the rent‑receiver or rent‑receivers so chosen. The general proposition urged is that wherever a law confers on a body or a single functionary an arbitrary power to take some action which affects a person's rights, the law is void because the power is capable of being exercised in discriminatory manner which is inconsistent with the constitutional guarantee in Article 5 that "All citizens are equal before law and are entitled to equal protection of law". This argument is sought to be supported by some decisions of the Supreme Court of the United States of America which have been followed in India. The American cases on which special emphasis has been laid by Mr. Das are Yick Wo v. Peter Hopkins (U. S. Supreme Court Rep. 30 Lawyer's Ed. 220), Wo Lee v. Peter Hopkins (U. S. Supreme Court Rep. 41 Lawyer's Ed. 256) and Homer Adolph Plessy v. John H. Ferguson (U. S. Supreme Court Rep. 41 Lawyer's Ed. 256). Among the Indian decisions cited are Sir Kameshwar Singh v. The State of Bihar (I L R 30 Pat. 454) and M/s. Dwarka Prasad v. The State of Uttar Pradesh and others (AIR 1954 S C 224). Yick Wo's is a leading case on the Fourteenth Amendment to the Constitution of the United States, and its import has been differently understood by different writers on Constitu tional Law and in subsequent cases. In order to comprehend the ratio decidendi of that case and the constitutional principles that were involved in its decision, it is necessary to refer to certain Articles of the United States Constitution and to compare them with the corresponding Articles of our own Constitution and the India Constitution. These are as follows: Article 14 of the Amendments to the U. S. Constitution "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or amenities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." Article 5 of our Constitution "(1) All citizens are equal before law and are entitled to equal protection of law." Article 14 of the Constitution of India: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It will be noticed that the United States Constitution does not at all use the expression "equality before the law", the reason being that this phrase as distinguished from the "equal protection of the laws" had not received any definite constitutional recognition when the 14th Amendment to the Constitution of the United States was passes. The expression, which seems to have been borrowed by India from the Constitution of Eire and that of West Germany, was first used by Dicey, the celebrated English Constitutional writer, as one of the three aspects of his doctrine of the Rule of Law, long after the United States Constitution and the Fourteenth Amend ment to it were adopted. As propounded by him the theory of "equality before the law" means that no man is above the law, but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In other words, that every official is under the same responsibility for every act done without legal justification as any other citizen, and if he commits a tort, he is liable for it in the ordinary Civil Courts. Mr. Das did not enlighten us as to the precise distinc tion between "equality before the law" and "equal protection of the law", if there was any, and on being specifically ques tioned whether he relied on the guarantee contained in the declaration that "All citizens are equal before law" he stated that he was not invoking this part of the declaration in support of his case. I now proceed to deduce the principle underlying the decision of the Supreme Court in Vick Wo's case and to examine its application to the present case. The report of that case shows that there were two appeals before the Supreme Court, one by Yick Wo as plaintiff‑in‑error whose petition for a writ of hebeas corpus had failed before the Supreme Court of California; and the other by Wo Lee from the decision of the Federal Circuit Court for the district which: had dismissed his application for a writ of hebeas corpus. Section 1 of Order 1569 passed by the people of the City and County of San Francisco had provided that it was "unlawful, from and after the passage of this order, for any person or Oersons to establish, maintain, or carry on business of laundry within the corporate limits of the City and County of San Francisco, without having first obtained the consent of the Board of Supervisors, unless the business was "located in a building constructed either of brick or stone." The plaintiff‑in‑error who was a native of China was carrying on laundry business in a building constructed of wood in the City of San Francisco. His city licence having expired on 1st October 1885, he applied to the Board of Supervisors for their consent to maintain and carry on his laundry. The consent was refused, but he continued carrying on his business in the same building. He was therefore found guilty of violation of the Ordinance, and was adjudged to be imprisoned an the County jail, the violation charged and proved against him being that he had carried on laundry business without the consent of the Board of Supervisors in a building which was not constructed either of brick or stone. He applied to the Supreme Court of California for a writ of habeas corpus on the ground that the Ordinance for the violation of which he had been imprisoned was void and that it had been applied to him in a discriminatory manner. The State Supreme Court held that the power discriminatory to the Board of Supervisors to withhold consent was in the nature of a discretion, usually conferred on the Supervisors in such cases, to be exercised in reference to the circumstances of each case, with a view to the protection of the public against the dangers of fire, and that therefore the Ordinance was not void. In Wo Lee's case, however, which was similar to Yick Wo's case, the Circuit Judge took a different view of the ‑Ordinance, expressing the opinion that the execution of the Ordinance had the effect of confiscating a large amount of property invested by the Chinese in laundry business and that therefore the appellant should be held to have been deprived of his property without due process of law. The Judge further thought that the purpose behind the Ordinance being to drive out the Chinese laundrymen and not merely to regulate the business for the public safety, the facts clearly disclosed a case of discrimi nation and therefore of violation of the highly important rights secured by the equal protection of the laws clause of Fourteenth Amendments Nevertheless the Judge discharged the writ in deference to the decision of the Supreme Court of California in Yick Wo's case. One of the questions before the United States Supreme Court was whether the view of the Ordinance taken by the Supreme Court of Chalifornia that it did not more than confer on the Board of Supervisors a ‑discretion to granting or with holding their assent to the use of wooden buildings as laundries, to be exercised in reference t o the circumstances of each case with a view to the protection of the public against the danger of fire, was correct, and if not, what was the true construction of the Ordinance, because if the Ordinance had been rightly construed by the Supreme Court of the State, the legislation could not be held to be invalid. Discussing this question Mr. Justice Methews who delivered the opinion of the Court said: "We are consequently constrained, at the outset, to differ from the Supreme Court of California upon the real meaning of the Ordinances in question. That Court considered these Ordinances as vesting in the Board of Supervisors a not usual discretion in granting or withholding their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case, with a view to the protection of the public against the dangers of fire. We are not able to concur in that interpretation of the power conferred upon Supervisors. There is nothing in the Ordinances which points to such a regulation of the business of keeping and conducting laundries: They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the Supervisors to the prosecution of his business apply for redress by the judicial process of mandamus to require the Supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their, assent without reason and without responsibility. The power given to them is not confined to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint. "The Ordinance drawn in question in the present case is of a very different character. It does not prescribe a rule and conditions, for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. It allows without restriction the use for such purposes of buildings of bricks or stone ; but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners and occupiers into two classes, not having respect to their personal character and qualifications for the business, the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the Supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure. And both classes are alike only in this; that they are tenants‑at‑will under the Supervisors, of their means of living. The Ordinance therefore, also differs from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for the sale of spirituous liquors and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the effect of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature." Dealing with the contention that the, Ordinance in question was void on its face, the learned Judge in a passage which has almost become classical in the history of Constitutional Law in the United States thus stated the principle on which statutes if they confer an unguided, uncontrolled and arbitrary power on public officers or bodies are adjudged void: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom "all government exists and acts. And the law is the defini tion and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and, in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law, which are the monuments showing the victorious progress of the race in securing to men the blessings of civilisation under the reign of just and equal laws, so that, in the famous language of the Massachusettes Bill of Rights, the Government of the Commonwealth may be a Government of laws and not of men. For, the very idea that one may be compelled to hold his, life, or the means of living, or any material right essential to be enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Approvingly citing the case of Baltimore v. Radecke (49 Md. 217) where a statute was declared to be unconstitutional on a similar ground the learned Judge observed: "And a similar question, very pertinent to the one in the present cases, was decided by the Court of Appeal of Maryland, in the case of Baltimore v. Radecke. In that case the defendant had erected and used a steam engine, in the prosecution of his business as carpenter and box‑maker in the city of Baltimore, under a permit from the Mayor and City Council, which contained a condition that the engine was to be removed after 6 months' notice to that effect from the Mayor. After such notice and refusal to conform to it, a suit was instituted to recover the penalty provided by the Ordinance, to restrain the prosecution of which a bill in equity was filed. The Court holding the opinion that `there may be a case in which an Ordinance, `passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive, or partial, asp raise the presumption that the legislature never intended to confer the power to pass it, and to justify the Courts in interfering and, setting it aside as a plain abuse of authority', it pro ceeds to speak, with regard to the Ordinance in question, in relation to the use of steam engine, as follows: "It does not process to prescribe regulations for their construction, location, or use in order to require such precautions and safeguards to be provided by those who own and use them as are best calculated to render them less dangerous to life and property ; nor does it restrain their use in box factories and other similar establishments within certain defined limits, nor in any other way attempts to promote their safety and security without destroying their usefulness. But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the city of Baltimore, to cease to do so, and by providing compulsory fines for every day's disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the Ordinance to guide or control his action. It lays down n o rules by which its impartial execution can be secured or partiality and oppression prevented. It is clear that giving and enforcing of these notices, may, and quite likely will, bring ruin to the business of those against whom they are directed, while others from whom they are withheld, may be actually benefited by what is thus done to their neighbours ; and when we remember that this action or non‑action may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives easy of concealment and difficult to be detected and expo sed, it becomes unnecessary to suggest or comment upon the injustices capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an Ordinance which clothes a single individual with such power hardly falls within the domain of law and we are constrained to pronounce it inoperative and void." I have liberally quoted from the judgment of Mr. Justice Mathews not only with a view to examining Mr. Brohi's asser tion that these observations of the learned Judge are to be read as referring to the due‑process part of the Fourteenth Amendment but in order to bring out one of the basic principles in the American Constitutional Law that a statute is void if it confers upon a body or individual not what is called "dis cretion" which is liable to be controlled by judicial process but an arbitrary power not circumscribed or limited by any statutory directions. The American system abhors nothing more than such power because its conferment makes the administration of the statute depend not on law but on the will of the particular body or individual and thus brings the affected sphere of government within the meaning of Govern ment of men and not of law". A statutory provision conferring such arbitrary powers is itself outside the domain of law and is tolerated by Courts only where what is conferred is not power but "discretion". A similar situation arises where the legislature delegates its own functions to another body or individual by conferring on the delegate unlimited powers of rule‑making and omitting to define the policy or object to carry out which rules have to be framed. In view of the clear terms in which the principle was enunciated, the Supreme Court would probably have held the Ordinance to be void, but it is perfectly clear from the report of the case that it did not do so. The ground on which the judgment was based was different, namely that the actual administration of the Ordinance had been carried on in an oppressive and clearly discriminatory manner adversely affecting the liberty and property of only one class of people who, though foreigners, were entitled to equal protection of the laws under the Fourteenth Amendment. This seems to me to be quite clear from the concluding portion of the judgment in that case. After referring to the dictum of Mr. Justice Miller in the case of Baltimore v. Radecke, Mr. Justice Mathews proceeded to conclude as follows: "This conclusion, and the reasoning on which it is based, are deductions from the face of the Ordinance, as to its necessary tendency and ultimate actual operation. In the present cases, we are not obliged to reason from the pro bable to the actual and pass upon the validity of the Ordinance complained of, as tried merely by the opportu nities which terms afford, of unequal and unjust discrimi nation in their administration. For the cases present the Ordinance in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the Ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the 14th Amendment to the Constitution of the United States. Though the law itself be fair on its face and impar tial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibi tion of the Constitution. "The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both peti tioners have complied with every requisite, deemed by the law or by the public officers charged with its administration necessary for the protection of neighbouring property from fire, or as a precaution against injury to the public health. No reason, whatever, except the will of the Supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupa tion, on which they depend for a livelihood. And while this consent of the Supervisors is withheld from them and from 200 others who have also petitioned, all of whom happened to be Chinese subjects, 80 others, not Chinese subjects, are permitted, to carry on the same business under similar conditions. The effect of this discrimation is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hosti lity to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the 14th Amendment of the Constitution". The present appeals do not, therefore, come within the ratio decidendi of Yick Wo v. Peter Hopkins, (U. S. Supreme Court Reports, 30 Lawyers Ed. 220) because it is not contended that in the matter of acquisition in the cases before us there has in point of fact been any discrimination. I have already stated that all rent‑receiving interests through out the Province were acquired by district‑wise notifications of the same date. So far therefore as acquisition itself Is concerned, the appellants have no ground to complain of discrimination, for they are not in a position to assert, and have not asserted, that while the rent‑receiving interests of certain persons have been acquired, other rent‑receivers have not been touched. It is for this reason that Mr. Das relies on those dicta in the judgment of Mr. Justice Mathews where he was inclined to hold as unconstitutional, though he did not actually do so, the conferment of arbitrary power on a single individual or a body charged with the administration of a statute. The actual decision in Yick Wo proceeds on the assumption that even where the law itself is fair on its face and impartial in appearance, if it is applied and administered with an evil eye and an unequal hand, the action taken under it will not be sustained by a Court. The next case cited by Mr. Das is Homer Adolph Plessy v. John H. Ferguson (U. S. Supreme Court Reports, 41 Lawyers Ed. 256). This case has been relied on to support the contention that the Ordinance impugned in Yick Wo's case was actually held by the Supreme Court to be void. The question in Homer Adolph Plessy's case was whether a law which required the separation of the white and the coloured races in public conveyances was outside the prohibition against discrimination in the Fourteenth Amend ment. The Supreme Court held that such law was a reasonable exercise of the police power of a State and therefore valid. Repelling counsel's argument that if such a law were held valid other laws which might require separate cars to be provided for people whose hair was of a certain colour or requiring coloured people to walk upon one side of the, street and white people upon the other, or requiring white men's houses to be painted white and coloured men's black, or their vehicles or business centres to be of different colours, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one colour is as good as one of another colour, Mr. Justice Brown who delivered the opinion of the Court said: "The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus in Yick Wo v. Hopkins, (118, U. S. 356), it was held by this Court that a Municipal Ordinance of the city of San Francisco to regulate the carrying on of public laundries within the limits of the Municipality violate the provisions of the Constitution of the United States if it conferred upon the Municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the Municipality to make an arbitrary and unjust discrimina tion against the Chinese race. While this was the case of a Municipal Ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power." It seems to me that these observations of the learned Judge were based not on the opinion of Mr. Justice Mathews or anything said by him, but on the observations of the Circuit Judge who had held that the Ordinances were pro mulgated with the intention of driving out the Chinese from the laundry business. In the Ordinance questioned in that case there was nothing to show that it had not been promulgated in good faith for the promotion of the public good but had been enacted for the annoyance or oppression of a particular class. It was the administration of that Ordinance which was held to offend against the "equal protection of the laws" clause, the Court holding that even if a law be fair on its face, its administration may be carried on in such a discriminatory manner as to bring the action of the officials charged with its adminis tration within the prohibition of that clause. I am, therefore, unable to agree with the conclusion that Mr. Justice Mathews in Yick Wo's case actually held the Ordinance as violative of the provisions of the Constitution of United States because it conferred upon the Municipal authorities an arbit rary power. Among the Indian cases cited by Mr. Das on this part of the argument is the Patna case, Kameshwar Sing v. The State, (I L R 30 Pat. 454) argued by Mr. Das himself in which two of the three Judges constituting a Special Bench held section 3 of the Bihar Land Reforms Act, 1950, to be unconstitutional because that section like section 3 of the Act questioned in the present cases conferred on the State government an absolute discretion in taking action under the Act against particular proprietors. The Bihar Act was held to be invalid on certain other grounds as well, but after the decision of the Patna High Court and before an appeal from that decision to the Supreme Court was decided, the Indian Constitution was amended by inserting in it the following Article: "31‑A (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights thereunder or for the extinguishments or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part." By reason of this express provision which shuts out all objections to the constitutionality of an Act on the ground that it adversely affects any of the rights conferred by that Part of the Indian Constitution which defines Fundamental Rights, the question whether section 3 of the Bihar Land Re forms Act was or was not void on the ground that it conferred an absolute discretion on the State Government to acquire the interest of any proprietor was not mooted before or decided by the Supreme Court. The last case cited by Mr. Das to strengthen his attack on section 3 is the decision of the Supreme Court of India in Messrs Dwarka Prasad Laximi Narain v. State of Uttar Pradesh and others (A I R 1954 S C 224), in which it was held that clause 4 (3) of the Coal Control Order which conferred on the Licensing Authority absolute power to grant or refuse to grant, renew or refuse to renew, suspend to revoke, cancel or modify any licence under that order, was void inasmuch as it imposed an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19 (1) (g) of the Constitution and did not come within the protection afforded by clause (vi) of that Article. The decision in this case as well as in the Patna case already cited was based on the Amercian precedent in Yick Wo's case, and Mr. Brohi, learned counsel for the respondent, argues that the American cases in which a statute conferring absolute power or discretion on a Board or a single individual have been held to be void are really cases under the "due process of law "part of the Fourteenth or Fifth Amendment and that to this category also belongs the case of Yick Wo in so far as the observations in it relate to the conferment of an unqualified power on a body or individual. The Circuit Judge whose opinion was approved by the Supreme Court of United States in that case had expressly stated that the commitment of unrestricted powers to a functionary required to administer a statute offended against the "due process clause" of the Fourteenth Amend ment, and Willoughby, the well‑known constitutional writer on American Constitution, takes the same view of that case at page 1931 of the second edition of `Constitutional Law'. If the judgment in Yick Wo's case is carefully read it will be found that the whole of it, except the last three para graphs which contain the ratio decidendi, would have been relevant if the constitutionality of the Ordinance in question in that case had been alleged to follow from the "due process of law "part of the Fourteenth Amendment. In England the doctrine of due process of law was intended to provide protection to the individual from arbit rary, action on the part of the Crown, but in the United States the scope of the doctrine has been gradually extended to secure the citizen not only against the arbitrary exercise of governmental powers but against such exercise of legislative power. Many instances are therefore to be found in the States where statutes have been held unconstitutional on the ground that they vested in an administrative official or board an arbitrary powers or discretion to interfere with an individual's rights relating to his life, liberty and property or came in conflict with established principles of private rights and distributive justice. Relying on this principle peculiar to the Constitutional Law of the United States, Mr. Brohi contends that in the present case the statute is not being attacked on the ground that it permits the acquisition of property without due process of law, but for the reason that it is capable of being so administered as to discriminate between one rent‑receiver and another, and that therefore it is not sufficient for the appellants merely to show that the statute is capable of being so used but they must further establish that it has in fact been used in that manner. There is considerable force in this contention because our Constitution does not use and could not have used the due process of law clause in guaranteeing primary rights in the sense in which that clause has been interpreted by the Supreme Court of the United States. That Court has scrupulously avoided giving an exact definition of "due process of law", and all that can be gathered from the leading decisions on the subject is that no law can be said to be in accord with "due process of law" if it contravenes certain basic principles of justice and liberty, which are above the law that may be made by the Congress or by a State Legislature. Whether this interpretation of due process of law has been taken by the Supreme Court from the pre‑Revolution political philosophy of France or from the writings of the English Philosopher Lock or from the dictum of Lord Coke that the principles of Common Law are above the legislative competency of the Parliament, the fact remains that that Court, irrespective of limitations as to subject, has been consistently declaring Federal and State legislation void, if the legislature has acted unreasonably or in contravention of those fundamental principles on which American civil and political institutions are founded. It is thus obvious that in determining the constitutionality or otherwise of statutes in Pakistan we cannot have that approach to the question because there is no provision in our Constitution which is capable of such a flexible and varying meaning as the due process of law part of the Fifth and the Fourteenth Amendments. Accordingly the issue that has to be decided in the present case is whether the guarantee of the equal protection of the laws forbids the legislature from giving to the Provincial Government the powers that section 3 of the impunged Act actually does If the provisions of that Act arc examined in the light of the history of the Act, it appears to be perfectly clear thaw the intention was to eliminate all rent‑receiving interests in all the lands in the Province and to create a uniform class of tenants directly under the Provincial Government In order to attain that purpose section 3 gave to the Pro vincial Government the power or discretion to acquire simultaneously or from time to time as was considered to be expedient the interests which had been decided upon to be terminated. The conferment of this kind of discretion cannot be held to be void, though the action taken in exercise of that power if it is unjust, oppressive and partial may be called in question on the ground that the person or persons less favourably treated have been denied the equal protection of the law. The editors of American Juris prudence thus sum up at p. 174, Vol. 12, of that publication the result of case‑law on the question whether mere con ferment of discretion the exercise of which may lead to classification is unconstitutional:‑

"One class of cases in which the basis of classification approaches perilously near the point of arbitrary decision and which nevertheless has been sustained by the Courts as not denying the equal protection of the laws consists of those in which certain instances the choice of a legislative body or of an administrative officer to whom a matter is committed is the sole basis of the classification. The common examples are cases where the power exists to limit the number of persons who may carry on a certain business or the places where it may be carried on. It is clear in some cases the public welfare may require such a limitation and that therefore power to make it necessarily resides in the legislative body. When this is so, power to choose the persons or places must also exist. From a consideration of cases of this type the conclusion seems to be inevitable that a classification may properly be made on the basis of the choice or selection of the legislative body or of administrative officers to whom the matter is committed. It is not to be presumed in such cases that the choice or selection is made in the one instance or authorized to be made in the other without regard to such considerations as may be relevant thereto; in fact, it may be so made and yet this will have no effect upon the validity of classificaion." The rule is similarly stated by Willis in his 1936 edition of Constitutional Law at p.

586. The learned author says :‑ "Is it proper classificaticn to put in one class those who get the consent of a Board or of an official and into another class those who do not, where no standard is set up to control the action of the Board or official ? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred. If this is the correct position, the only question that would then arise would be the delegation of legislative power. If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the dele gation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not power delegated has been exercised arbitrarily." The Act challenged in these cases is not discriminatory on the face of it because it does no more than empower the Provincial Government to acquire the interests of such rent receivers as may be specified in the notification in any district, part of a district or local area, and the Provincial Government could, as it has actually done so far as the present, appellants are concerned, acquire the interests of all rent‑ c receivers throughout the Province at one and the same time, and if the law be, as I think it is, that in cases where a statute is not ex facie discriminatory, but is capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner, the appellants' case must fail because the acquisition challenged is not piecemeal but wholesale, and nobody can have any occasion to complain that he or the class to which he belongs has been singled out for a discriminatory treatment. Mr. Das was not able to cite any precedent in support of his assertion that where a statute on the face of it was not discriminatory and could have been applied in an impartial manner, the Court declared it to be invalid on the mere ground that the authorities charged with its administration could have administered it in a partial and unfair manner, and in the absence of any proof that it was in fact adminis tered in such manner. It must, accordingly, be held that because there is no allegation in any of the appeals that section 3 of the Act has in fact been applied discriminately, the action taken cannot be called in question on the ground that the Provincial Government, if it had been so inclined, could have picked and chosen any particular class or section of rent‑receivers for expropriation. We are now in position to examine the validity of Mr. Das's attack on section 37 on the ground that it constitutes an infraction of the equality provision of the Constitution because it discriminates between one rent‑receiver and another on the basis of total income. I have mentioned above that by that section the amount of compensation to be given to expropriated rent‑receivers is made to depend on their net incomes, the rate of compensation progressively decreasing as annual net income increases, until when the annual net income amounts to Rs. 100, 00, the rent‑receiver is only entitled to twice the amount of his annual net income or the maximum amount admissible under the immediately preceding grade increased by the excess of the net annual income over that grade, whichever is greater. The argument advanced is that neither any reasonable basis for this classi fication of rent‑receivers for purposes of compensation is stated in the Act, nor is such classification naturally referable to the objects of the Act. Mr. Brohi's reply to this argument is that by reason of clause 3 (a) of Article 15 of the Constitution the appellants are precluded from questioning the validity of the Act on this ground. This contention was also raised before the High Court, but it did not appeal to that Court. It is, therefore, necessary to examine whether this point has any substance. The relevant part of Article 15 is as follows:‑ 15 (1) "No person shall be deprived of his property save in accordance with law; (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation there for and either fixes the amount of compensation or specifies the principles on which and the manner in which com pensation is to be determined and given; (3) Nothing in this Article shall affect the validity of‑ (a) any existing law." It is clear from the terms of this Article that property can be compulsorily acquired by the Government only for a public purpose and under a law which provides for compen sation. Besides the necessity of the existence of a public purpose the Article imposes on acquisition the further condition that the law under which acquisition is made must either itself fix the amount of compensation or state the principles on which and the manner in which compensation is to be determined and given. It is not disputed by Mr. Brohi, and it appears to me to be otherwise plain, that the word 'compensation' here is used in the sense in which it is used in the law relating to the exercise of the power of eminent domain, namely, as meaning the market value of the D property acquired. While defining compensation Nichols in his book "Eminent Domain", 1950 Edition, Vol. I, states at pp. 28‑29: "'Compensation' as used in the constitutional provision as a limitation upon the power of eminent domain, implies a full and complete equivalent (usually monetary) for the loss sustained by the owner whose land has been taken or damaged. "Many of the State constitutions require that the com pensation shall be 'just', 'reasonable' or 'adequate', but these words are mere epithets rather than qualifications and add nothing to the meaning. The phrase 'just compensation' means the value of the land taken and the damage, if any, to land not taken. More than this it does not imply. The adjective 'just' only emphasises what would be true if omitted,‑namely, that the compensation should be the equivalent of the property." This being the meaning of `compensation' it has to be admitted that the Act in question is essentially a confiscatory enactment because taking a man's property by paying him, say twice the annual net income of that property, cannot possibly be held to be an acquisition for compensation. If, therefore, the Act had been passed after the Constitution came into force, it would undoubtedly have been uncon stitutional; but our Constitution‑makers in their wisdom and for reasons best known to them decided to provide in the Constitution that whereas no property could in future be acquired without compensation, the acquisition laws that had already been passed, however practical, were not to be called in question on the ground of want or inadequacy of compensation. They did this by declaring in clause (3) of Article 15 that neither the condition of public purpose, nor that of compensation, including the condition that the law under which acquisition is made must fix the amount of compensation or define the principles on which com pensation has to be determined, was to be applicable to any "existing law". The Constituent Assembly which framed the Constitution seems to have been particularly anxious to save the impugned Act from attack because though the Act could not be held to be valid under section 299 of the Government of India Act, 1935, that Assembly by the Valida tion of Laws Act, 1956, not only amended section 299, but made an express provision that certain enactments including the present Act were not to be called in question in any Court. The Constitution kept the Act, like other similar laws, alive and excluded any possible attack on it on the ground of want or inadequacy of compensation by providing that existing laws relating to compulsory acquisition of land were not to be affected by clause (2) of Article 15 which had made the payment of compensation a necessary condition of compulsory acquisition. Though the words which save this Act are "Nothing in this Article", Mr. Brohi has gone to the extent of contending that no attack on the validity of the Act can be made even on the ground that the Act is discriminatory. I find it difficult to agree with Mr. Brohi in this part of the argument for the simple reason that if the Act had been discriminatory in the matter of acquisition and not merely in the assessment of compensation it could not have survived a well‑directed attack based on the words of Article 5 of the Constitution. Suppose, for instance, the Act had expressly provided that only the land of rent receivers belonging to a particular community were to be acquired, the acquisition in that case would certainly have been invalid by reason of the equality clause of the Consti tution. I cannot therefore accept the proposition that an attack on the Act on the ground of discrimination could not have been successful, if apart from the discrimination in compensation the Act had been discriminatory in its acquisitive aspect itself. This argument of Mr. Brohi is connected with, perhaps is the result of, the other contention that the equal protection clause is not applicable to the sphere of eminent domain, urged by him on the strength of the following passage at p. 598 of Constitutional Law by Willis:‑ "The problem of classification is not so important for eminent domain as it is for police power and taxation, and yet, the problem arises even in the case of eminent domain. Ordinarily in taking property the Government or any one whom the Government can authorize to take may take just that property which is needed for a public use, and the question whether this property instead of other property should be taken does not arise. However, there is a possibility that such a question might be raised." The learned author does not categorically state that no question of discrimination can arise in eminent domain. On the other hand, he expressly recognizes the possibility of such a question arising in that sphere of State activity. In this very case, for instance, the object of the Act being to eliminate all rent‑receivers' interests by acquiring their land, if the Provincial Government had acquired the lands of only a few specified and not all rent‑receivers or had restricted the operation of the Act only to particular areas or communities, I have not the slightest doubt that such action would have been invalid by reason of the "equal protection of laws" clause. But despite what I have just said there is force in the argument of Mr. Brohi that the essential nature of the appellants' objection to the acquisition is the inadequacy of compensation, and this objection seems to me not to be open to persons who have been expropriated under the existing laws. The "equal protection" clause applies only where unequal treatment has not been recognised by the Consti tution. I have given my reasons for the view that the impugned Act is a confiscating enactment inasmuch as it does not provide what is called compensation to the expropriated rent‑receivers and is clearly discriminatory in the matter of compensation. This broad feature of the Act must have been fully present to the minds of the Constitution‑makers when they inserted in Article 15 the provision that "Nothing in this Article shall affect the validity of any excising law". If being fully cognizant of this discriminatory character of the Act, they for reasons better known to them decided to protect the Act, they must be deemed to have affirmed its discriminatory provisions. Thus inequality in the matter of compensation having been recognised by Article 15, no equality in that matter can be claimed under the general provisions of Article

5. It is not contended in the present case that the acquisition was not for a public purpose; all that is complained of is that some of the appellants have received less than they should have received if no discrimination had been observed and compensation had been paid in full. The essence of the objection, therefore, in the inadequacy of compensation and this complaint the Court is expressly prohibited from entertaining by the Constitution. Mr. Das has urged that in order to bar an objection to the constitutionality of the Act on the ground of inadequacy of compensation, the case contemplated by Article 15 is that of a single person considered by himself, and that an objection to an enactment under Article 5 necessarily proceeds on a comparison of the aggrieved party with other persons in his situation. In my opinion, this is not an invariable distinction between the two Articles; nor is the latter circumstance alone sufficient to cause an objection cease to be an objection to the adequacy of compensation because a person who does not receive due compensation cannot be held not to complain of want of inadequacy of compensation when what he says is "Others have received more, I have received less", irrespective of whether what others have received is or is not due com pensation. I am, therefore, of the view that equality in the matter of compensation having been disallowed by Article 15 to the persons affected by the Act they cannot invoke the "equal protection of the law" clause in an endeavour to obtain a declaration as to the invalidity of the Act. I recognise that Mr. Das succeeded on this part of the case in the Patna High Court, but I consider that the correct approach to this question is to be found in the decision of the Allahabad High Court in Rajasurayapal Singh v. The U. P. Government (A I R 1951 All. 674) decided by a Full Bench of five Judges. There are also certain observations to a similar effect by Das, J in the decision of the Supreme Court of India at p. 980 of the report of Kameshwar Singh's case in (1952 S C R 889). Even if it be assumed that this objection is open to the appellants, I have little doubt in holding that the classification of rent‑receivers adopted by the Act is justified. I do not base this opinion on Article 29 of the Constitutions which states one of the directive principles of State policy to be :‑ "(2) to secure the well‑being of the people, irrespective of caste, creed or race, by raising the standard of living of the common man, by preventing the concentration of wealth and means of production and distribution in the hands of a few to be the detriment of the interest of the common man, and by ensuring equitable adjustment of rights between employers and employees and landlords and tenants." because the Act we are concerned with is a pre‑Constitution enactment and was not passed in furtherance of the policy outlined in Article 29, but on the general ground that if the legislature once decides to abolish the system of private landlordism in agricultural land and the resources of the State are not sufficient to compensate the outgoing landlords, some means for the rehabilitation of the expropriated landlords have to be devised, and if in its anxiety to rehabilitate such landlords the legislature takes into con sideration the net incomes of the persons whom it is intended to set on their feet, the classification based on such considerations must be considered to be a necessary result of bringing the expropriating provisions of the Act into action. Whatever also the expression "equal protection of law" may means, it certainly does not mean equality of operation of legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the H Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoy ment of life, liberty and property. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has vet been formulated by the Supreme Court as to what may be regarded as a denial of the "equal protection of the laws" that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwith standing the disinclination of the Court to give an all‑inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generali zation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the, relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences ins race, colour or religion will certainly be rejected by they Courts. Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rent for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriation was a necessary and not an unreasonable classification. In their attack on the validity of acquisition of rent receiving interests where the land was held under wakf. wakf‑alai‑aulad or debutter, learned counsel for the appellants in cases where such property has been acquired have relied on the principle according to which ownership of wakf property, according to Muslim Law, vests in the Almighty, and in cases of debutter, according to Hindu Law, in the deity, the Mutawalli in the former case and the Shebait in the latter not being a trustee, but a mere superintendent or manager Under clause (23) of section 2 of the Act, a "rent‑receiver" means a proprietor or a tenure‑holder, and in cludes r. raiyat and under raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands as have been let out, together with any building standing thereon and necessary adjuncts thereof, otherwise than in perpetuity. The 20th clause of the same section defines a "proprietor" as a person owning whether in trust or for his own benefit, an estate or a part of an estate. The argument advanced on behalf of this set of appellants is that because a Mutwalli or a Shebait does not own either in trust or for his benefit the property dedicated he is not a proprietor within the meaning of this clause and therefore not a rent‑receiver within the definition of clause (23). Mr. Ray relies on the decision of the King's Bench Division in Jobbins v. Middlesex County Council (L R 1949, J K B 142) in support of the proposition that since the legislature has defined a rent‑receiver, and that definition is not applicable to Mutwallis or Shebaits, the subsequent sections of the Act which permit the acquisition of interests in land which are held under wakf or debutter are invalid. The case relied on states no general principle, and in fact it is against Mr. Ray's contention. because it was held therein that in case of apparent conflict between an interpretation clause and the operative provisions of an Act the latter override the former. The question to be determined in the present cases is: what is the true meaning of the words used by the legislature and whether the acquisitions challenged were intended to fall within the expropriating provisions of the Act? It may be conceded that neither a Mutwalli nor a Shebait is a trustee in the English sense of the term but the word "trust" in clause 20 of section 3 of the Act does not appear to have been used in its technical sense but in its ordinary sense and is wide enough to include the case of a Mutwalli or a Shebait who does not hold the property for his own benefit, but for the benefit of a religious or charitable institution, the word "owning" in the clause being equivalent to "holding". This seems to be perfectly clear from the subsequent provisions of the Act which expressly provide for the acquisition of rent receiving interests in estates which are held under wakf or debutter. The next objection to the acquisition of such lands is founded on Article 18 of the Constitution which provides that "subject to law, public order and morality (a) every citizen has the right to profess, practise and propagate any religion; and (b) every religious denomination and every sect thereof has the right" to establish, maintain and manage its religious institutions". The point sought to be made is that the acquisition of wakf or debutter lands which the Act permits interferes with the rights of Muslim citizens in the case of wakf and Hindu citizens in the case of debutter to establish, maintain and manage their religious institutions. With a view to determining whether the Act infringes the fundamental right guaranteed by Artical 18 of the Constitution, it is necessary to examine the relevant provisions of the Act in so far as they relate to the acquisition of rent‑receiving interest in such estates and the dispossession of persons whose duty under their personal law is to maintain and manage the religious institutions with the income of such properties. As I have held that a Mutwalli or a Shebait is included in the definition of the word "proprietor" it follows that he is also a rent‑receiver within the meaning of clause (23) of section 2 Now on the making of a notification under subsection (1) of section 3 all the interests of rent‑receivers who fall in this category vest absolutely in the Provincial Government, that is to say, by operation of the Act this class of rent‑receivers is divested of their interests in the land which, whether they vested in the Almighty or a deity or for the purposes of the Act in the Mutwalli or the Shebait, are from the date of the notification transferred absolutely to the Provincial Govern ment. And under subsection (5) of section 3 the outgoing Mutwalli or Shebait becomes entitled to compensation as provided in the Act. Subsection (3) of section 37 directs that where the net income or any portion of the net income in respect of any estate, tenure, holding or tenancy wholly or partly held under wakf, wakf‑alai‑aulad, debutter, or any other trust or legal obligation has been dedicated ' and applied exclusively to charitable or religious purposes without any reservation of pecuniary benefit for any individual, the com pensation payable for the acquisition of the interests of any rent‑receiver in respect of the net income or the portion of the net income so dedicated and applied shall, instead of being assessed under clause (1), be assessed in the prescribed manner as a perpetual annuity, equal to such net income or portion of the net income, as the case may be. Thus the first effect of the acquisition of wakf or debutter property is that while the Provincial Government becomes the owner of the corpus of the property, the Mutwalli or the Shebait becomes entitled to an annuity equal to the net income or a portion of the net income of the property. This, however, is subject to the important qualification that the net income or portion of the net income of the estate must not only have been dedicated but exclusively applied to charitable or religious purposes and without any reservation of pecuniary benefit for any individual. From this two further consequences follow. First, the pecuniary benefit which may have been reserved by the creator of the wakf for his descendants, or for himself as under the Hanfi Law, is completely wiped out; and second, a mere breach of trust by the Mutwalli or the Shebait is not applying as directed by the dedicator the income of the property to religious or charitable purposes causes the income so misappropriated to cease to be available for such purposes. Thus wakf‑alal‑aulad are directly hit by this provision as well as other religious or charitable institutions if their manager has not been applying the income of the property to the objects to which it was intended by the dedicator to be applied. Similarly, where acquisition has been effected in the alternative manner detailed in Chapter V, namely, by preparation of a record‑of‑rights and compensation assess ment rolls, the rent‑receiver becomes liable to be dispossessed of all lands in his khas possession except a 100 standard bighas of land or 10 standard bighas per member of the family, whichever is greater. In such cases by reason of sub section (5) (i) (c) of section 20 a rent‑receiver in possession of wakf, wakf‑alal‑aulad or debutter lands as are exclusively applied to religious or charitable purposes without reser vation of pecuniary benefit for any individual cannot be dispossessed, but the result here is just the same because what is exempted is land, the income from which is exclusively applied to religious or charitable purposes without reservation of pecuniary benefit for any individual. And where the income from the lands held under any wakf, wakf‑alal‑aulad or debutter is partly dedicated for religious or charitable purposes and partly reserved for the pecuniary benefit of any individual, under sub‑clause (if) of subsection (5) of section 20, only such portion of the lands, as may be selected in accordance with the rules to be made in this behalf by the Provincial Government, comes within the exemption. There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution ? In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are "Subject to law" and may therefore be taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the 1 aw, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Sunnah could not possibly have intended to empower the legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non Muslim citizens of the State. If the argument of Mr. Brohi is sound, it would follow, and he admitted that it would, that the legislature may today interdict the profession of Islam by the citizens because the right to profess, practise and propagate religion is under the Article as much subject to law as the right to establish, maintain and manage religious institutions, I refuse. to be a party to any such pedantic, technical and narrow construction of the Article in question, for I consider it to be a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which were designed to safeguard the freedom of conscience and worship. Consistently with the language used, constitutional instruments should receive a broader and more liberal construction than statutes, for the power dealt with in the former case is original and unlimited and in the latter case limited, and constitutional rights should not be permitted to be nullified or evaded by astute verbal criticism, without regard to the fundamental aim and object of the instrument and the principles on which it is based. If the language is not explicit, or admits of doubt, it should be presumed that the provision was intended to be in accordance with the acknow ledged principles of justice and liberty. Accordingly, in doubtful cases that particular construction should be preferred which does not violate those principles. In the light of these rules of construction of constitutional instruments it seems to me that what Article 18 means is that every citizen has the right to profess, practise and propagate his religion and every sect of a religious denomination has the right to establish, maintain and manage its religious institutions, though the law M may regulate the manner in which religion is to be professed practised and propagated and religious institutions are to be established, maintained and managed. The words "the right to establish, subject to law, religious institutions" cannot and do not mean that such institutions may be abolished altogether by the law. Speaking of the right of political franchise, Chief Justice Shaw of the Supreme Judicial Court of Massachusettes remarked in Copen v. Foster (12 Pick 485‑488). "That in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner it which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, it regard to the time and mode of exercising that rights, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly and convenient manner . . . . . . Nevertheless, such a construction would afford no warrant for such an exercise of legislative power, as under the pretence and colour of regulating, should subvert or injuriously restrain the rights itself." This principle is, in my opinion, fully applicable to the interpretation of the extent of religious freedom recognised by Article 18 of our Constitution. That Article inter alia guarantees the right to establish, maintain and manage religious institutions, but concedes to the legislature the power to regulate the manner in which such institutions may be established, maintained and managed. It does not, however, empower the legislature to make a law that hereafter no institutions of a religious character shall be established, maintained or managed or that an existing religious institution shall be abolished. The Article appears to me to proceed on the well‑known principle that while legislature may not interfere with mere profession or belief, law may step in when professions break out in open practices inviting breaches of peace or when belief, whether in publicly practising a religion or running a religious institution, leads to overt acts against public order. In the present case no question of law and order being involved, I am constrained to differ from the view taken of this fundamental right by the High Court. I might now notice some of the subsidiary points urged on behalf of the appellants. It is alleged that Ordinance III of 1956 is invalid, and this alleged invalidity is sought to be founded on the contention that the Ordinance is an indepen dent piece of legislation and was repugnant to the terms of section 299 of the Government of India Act 1935, when it was promulgated a day before the Constitution came into force on the 23rd of March 1956. It is obvious that if the Ordinance is considered to be a complete and self‑contained enactment, and per se had the effect of depriving the appellants of their property without compensation, it would be invalid. But learned counsel for the appellants frankly admitted that he was unable to put the impugned legislation at that level. The Ordinance merely makes some procedural amendments to the Act and does not enable the Provincial Government to acquire without compensation any property which could not have been acquired under the Act. The subject‑matter on which it operated was within the competency of the Provincial Legislature and since it did not permit the expropriation of any rent‑receiver who was not liable to expropriation under the Act its validity cannot be questioned on the ground that it contravened section 299 of the Government of India Act in/ omitting to provide for compensation to the expropriated rent‑receivers. The second attack on the Ordinance was made by Mr. Ray on a different ground, and that is, that it was' a temporary law which unless confirmed by the Provincial legislature was to expire on a certain date and that since the Provincial legislature neither re‑enacted the Ordinance, nor affirmed it, it automatically expired on the date on which under the Government of India Act, 1935, it was to expire. This argument overlooks the clear provisions of Article 224 of the Constitution which directs that "Notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly provided in the Constitution, all laws (other than those enactments), including Ordinances, Orders‑in‑Council, orders, rules, bye‑laws, regulations, notifi cations and other legal instruments in force in Pakistan or in any part thereof, or having extraterritorial validity, immedia tely before the Constitution Day, shall so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority." The Ordinance in question was in force before the Constitution Day and therefore by virtue of this Article it continues in force until it is altered, repealed or amended by the appropriate legislature or other competent authority. It is not suggested that it was subse quently altered or repealed or amended and the word "so far as applicable" in the Article merely mean that the existing law has to be administered with such adaptations by the Courts as the new institutions that came into existence with the coming into force of the new Constitution rendered necessary. The Article could not have intended that an Ordinance which had been passed before the Constitution Day by a legislature which had ceased to exist on the coming into force of the new Constitution but was permitted to func tion as the new legislature with new functions should be treated in the some way as it should have been treated by the defunct legislature. The words "so far as applicable" do not refer to the period of time during which pre‑Constitution Ordinances were to remain in force, but to the Court's power to apply the existing law with consequential adaptations until an Adaptation Order is issued under clause (2) of the Article. Arguing that the Ordinance continued to be in force after the Constitution until it was altered or repealed by the competent authority, Mr. Brohi cited the case, Baldeo Singh v. The State (1), where Article 372 (1) of the Indian Consti tution which was similar to Article 224 of our Constitution, was held to keep alive an Ordinance which was in force immediately before the commencement of the Constitution, despite an express explanation to that Article to the effect that nothing in that Article "shall be construed as contemp lating any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force"; but the position appears to me to be so plain that it is not at all necessary to discuss that case or to examine the validity of Mr. Ray's criticism of the decision therein. The next point to be noticed in connection with this Ordinance is the contention of Mr. Nandy questioning the insertion of subsection 2 (a) to section 3 of the Act, which provided that in a notification issued under section 3, rent receivers could be specified or described by name or by reference to areas wherein they had interests, or in such other manner as the Provincial Government may determine. It is argued that whereas under subsection (A I R 1951 Madhya Bharat 49) of section 3 of the Act the Provincial Government had to specify the rent receivers whose interests were intended to be acquired and it was implicit in the subsection that the names of the rent receivers and the extent of their properties should be mentioned in the notification, the newly inserted subsection empowered the Government to acquire the interests of rent receivers by reference to areas wherein they had such interest. This is essentially an objection to the procedure to be adopted by the Provincial Government and not to its powers because even without the insertion of this subsection the Provincial Government could under subsection (3) make a rule that the rent‑receivers could be described with reference to the areas in which they had their interests. What was required under the unamended Act was that rent‑receivers to be specified should have their interests in a particular district, part of a district, or local area. Therefore if the Government by a notification acquired the interests of all rent‑receivers in a district, part of a district, or local area, it could not be P urged against such notification that it was beyond the powers of the Provincial Government given to it by subsection (1) of section

3. Mr. Nandy after referring to certain provisions of the Act, particularly subsection (3) of section 20, attempted to show that a notification under subsection (1) of section 3 could not issue unless the Government had taken certain preliminary steps, but in view of the absolute terms of sub section (1) 1 am not impressed by that argument. And as regard the allotment of the khas lands which were to continue in possession of the rent‑receivers under subsection (2) of section 20, it seems to me to be clear from subsection (3) to that section that the choice of the area had to be made in the first instance by the expropriated rent‑receiver himself, and by the Revenue Officer only if the option by the affected rent‑receiver was not exercised within the prescribed period. This step will have to be taken even after the notifications in question because the Provincial Government has to prescribe the period by which a landlord in khas possession has to make a choice of the land of which he wishes to continue in possession as a tenant under the Provincial Government, and until that choice is exercised by him he cannot be dispossessed from any part of the lands in his khas possession. It is only when the choice is not exercised within the prescribed period, that it will be for the Revenue Officer to make the allotment. The notifications expressly state that in the case of khas lands the acquisitions and the extent to which dispossession can take place are subject to the provisions of sub‑clauses (a) and (b) of subsection (2) of section 20 and therefore there is no force in the appellants' contention that the lands of which a rent‑receiver cannot be dispossessed had to be specified in the notification. All that is left now is to dispose of the appellants' contention that the Governor's Ordinance, Ordinance V of 1956, promulgated on 13th April 1956, directing the applica tion retrospectively with effect from the 22nd day of March 1956, of the East Bengal State Acquisition And Tenancy (Amendment) Ordinance, 1956, III of 1956, to the area in the district of Mymensing which was a partially excluded area immediately before the coming into force of the Constitution, is ultra vires. I have already pointed out that the impugned Act had been applied by the Governor to that area with effect from the 16th May 1955, and was thus in force there immediately before the Constitution came into force. By virtue of Article 224, therefore, the Act became automatically applicable to those areas because partially excluded areas were entirely abolished by the Constitution. Consequently, the Act continued to apply to the area, which was a partially excluded area before the Constitution Day, but on the Con stitution coming into force became part of the regularly administered area of the Province. In this view of the matter it was entirely unnecessary for the Governor to promulgate Ordinance V of 1956. The result is that all the appeals are dismissed except Appeals Nos. 2‑D, 3‑D, 4‑D, 3, 13, 28, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of 'religious institutions' and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances. In view of the novelty and difficulty of the legal points involved, I would make no order as to the costs of these appeals. A.H. Order Accordingly.