Ram Labhaya, Ag. C.J.
1. This is a petition of the Assam Company Limited under Article 226 of the Constitution of India. By this petition, Writs in the nature of Mandamus, Certiorari, and Prohibition, have been applied for. A Rule was issued on this petition to the opposite parties to show cause why the impugned orders should not be quashed.
2. The facts stated in the petition are as follows: The petitioner is the owner of the Cherideo Purbut Tea Estate. In 1947, the undeveloped lands included in the Tea Estate were brought under cultivation in furtherance of the Grow More Food Scheme of the Provincial Government. In 1950, an area covering about 400 acres of undeveloped lands was requisitioned by the Government of Assam under the Assam Land (Requisition and Acquisition) Act, 1948 (Act 25 of 1948). This area has not yet been allotted, settled or otherwise utilised by the Government for the purposes of the Act. On 15-10-51, the S. D. O., Sibsagar, passed an order requisitioning another area measuring 625 bighas, under the same Act as amended by Assam Act 16 of 1949. In the order, it was stated that the land requisitioned was for allotment to the landless, indigenous actual cultivators. The land requisitioned was described in a schedule attached to the order.
3. The petitioner appealed from the order of the S. D. O. Amongst other grounds, it was urged in appeal that the land requisitioned was already under cultivation and it had buildings in which the owners resided for more than a year immediately preceding the date of the order, and, therefore, the land could not form the subject matter of requisition. The appeal was heard by the Deputy Minister of Revenue (Opposite Party No. 3) and dismissed. His order shows that the appeal petition was read as also a report submitted by the S. D. O., Sibsagar, incorporated in his letter, dated 8-2-52. A hearing was also given to the advocate for the appellant. The S. D. O. was also present. It was found that the Estate had very large areas under tea cultivation. The area requisitioned was admittedly not necessary for tea. The appellant was trying to settle the land with garden employees. The land was found suitable for paddy cultivation. It was in one compact block. On these grounds, the appeal was dismissed.
4. The petitioner alleges that though the report of the S. D. O. of Sibsagar was read by the Deputy Minister, the contents of this report were not divulged to the appellant, nor was he given an opportunity of controverting statements contained in that report. An application for review was put in by some persons alleging themselves to be in actual possession of the land. This was also dismissed.
5. It was further pleaded that the Assam Land (Requisition and Acquisition) Act, 1948 not having been enacted more than 18 months before the commencement of the Constitution, and not having been submitted within three months from such commencement to the President of the Union of India for certification, contravened the provisions of Article 31(2) of the Constitution and was, therefore, ultra vires. It was also beyond the competence of the Assam Legislature, requisition not being a matter enumerated in the Provincial List forming part of the Government of India Act, 1935.
6. The proceedings and orders under the impugned Act were also challenged as violations of petitioner's fundamental right to hold and acquire property. The bona fides of the Opposite Party in requisitioning the land were also questioned.
7. The dismissal of the appeal was, it is urged, contrary to the principles of natural justice.
8. It is also averred that the order requisitioning the land was not made for any public purpose or in the interest of the landless indigenous actual cultivators. It was a capricious and mala fide exercise of jurisdiction not vested in the Opposite Party No. 3, or in excess of jurisdiction vested in him.
9. The Under Secretary to the Government of Assam in the Revenue Department has put in a counter affidavit. He affirmed that in July 1951, when the S. D. C., Nazira, made a local enquiry for the purpose of this requisition, it was found that only four bighas of low paddy land was under actual cultivation and the rest was lying fallow. As regards the area requisitioned previously, it was stated that the whole of it had been allotted, occupied and was being developed for purposes recognised by the Act. It was further stated that the land was requisitioned with the object of allotting it to the landless indigenous actual cultivators. In regard to the report of the S. D .O. to the Deputy Minister, it was alleged that the report was read by the Deputy Minister in the presence of the appellant's advocate before he began his work. The petitioner's advocate had thus an opportunity of controverting it. It is denied that the persons who applied for review of the appellate order were in actual possession of the land requisitioned.
The correctness of the legal contentions raised in the petition was questioned, and similarly the allegations about the mala fides of the authorities acting under the Act were denied. It was affirmed that the requisition was for a public purpose and in the interest of landless and indigenous cultivators. It was further stated that the land having been requisitioned under the authority of law, there was no question of violation of any fundamental right in property. The original order of the S. D. O. and the appellate order of the Government, it was claimed, were administrative orders and were not liable to be quashed. It was denied that the petitioners had no other adequate legal remedy. It was also averred that some garden labourers were allowed to occupy some land before the appeals were disposed of. These occupants of land also asked for allotments and about 218 bighas of land were allotted to them and the rest were allotted to local landless people. It is denied that the land before requisition was being used for any charitable purpose or for the advancement of any object of general utility. The allegation that the land was being cultivated & the cultivation was ancillary to the purposes of the tea Industry was repudiated. The allegation that the requisitioned land had buildings of value on it wherein the owners had been residing continually for more than a year immediately preceding the date of the order, was also denied. It was submitted that the area in question had 3 huts in it on the date of the inspection of the land by the S. D. C.
10. On 31-12-1950, Mr. Hareswar Das, the Deputy Minister of the Government of Assam, put in a supplementary affidavit supporting generally the statements made in the previous affidavit. The learned counsel for the appellant has taken objection to the filing of this supplementary affidavit, but a perusal of the affidavit shows that no new statement bearing on any fact that was material was made in this affidavit.
11. The contention first pressed is that the Assam Land (Requisition and Acquisition) Act, 1948 (25 of 1948), hereinafter called the Assam Act, is ultra vires and of no effect on the ground that it was beyond the competence of the Provincial Legislature. The argument is that the Act provides for requisition of premises and land for certain purposes. The requisitioning was outside the limits of legislative competence. As requisitioning is the basis and forms the foundation of the acquisition that may follow, if requisitioning could not be authorised, no acquisition under the Act would be possible. The Legislature, therefore, in providing for requisition as a preliminary step to acquisition has enacted an indivisible piece of legislation which would be incapable of being given effect to.p2
12. Another objection to the validity of the Act which has been raised is this that the Act does not declare that the requisition and acquisition of premises and lands under the Act must be for public purposes. It is also contended that the purposes specified in the Act, and particularly the purpose for which the land has been requisitioned in this case, are not public purposes. The validity of the provisions relating to compensation also has been impugned. The contention resolves itself into the question whether the Act does not fulfil the requirements of Article 31, Clause (2) of the Constitution.
13. Before dealing with these contentions it is necessary to reproduce the relevant provisions of the impugned Act as amended up to date. The preamble is to the following effect:
'Whereas it is expedient to provide for the requisition and speedy acquisition of premises and land for certain purposes.'
Section 2 of the Act gives the definitions of certain expressions used in the Act. Section 3, as amended up to date, is in the following terms:
'3 (1). If in the opinion of the Provincial Government or any person authorised in this behalf by the Provincial Government, it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation, or drainage or for providing land individually or in groups to landless, flood-affected or displaced persons, or to a society registered under the Indian Co-operative Societies Act, 1912 (with such statutory re-enactment or modification thereof as shall from time to time be made) or a company incorporated under the Indian Companies Act, 1913, formed for the benefit and rehabilitation of landless, flood-affected or displaced persons, the Provincial Government or the person so authorised, as the case may be, may, by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning:
Provided that no land used for the purpose of religious worship or for charitable purposes and no building or part thereof wherein the owner has actually resided for a continuous period of one year immediately preceding the date of the order, shall be requisitioned under this Section. Explanation:--'Charitable purpose' includes relief of the poor, education and medical relief and the advancement of any other object of general public utility.
(2) An order under Sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of a tenant, also on such tenant.
(3) When the order for requisition is made by any authority other than the Provincial Government, any person interested in the land, within 30 days from the date of issue of the order, may appeal to the Provincial Government and the decision of the Provincial Government in such appeal shall be final.' Section 4 of the Act authorises the Government to acquire the land requisitioned under Section 3 and lays down the procedure for it. Section 5 provides the procedure for inviting claims to compensation for land acquired under Section 4. Under Section 6, the land requisitioned under S-3 if not required, may be released from requisition and it shall then revert to the owner and the Collector is to deliver the possession of the land to such owner or interested person who is so recognised under Section 7 (3). Section 7 embodies provisions for compensation. As amended up to date, it is as follows:
'7 (1).--Subject to the provisions of Sub-section (1A), wherever any land is acquired under Section 4 there shall be paid compensation the amount of which shall be determined by the Collector in the manner and in accordance with the principles set out in Sub-section (1) of Section 23 of the Land Acquisition Act, 1894.
Provided that the market value referred to in Clause 1 of Sub-section (1) of Section 23 of the said Act shall, in respect of any land acquired under this Act be deemed to be the market value of such land on the date of publication of the notice referred to in Sub-section (1) of Section 4;
Provided further that if such market value exceeds by an amount the average of the aggregate market value of the land for three consecutive years immediately preceding the 31st day of March, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the notice referred to in Sub-section (1) of Section 4, the amount of such excess shall not be taken into consideration.
(IA).--In the case of land included in any grant or settlement made for special cultivation, if such land is lying fallow or uncultivated or is not utilised for the purpose for which the grant or settlement was made or for the purpose incidental thereto, then the compensation payable for acquisition of such land together with trees (if any) standing on it, shall be an amount equal to ten times the annual land revenue which, on the date of publication of the notice referred to in Sub-section (1) of Section 4, is or would have been payable if such land is or had been assessable to revenue at full rates: Provided that where any amount was originally paid to Government by the grantee as price or premium for the land, an additional amount equal to the amount originally paid by the grantee, shall also be payable.
Explanation:--'Special cultivation' means cultivation which involves, either owing to the nature of the crop or owing to the process of cultivation, a much larger expenditure of capital per acre than is incurred by most of the cultivators in the State, and includes cultivation of tea.'
(2) When the compensation has been determined under Sub-section (1) and Sub-section (1A), the Collector shall make an award in accordance with the principles set out in Section 11 of the Land Acquisition Act, 1894, and no amount referred to in Sub-section (2) of Section 23 of that Act, shall be included in the award.
(3) Where any land is requisitioned under Section 3, there shall be paid subject to the provisions of Sub-section (4), below, to every person interested such compensation as may be agreed upon in writing between such person and the Collector, in respect of-
(a) the requisition of such land, and
(b) any damage done during the period of requisition to such land other than what may have been sustained by natural causes.
(4) Notwithstanding the provisions of sub-section (2) of Section 8, in the case of land included in any grant or settlement made for special cultivation or other purposes which is lying fallow or uncultivated and which is requisitioned for the purpose of cultivation, the annual compensation payable under clause (a) of sub-section (3) shall in no case be more than double the annual land revenue which, on the date of order of requisition, is or would have been payable if such land is or had been assessable to revenue at full rates.'
Section 8 of the Act provides for a reference to the Court.
14. The first question is--whether the provincial Government had power to legislate for the requisition of property. The Assam Act received the assent of the Governor on 14-11-1948. At that time the Government of India Act, 1935, as adopted was in force. Dr. Gupta the learned counsel for the petitioner points out that the Provincial Legislative List, which is List 2 of the 7th schedule to the Government of India Act, 1935, by entry No. 9, authorises legislation for compulsory acquisition of land. He contends that acquisition does not include requisition and urges further that there is no other entry in the Provincial Legislative List which would authorise requisition. He also relies upon Section 299 of the Government of India Act, 1935, in support of his contention. That section also provides for compulsory acquisition as distinguished from requisition.
15. The learned Advocate-General has contended, relying on,--'Shyam Krishan v. State of Punjab', A. I. R. 1952 Punj. 70 (A), that requisition is included in acquisition. Entry No. 9 of the Provincial List II, therefore, justifies legislation for requisitioning. He also relies on entry No. 21 of the Provincial List II of the 7th schedule, which provides as follows:
'Land, that is to say, rights in or over land and tenures, including the relation of landlord and tenant, and the collection of rents, transfer, alienation and devolution of agricultural land, land improvement and agricultural loans, colonisation; Courts of Wards; encumbered and attached estates; treasure trove.'
The learned Judges of the Punjab High Court differed from the view that prevailed with Bhag-wati, J., in--'Tan Bug Taim v. Collector of Bombay', A. I. R. 1946 Bom. 216 (B). In his view, the provisions relating to the requisitioning of property contained in the Defence of India Act and the Rules made thereunder were ultra vires the Legislature, as the Central Legislature had no authority to legislate for requisitioning property. His conclusion was that 'requisition' could not be regarded as covered by or included in the expression 'acquisition'. He relied on the view of Latham, C. J. expressed in 68 Com W. L. R. 261 (C)--a case from Australia. This view was expressed in the following terms:
'In the present case, the Commonwealth has not acquired any interest of any kind in the land,
that it has not acquired any interest either from the owner of the fee simple or from the tenant and that the possession of the Commonwealth may, I think, properly be described as that of a licensee whose rights are defined by the Regulations.'
Bhagwati, J., preferred to follow the above view of the learned Chief Justice of that Court, who was in a minority of one. In his elaborate judgment, Bhagwati J., examined authorities and legislative practice in England and India. His conclusion was that the authorities and legislative practice do make a distinction between 'acquisition' and 'requisition.' As observed by Falshaw, J., in--'A. I. R. 1952 Punj. 70, at p. 75 (A)', the meaning of the word 'requisition' in its application to immovable property has become well settled. 'Acquisition' means permanent acquisition of the property and the passing of all title in the property acquired from the previous owner to the acquiring authority while requisitioning means only the temporary taking of the property & the temporary use and enjoyment of the owner's rights by the requisitioning authority. The requisitioning authority does not acquire ownership of the property or of any of the right in the property. It is merely entitled to its possession and use. No ownership of any kind having been acquired, the position of the requisitioning authority maybe analogous to that of a tenant or that of a licensee, though the requisitioning authority, strictly speaking, may not either be a tenant or a licensee. The authority requisitioning may hold the property for an indefinite period. It may release it at its pleasure. It is not governed by the Tenancy Laws of the State. They do not apply to it. The Government, when requisitioning property, therefore, would not exactly be in the position of a tenant. It may not also be described as a licensee, for, the requisitioning is a compulsory process and the possession of the Government is not by reason of any licence given or granted by the owner or the proprietor of the property, but by reason of the compulsion which may be exercised under the provisions of the Statute. The property is held under the provisions of a special or local law. It may be taken for temporary occupation under the L. A. Act. The relationship is governed by the Act under which the requisition is made. But it is clear that ownership of no particular kind is acquired by requisitioning, for if ownership is acquired, it should be capable of transfer. Even the requisitioning authority has no right to transfer the property requisitioned unless it has been acquired. The right is personal. The requisitioning authority should hold it subject to the conditions of the law under which the property is requisitioned. Requisitioning thus is, something very different from acquisition.
16. The expression has got a military origin. It has been used in Acts and Regulations which have been made in times of war. It never occurred till recently in any enactment made for use in peace times. Temporary use and possession, therefore, is implicit in it. The two conceptions are different and if it had been necessary to decide the question whether the term acquisition includes requisition, I would have been inclined to agree with the view of Bhagwati, J., 'according to which the expression 'acquisition' should not be held to include 'requisition'. This view (of Bhagwati, J.) received statutory recognition. By notification No. 311-47--C & G. N., dated 25-10-47, under Section 104 of the Government of India Act, 1935, the Governor General empowered all Provincial Legislatures to enact laws with respect to the requisitioning of land, treating it as a matter not enumerated in any of the lists in the 7th schedule of the said Act. This puts the question of legislative competence out of the pale of controversy. It undoubtedly recognises the correctness of the view of Bhagwati, J.,--'AIR 1946 Bom 216, (B)'. The Constitution, by providing separately for taking possession of property has also indicated its preference for the view. It has actually treated requisitioning as something distinct from acquisition of property. It is clear that the Provincial Government could legislate for the requisitioning of property. This contention of Dr. Gupta is repelled and, in this view it is not necessary to consider whether the impugned legislation would be covered by entry 21 of List II of the 7th schedule.
17. The validity of Section 3 has next been challenged on the ground that while the Assam Act authorised requisition and acquisition of property, it postulates no public purpose. Reference has been made to the preamble of the Act for showing that it does not state that the Act provides for the requisition and speedy acquisition of premises or land for public purposes. What is stated is that it is expedient to provide for requisition and speedy acquisition of premises and land for certain purposes. It is true that the preamble does not in express terms bring out that the requisition and acquisition of property under the Assam Act can only be for public purposes. The scheme of the Act is not to leave it to the Executive to determine whether there is a public purpose for requisitioning or acquiring land or premises under the Act. It merely authorises both requisition and acquisition for certain purposes which have all been specified in Section 3. If the Act had permitted requisition for public purposes, the obligation to determine whether a purpose was public purpose, would have devolved on the executive. The Legislature laid down the purposes for which the provisions of the Act could be utilised. If the purposes specified in Section 3 of the Act, or any one of them be not public in character, it may be possible to urge that either there are no public purposes justifying the legislation, or that a certain purpose specified in Section 3 is not a public purpose. But the contention that an express statement that requisition and acquisition under the Act can only be for public purposes, is necessary to the validity of the Act, has no force. Such a statement is not necessary where the Legislature confers limited powers on the Executive and specifies the purposes in the Act itself. These purposes, however, must be public purposes, for, if they are not, then the Act may be open to challenge on the ground that it permits requisition or acquisition of property for purposes other than public--a situation which is not countenanced by Article 31, Clause (2) of the Constitution, which recognises both acquisition and taking of property for public purposes only. The contention raised by the learned counsel is amply met by the observations made by Mahajan, J., in--'State of Bihar v. Sir Kameshwar Singh', AIR 1952 S. C. 252, at p. 274 (D). The observations are as follows:
'There can be no manner of doubt that acquisition of private property by legislation under Entries 33, 36 and 42 can only be made either for purposes of the Union or for purposes of the State or for a public purpose, and that it is unnecessary to state in express terms in the statute itself the precise purpose for which property is being taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for purposed of the public and that the intention was to benefit the community at large.'
It would not be necessary to state that requisition or acquisition is authorised for public purpopses, it is not even necessary that the Statute itself should state the precise purpose for which the property is to be taken, provided it can be gathered from the provisions contained in the Act and the language employed therein that the property was allowed to be acquired for public purposes. The view of the learned Judge was shared by Mookerjee, J., and Chandra Shekar Aiyar, J.
18. There can be no manner of doubt that an express statement in the Act that compulsory acquisition or requisition is authorised for public purposes only would not be an essential requirement of Article 31 of the Constitution particularly where the purposes are specified in the Act. The requirement of the Article as to public purpose would stand fulfilled if acquisition or requisition is authorised for purposes which are public in nature.
19. When the impugned Act was passed, the Govt. of India Act, 1935, was in force. Section 299 of the Government of India Act, 1935, provided that no person shall be deprived of his property save by authority of law. Clause (2) was as follows :
'Neither the Dominion Legislature nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles, on which, and the manner in which, it is to be determined.'
Clause (2) of Article 31 is wider in scope. It coveres both movable and immovable property. It also permits the taking of possession which would be covered by the term 'requisition'. Section 299 of the Government of India Act, 1935, was limited to compulsory acquisition. Clause (2) of Article 31 of the Constitution provides as follows:
'No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which and the manner in which, the compensation is to be determined and given.'
It includes both movable and immovable property within its ambit. For the rest, its language is the same as that of Clause (2) of Section 299 of the Government of India Act, with this difference that instead of the words 'provides for the payment of compensation the words used in Clause (2) of Article 31 are 'provides for compensation'. So far as the need of a public purpose is concerned, the language used is identical.
20. Clause (2) of Article 31 came to be interpreted by Their Lordships of the Supreme Court in--'AIR 1952 S. C. 252 (D)'. In regard to the need of a public purpose for legislation authorising requisition or acquisition, the learned Chief Justice of the Supreme Court interpreted it as seeking to impose a limitation in regard to public purposes. He did not agree to the proposition that it merely assumed, but did not provide, that the acquisition should be authorised only for a public purpose.
His conclusion was stated as follows:
'In other words, Article 31(2) must be understood as also providing that legislation authorising expropriation of private property should be lawful only if it was required for a public purpose and provision was made for payment of compensation.'
He made this absolutely clear by observing that Article 31(2) must be taken to provide for both the limitations in express terms. Das, J. was of opinion that 'the existence of a public purpose as a prerequisite to the exercise of the power of compulsory acquisition is an essential and integral part of the 'provisions' of Clause (2). In the view of Mahajan, J. 'The existence of a 'public purpose' is undoubtedly an implied condition of the exercise of compulsory powers of acquisition by the State, but the language of Article 31(2) does not expressly make it a condition precedent to acquisition. It assumes that compulsory acquisition can be for a 'public purpose' only, which is thus inherent in such acquisition. Mukerjea J., agreed with Mahajan, J. In his view also, the condition as to the extent of a public purpose was implied in the provisions of Article 31(2) of the Constitution. Chandrasekhara Aiyar, J., thought hat Clause (2) rightly assumed that the existence of a public purpose is part and parcel of the law and is inherent in it.
21. Whether the existence of a public purpose as an essential prerequisite to the validity of legislation authorising requisition and acquisition of private property, has been expressly provided for or by necessary implication and intendment, was a question which was necessary for the decision of that case. It assumed great importance by reason of the protection that Clause (4) of Article 31 extended to legislation covered by that clause. That question does not arise in the present case. Whether the existence of a public purpose as a condition precedent to the validity of legislation authorising acquisition or requisition of property,--has been expressly provided, or the provision is there by necessary implication or intendment, or whether it has been taken for granted as inherent in the idea of compulsory acquisition,--is immaterial for the purposes of the present case. The learned Judges of the Supreme Court were agreed that legislation authorising requisition or acquisition of private property, without public purposes, would contravene the provisions contained in Article 31(2). On this point, there is no divergence of opinion. If, therefore, any enactment of the Central or the Provincial Legislature authorises acquisition or requisition of property which is not for public purposes, the Act would be hit by Article 31(2), and if the law is not saved or protected by Clause (4) or Clause (6) of Article 31 or by Article 31A or 31-B, the Act would be unconstitutional and invalid. There does not appear to be any escape from this position. One necessary condition of the validity of law authorising compulsory acquisition or the taking of possession, therefore, is that it should have a public purpose or purposes. Public purposes, of course, include purposes of the Union and purposes of a State. It follows that the power of the Legislature to authorise compulsory acquisition or taking of possession of private property is not unlimited. It can be exercised only when a public purpose exists as a justifying circumstance, and an Act authorising acquisition for a private purpose, would be obviously unconstitutional, and the Courts will have the power to declare it so. No difficulty may arise when there is obviously an absence of a public purpose. But where an act contains provisions authorising acquisition or requisition for specified purposes which are described as public, questions may arise as to whether the purposes are public or not. The issue may not be simple, difference of opinion may be possible. Such cases may be rare. But there cannot be any doubt that the Courts will have the power to adjudge the issue. The matter would not be beyondi the competence of the Courts. Whether acquisition or requisition has been permitted for a public purpose, thus remains a justiciable matter. This necessarily follows from the view that Their Lordships of the Supreme Court took of the requirements of Article 31, Clause (2). They were all agreed that the absence of a public purpose would expose any legislation authorising requisition or. acquisition to attack on the ground that it contravened Clause (2), where such a contravention takes place, legislative power is exceeded. Under the Constitution, the Parliament can make laws for the whole or any part of the territories of India, and the Legislature of a State may make laws for the whole or any part of the State. Article 246 of the Constitution provides for the distribution of legislative power, Article 248 does confer on the Parliament the exclusive power to make laws with respect to any matter not enumerated in the concurrent list or in the State list. But the power vested in the Parliament to make laws is subject to the provisions of the Constitution and, therefore, to the provisions contained in Article 31, Clause (2) also. There is thus clearly a limit on legislative competence in regard to compulsory acquisition and taking possession of private property. The limit is there either stated expressly or by necessary implication. Courts, therefore, acquire jurisdiction to decide--whether legislation authorises acquisition or requisition for public purposes, and also whether the purposes specified in an Act are public purposes, or not. In--'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (S. B.) (E), Sinha and Das JJ., came to the same conclusion. So did Reuben and Das, JJ. in--'Kameshwar Singh v. State of Bihar', AIR 1951 Pat 91 (S. B.) (P). Shearer J. was of the view that the legislative determination of the question was not subject to judicial scrutiny of review. This view receives no support from the decision of their Lordships of the Supreme Court. The obvious difficulty in subscribing to this view is that if legislative determination is considered as unjusticiable, the restriction imposed on legislative power by Article 31(2) would be illusory. Any purpose may be described as public purpose. It may not obviously be so, and yet the determination would be conclusive. This view could practically have the effect of removing a restriction which the Constituent Assembly chose to place on the legislative power in the body of the Constitution itself,--a restriction which, on a large consensus of opinion, has to be regarded as inherent in the idea of compulsory acquisition. The learned Advocate General has not seriously pressed that the issue as to the existence of a public purpose is outside the limits of justiciability.
22. Section 3(1) of the Assam Act enumerates the purposes for which premises and land may be requisitioned or acquired. In this case, the S. D. O., Sibsagar, by an order dated 15-10-51, purported to requisition the land in question for allotment to the landless indigenous actual cultivators. It has been urged by Dr. Gupta that landless, indigenous actual cultivators for whose benefit the land was requisitioned, would not, as a class, be covered by the provisions contained in Section 3 of the Assam Act. This contention has nothing to do with the validity of the provision, and will have to be examined separately. On the question whether the purposes specified an the section are public purposes or not, he did not have to say much. The purposes specified in the section are all, in my opinion, very obviously public purposes. There cannot be any serious controversy about their nature. Maintaining supplies, and services essential to the life of the community, providing proper facilities for accommodation, transport, communication, irrigation, drainage, and providing land to the landless, flood-affected or displaced persons,--are all public purposes.
The expression 'public purposes' has not been defined. No such attempt has so far been made, and the reasons for this are obvious. The expression ought to retain its elasticity. Its scope can extend and expand according to the conditions of the times. At one time the main duty of the State or Government was to maintain law and order. The state to-day is not discharging that limited function. Its functions have increased to an enormous extent. The old conception of the functions of a State is undergoing a rapid change. The directive principles of the policy of our State include, among the objectives of State, that the citizens shall have the right to adequate means of livelihood, that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These directive principles aim at transforming a Police State into a Welfare State, which is concerned with a just distribution of the material resources available in such a manner that the maximum common good results. Any purpose which is in consonance with the directive principles, would undoubtedly be a public purpose. The purposes of the Union and purposes of a State would also be regarded as purposes for which acquisition or requisition may be authorised. The implementation of the directive principles of the Constitution was held to be a public purpose in--'Suryapal Singh v. U. P. Govt.', AIR 1951 All 674 (FB) (G). Mahajan, J., in--'AIR 1952 SC 252 at p. 274 (D)', observed 'The phrase 'public purpose' has to be construed according to the spirit of the times in which particular legislation is enacted..' (23) In--'Hamabai Framjee v. Secy. of State for India', AIR 1914 PC 20 (H). Their Lordships of the Judicial Committee quoted, with approval, a passage from the judgment of Batchelor, J., which was in the following terms:
'General definitions are, I think, rather to be avoided where the avoidance is possible and I make no attempt to define precisely the extent of the phrase 'public purposes' in the lease, it is enough to say that in my opinion, the phrase, whatever else it may mean, must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned.'
Das, J., in--'AIR 1952 SC 252 CD)', referring to these observations, was of the view that the reference in the above quotation to the general interest of the community clearly indicated that it was the presence of this element in an object or aim, which transforms such object or aim into public purpose. His conclusion was that whatever furthers the general interest of the community as opposed to the particular interest of the individual, must be regarded as a public purpose. In--'Thambiran Padayachi v. State of Madras', AIR 1952 Mad 756 at p. 761 (I), there is an exhaustive discussion on the significance & import of the expression 'public purpose'. A very large number of authorities bearing on the point have been considered. The conclusion arrived at was in the following terms:
'Acquisition of property for public purpose under Article 31(2) includes whatever results in advantage to the public. It is not necessary that it should be available to the public as such. It might be in favour of individuals provided they are benefited not as individuals but in furtherance of a scheme of public utility. Schemes for construction of houses, for clearing slum areas, relieving congestion, and housing poor people, are for a public purpose, as they tend to promote social welfare and prosperity.'
Applying the tests laid down in the two cases referred to above, to the purposes specified in Section 3(1) of the Assam Act, I find no difficulty in holding that these purposes are public. Giving land to the landless, flood-affected and displaced persons, though it may benefit certain individuals, is no doubt in furtherance of a scheme of public utility. The aim is to improve the general conditions of existence, though to a limited extent, by a more equitable distribution of land. The rehabilitation of the victims of flood and Partition and of the poor is covered by the directive principles, of the State. I have no doubt that the Act is not open to attack on the ground that it authorises acquisition or requisition for purposes which are not public within the meaning of Article 31(2) of the Constitution.
24. In regard to the provision relating to compensation, the original provision contained in the principal Act was that compensation shall be determined by the Collector in the manner and in accordance with the principles set out in Sub-section (1) of Section 23 of the Land Acquisition Act. The market value was to be the market value at the date of the publication of notice referred to in Section 4(1). By a provision, a ceiling or maximum price was fixed. The compensation payable could not exceed the average of the aggregate market value of the land for three consecutive years immediately preceding the 31st day of March 1948. This average was to be the amount of compensation on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the notice referred to in Section 4(1).
25. In regard to land requisitioned under Section 3, such compensation as may be agreed upon in writing between the person whose land is taken and the Collector in respect of the requisition, and any damage during the period of requisition other than what may have been sustained by natural causes was payable.
26. In case no agreement could be reached, a reference to the Court was provided.
27. By subsequent amendments the provisions relating to compensation were varied in regard to land included in any grant or settlement made for special cultivation. If such land was lying fallow or uncultivated or was not utilised for the purpose for which grant or settlement was made or for the purposes incidental thereto, the compensation for acquisition together with trees standing on it was fixed at ten times the annual land revenue which is or would have been payable if such land is or had been assessed at full revenue rates.
28. If lands of the above description are requisitioned, the annual compensation could not exceed double the annual land revenue.
29. The contention is that the provisions for compensation are not just and reasonable and, therefore, they infringe Article 31(2). The learned Advocate General urges that the adequacy, reasonableness or the justice of compensation is not justiciable.
30. We have thus to consider first whether we are competent to go into the question whether the provisions for compensation are reasonable and just.
31. We have come to the conclusion that notwithstanding that the language employed in Clause (2) of Article 31 in regard to the need for public purpose may be variously interpreted, the existence of a public purpose for legislation covered by Article 31(2) is a requirement of Clause (2). No such difficulty of interpretation arises in regard to the requirement of compensation. The mandatory requirement of the clause is that laws authorising acquisition and requisition shall either fix the amount of the compensation or specify the principles on which, and the manner in which the compensation is to be determined and given. Unless such a provision exists, no property can be acquired or requisitioned even for a public purpose. It follows that the absence of such a provision would be fatal to the constitutional validity of the Act. It would not be possible to give effect to it. On the same basis would be a law authorising acquisition or requisition, which, though purporting to provide for compensation, does not do so in reality. Such a legislation would be confiscatcory in nature even though its real nature may be concealed, disguised or camouflaged. The exercise of legislative power in such a case would be colourable. If a device is employed to cover up an obvious omission, this would, when seen, render the law useless and ineffective. A legislative act of this description would be characterised as a fraud on the Constitution. Where the pretence of a provision for compensation is kept, but elaborate and complicated provisions ostensibly providing for compensation actually defeat the rights to compensation--the disguised contravention cannot save the law from being wrecked on the rock of constitutionality. The imperative demand of this Article (Article 31) for a provision for compensation in conformity with its terms cannot be evaded by 'shift or contrivance'. Where such an attempt is made, there would be a case of excess or abuse of the legislative power. The learned Advocate General agrees that such a law would be outside the limits of legislative competence. It would be a colourable exercise of jurisdiction or a fraud on the Constitution and the Courts have ample power to adjudge such a law as unconstitutional. This view of the matter finds ample support from the judgments of Their Lordships of the Supreme Court in--'AIR 1952 SC 252 (D)'. In the words of Das, J. 'the charge of fraud on the Constitution is on ultimate analysis, nothing but a picturesque and epigrammatic way of expressing the idea of conflict with the terms of the Constitution.'
32. So far there is agreement on the legal position. But Dr. Gupta does not stop here. He urges that the provisions relating to compensation must be judged by the test of reason. If they are found not to be reasonable, the Court must declare the law invalid and ineffective. The contention takes us back again to the language of Article 31(2). The learned counsel relies on the dictionary meaning of the word 'compensation' and also on--'W. B. S. K. Co. of Society v. Mrs. Bella Banerjee', AIR 1951 Cal 111 (J), in support of his contention.
33. The dictionary meaning of the expression 'compensation' according to Murray's Oxford Dictionary, is 'equivalent'. The implication is that the owner should be put in as good a position from a pecuniary point of view as he would have been if his property had not been acquired. Its import is that the money value of the property should be given to the owner when he is made to part with it. Such equivalent in money, if allowed, would both be reasonable and just. It is contended, therefore, that though Article 31(2) does not contain the words 'reasonable or just', the obligation to provide for reasonable compensation, remains. The requirement is read as part of the Constitution which makes it imperative for the legislature to provide for compensation.
34. This argument would have been extremely difficult to meet and this contention might have been almost unanswerable if the Constituent Assembly had merely laid down in Clause (2) that no property, movable or immovable, etc., shall be taken possession of or acquired for public purposes under any law, unless the law provides for compensation for the property taken possession of or acquired. Compensation then would have borne its dictionary or natural meaning. It would have stood unqualified. The obligation to provide for compensation then could not have been fulfilled by providing for something less or different from the money equivalent of the property taken away. A contravention of the requirement would have been fatal to the validity of the Act.
34a. The word 'compensation' has been qualified. Its dictionary sense has been whittled down by the words 'and either fixes the amount of the compensation or specifies the principles on which, and the manner in which the compensation is to be determined and given'. By these words, power has been given to the Legislature to fix: the amount to be paid as compensation or to lay down the principles and the manner in which compensation may be determined. The exercise of this power is obligatory. It is noteworthy that the Article does not provide in the manner of the American Constitution that the amount determined should be just or that the principle and the manner laid down should lead to a just determination. The omission assumes significance in view of the obligation imposed on the Legislature to determine either the amount or the principle. That this omission is conscious is undoubted. Why should it be necessary for the Legislature to give the amount or frame the principle for its determination? It should be enough if there is provision for compensation and the machinery for its determination. The word 'compensation' with all its implications should have been enough. It would have meant an equivalent according to prevailing market standard. This, however, does not appear to have been intended. Merely allowing market value even may not be just or reasonable by standards which have been in vogue so far. The Land Acquisition Act allows, in addition to market value, compensation for damages to crops or trees, for severing the land from other land, for injurious affection of other property etc. What is reasonable compensation in a given case at a-particular time and in a particular area, must depend on a number of changing circumstances. No uniform or general rule could be laid down with any degree of justice, and therefore, the Legislature is not only authorised but is placed under an obligation to fix the amount or the principle for determining it. The determination is thus left to the Legislature. Its hands are not tied down by any rigid principle. This Article confers on the Legislature alone the power to fix the amount or lay down the principle. The provision would lose its elasticity and its advantage if it is interpreted to require the Legislature to conform to the requirement of the dictionary sense of the word 'compensation'. If this was the purpose, it could have been achieved by the omission of the entire clause relating to the determination of the amount or the principle and the manner of it.
35. The departure from Constitutions which provide for just compensation and leave the matter at that, lies not so much in the omission of the word 'just' as it is in the clause which at once authorises and binds the Legislature to determine the amount or the principle of compensation. The word 'compensation' in the setting in which it occurs means no more than such compensation as the Legislature determines in the circumstances of the case. It may determine it in money or any other form, or may lay down a principle for arriving at it. The effect of the provision is that laws authorising acquisition or requisition should provide for such compensation as the Legislature may determine. The usual provisions providing for just and reasonable compensation has been avoided. It has to be assumed that the Constituent Assembly realised that the words 'just or reasonable' would subject the legislative determination to judicial scrutiny in the light of objective tests or standards. The language used does not give any indication of any such intention. The emphasis, on the other hand, is on legislative determination, presumably on the assumption that it may always be depended on for giving such compensation as in the changing conditions of the times may seem just or reasonable. Legislative determination, therefore, may not be tested by the implications of the word 'compensation'.
36. Under Article 19, restrictions which may be imposed on certain fundamental rights have to be reasonable--not restrictions which to the Legislature appear reasonable. Legislation imposing restrictions on fundamental rights could also be placed outside the scope of judicial review. This was not done. The idea was that legislative action in placing restrictions must conform to objective standards, so that the Legislature may not have the competence of making constitutional guarantees illusory. Rights to private property have been dealt with in the same chapter on Fundamental rights. The avoidance of the use of word 'reasonable' which would make the determination of compensation justiciable, points to the conclusion that the Constituent Assembly has preferred not to confer on the Judiciary a power to veto a legislative determination of compensation as it has done in the case of restrictions on certain fundamental rights guaranteed by Article 19.
37. The view we are inclined to take is opposed to the view which prevailed with a Division Bench of the Calcutta High Court in--'A. I. R. 1951 Cal 111 (J). The learned Chief Justice who delivered the judgment in that case expressed the view that compensation, to be compensation within the meaning of Article 31(2), must be a reasonable or a just equivalent. This, according to him, was the requirement of Article 31(2) and if the amount which a law gives be not just or reasonable, then it cannot be regarded as compensation within the meaning of the clause. In--A. I. R. 1951 Pat. 91 (S. B.) (F), Shearer, J., held at page 97 that what was intended by the Constituent Assembly when it enacted Article 31(2) was that whatever compensation was made, it should be something which could fairly be said to be an equivalent in value to the property taken over by the State. According to the decision in this case, the issue as to whether compensation in its ordinary sense has been provided for or not, is a justiciable issue. The ratio in the Calcutta and the Patna cases is the same. This view is based on the usual import of the expression 'compensation'. There can be no manner of doubt as to its import, but what is just or reasonable compensation may not be a simple matter. It may be a question of some complexity. Considerable divergence of opinion on it is conceivable. Some one had to be invested with authority to determine it. The question is--to whom has the Constituent Assembly given the power to determine it finally. With great respect to the learned Judges of the Calcutta and Patna High Courts, my conclusion to which the language of the Article leads me, is that the determination of the question was left to the Legislature. The requirement of the Article seems to be not that compensation in the abstract sense of the term should be provided, but there should be a provision for compensation which should be determined by the Legislature. The view expressed by the learned Judges of Calcutta and Patna is entitled to the highest respect. It is, therefore, with great hesitation that I hold that the Constituent Assembly decided to leave the determination of the question to the Legislature, and deliberately avoided the use of the terms which would have subjected its determination to judicial scrutiny. Whether compensation provided is just or reasonable, is a matter when may not be regarded as justiciable. When the function of determining compensation is left to the Legislature, there should be an express provision in the Constitution justifying judicial scrutiny. The right of judicial veto may not be assumed to exist in the judiciary. Our Written Constitution confers no general power of vetoing legislation on the Courts. The due process clause of the American Constitution which has been utilised in the U.S. A. for the exercise of judicial veto, has not been used in the Constitution. Wherever the power of judicial veto was intended to be given, words have been used to indicate that intention as in Article 19.
38. In the Calcutta case, when considering whether the provisions relating to compensation in that case were reasonable or not, the test applied was the principle embodied in Section 23 of the Land Acquisition Act. With great respect to the learned Judges, and with no small amount of diffidence, I feel inclined to the view that the principle of Section 23, Land Acquisition Act may not be regarded invariably as an objective standard for determining whether the compensation in a particular case is reasonable and just or otherwise. It seems to me that Article 31(2), as framed, was meant to avoid that invariable standard for judging the justice or reasonableness of compensation. That standard was applied when the institution of private property had a very high degree of sanctity attached to it. That was a time when the law did not authorise any violation of the right of private property,--not even for the general good of the community. The then prevailing view may best be expressed in the words of Blackstone. He expressed himself as follows:
'So great is the regard of the law for private property that it will not authorise the least violation of it, no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extremely beneficial to the public, but the law permits no man, or set of men, to do this, without the consent of the owner of the land.'
Besides, the public good is nothing more essentially interested, than in the' protection of every individual's private rights, as modelled by the Municipal law.'
In this and similar cases, the Legislature alone can, and indeed frequently does, interpose, & compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the Legislature does is to oblige the owner to alienate his possessions for a reasonable price, and even this is an exertion of power, which the Legislature indulges with caution, and which nothing but the Legislature can perform. 'It was under the influence of such ideas that the principle of Section 23, Land Acquisition Act, obtained statutory recognition. The hold that the institution of private property had is loosening. Requisitioning of property in peace times which was not known till recently, can now be resorted to for all public purposes. This involves an assumption of much greater authority by the State so far as its dealings with private property are concerned. The scope of public purpose is also expanding. Compensation has to be adjudged under rapidly changing conditions. That matter has, therefore, been left to the Legislature, so that it may fix compensation in view of the existing economic trends in the light of the policy of the State which aims at doing social justice by removing disparities of wealth and by distributing all available resources of the State in such a manner that the maximum good is achieved. A rigid adherence to the principle of Section 23, Land Acquisition Act, in all cases in the context of existing conditions, may not be universally recognised as either reasonable or just. No doubt the assumption underlying Clause (2) of the Article is that the Legislature would come to a reasonable decision in the matter of compensation, but what the Constituent Assembly intended was that it should be compensation that appears reasonable to the Legislature, and its scrutiny by objective standards was excluded expressly or at least by necessary implication. No authority from Courts outside India have been cited on this point, and perhaps rightly. They would not be of much assistance when interpreting Article 31(2). It has a background of its own. The Constitution in which it appears has very different objectives than those for instance of the American and the Australian Constitution. The power expressly conferred on the Legislature to fix the amount or the principle of compensation is its distinctive feature. The language it employs marks a conscious departure from analogous provisions in Constitutions of other countries regulating the exercise of powers of the Eminent Domain.
39. In this view of the matter, it is not necessary for us to consider whether the provisions relating to compensation are reasonable or not by objective standard. The compensation for land, if acquired under the Assam Act, has to be assessed on the principles laid down in Section 23 (1) of the Land Acquisition Act. The qualification is that the maximum amount of compensation should not exceed the average of the aggregate of 3 years' market value of the land preceding March, 1946. This fixation of the maximum would not make the provision unreasonable. In the Calcutta case, a similar provision existed, but there was this distinction that while the life of the Act under consideration in that case was unlimited in duration, here the Act is to expire in 1954. If land is acquired before the Act expires, the acquisition must come before 1954. If the provision as to the maximum is seen in this light, it cannot be regarded as in any way unjust or unreasonable. What the Legislature has allowed as compensation is the average market value of 3 years preceding March 1946. By that time the prices had risen very high. Any artificial rise after 1946 has not been permitted to be taken into consideration, when land is required by the Government for the landless, flood-affected and displaced persons, or for maintaining supplies and services or for other purposes of great general utility. It is also true that the usual 15 per cent on the value assessed has also not been allowed for the element of compulsion, but payment for compulsion in any event cannot be regarded as an unalterable part of the objective standard by which the provisions relating to compensation must be judged in each case. That would be reading the whole of Section 23 of the Land Acquisition Act into Article 31(2) of the Constitution. What is left to the Legislature for its determination if no kind of deviation, however small, from the principles contained in Section 23 is permitted to the Legislature. If payment for compulsion is not adopted as a part of the invariable standard, compensation would not be unreasonable if full value plus compensation for all consequent damage and loss is allowed.
40. Dr. Gupta has also argued that provision for compensation for acquisition and requisition of land forming part of the grant or settlement for special cultivation, if lying fallow or uncultivated or unused for purposes for which it was granted, is wholly illusory and acquisition of such land would be confiscatory in nature.
41. In regard to land which was granted or settled for special cultivation and special cultivation includes cultivation of tea and which has been lying fallow and uncultivated and has not been used for the purpose for which it was settled, a different rule for assessing compensation has been laid down. If it is requisitioned, the maximum compensation is double the revenue, if it is acquired, the maximum compensation is 10 times the revenue, whether land revenue is actually being paid or not. In the case of acquisition, the amount originally paid to the Government by the grantee as price or premium is also to be added to the amount to be paid as compensation. Grants of large areas were made for encouraging special cultivation. Special cultivation means 'cultivation which involves either owing to the nature of the crop or owing to the process of cultivation, a much larger expenditure of capital per acre than is incurred by most of the cultivators in the province' and includes the cultivation of tea. Large areas were given for tea cultivation on extremely generous terms. In 1838 the first special grant rules were made. A grant could be up to 10,000 acres. One-fourth of the grant was to be held in perpetuity revenue free, on the remaining three-fourths, no revenue was to be assessed for the first five years if the land was under grass. On the expiry of this term, revenue was to be assessed at 9 annas per acre for the next three years. The petitioner Company was an oldest to start tea cultivation in Assam. Grants at that time were made in the hope that large areas would be brought under special cultivation. In respect of areas forming parts of grants or settlements for special cultivation, the Government, if it decides to acquire any, is not allowing the grantee any unearned increment, where the areas have been allowed to remain fallow or uncultivated. It amounts to resumption of grants on payment of what may be regarded as more solatium than anything like the present market value of the land, but the principle which appears to have influenced the decision is that these lands were granted free or on nominal payment for certain purposes, and if they were not being used for those purposes, compensation at market value to the grantees is not deserved. If the grantees have allowed the land to remain just as they got it, if no investment is made, and if it is not being used for purposes for which it was granted or even for purposes incidental to it, the rise in the price of the land due merely to economic causes, may not be justly claimed when the land is acquired for urgent public purposes. Considering the entire background, I am not prepared to hold that provisions for compensation of these lands are so illusory as to amount to no compensation at all. I do not regard these provisions as a fraud on the Constitution or a colourable exercise of the legislative jurisdiction. Differences of opinion as to adequacy of compensation may exist, but the question as to its adequacy is not justiciable.
42. Dr. Gupta has also urged that the provisions of the Act relating to requisition conflict with rights of the petitioner guaranteed to it by Article 19(1)(f). This contention has no force. Rights under Article 19(1)(f) are capable of enjoyment only if property is not acquired or requisitioned under a law validly enacted. The State has the right to deprive any person of his property under the authority of law. If the law conforms to the requirement of Article 31, the property of an individual may be taken possession of or acquired. When that contingency occurs, the individual concerned loses the property and no question of holding or disposing of that property arises. In other words, Article 19(1)(f) applies only so long as an individual has not been deprived of his property by the State under the authority of law--'Charanjit Lal v. Union of India', AIR 1951 S. C. 41 at p. 60 (K).
43. The next question at which the parties are at issue is the nature of the impugned orders. Under Section 3 of the Assam Act, if the Provincial Government or any other person authorised in this behalf by the Provincial Government, is of the opinion that it is necessary for any of the objects specified in that section to requisition any land, it or he may so order in writing and may make any further orders that would appear to it or to him to be necessary or expedient in connection with the requisition. The Act prescribes no enquiry before the order under Section 3, Clause (1) is made either by the Provincial Government or any other person who is authorised to make the order. If the Government or the officer concerned regard requisitioning as necessary for any of the prescribed purposes, they can proceed to pass the order. No objective standard or test is laid down for their guidance in the exercise of the power vested in them. The opinion has to be formed subjectively without the observance of any fixed or recognised rules. Even a notice to the person whose property is sought to be requisitioned is not provided. The power can be exercised ex parte, so to say. At this stage thus obviously there is no lis and no other party. No judicial approach is contemplated. The proceeding at this stage, therefore, cannot be regarded as judicial or quasi-judicial.
44. The learned counsel for the petitioner argues 'that Clause (3) of Section 3 expressly provides for an appeal to the Provincial Government when the order of requisition is passed by any other officer, and invests the appellate decision of the Provincial Government with finality. He argues that whatever the nature of the proceeding may be at its initiation when the order is made by an officer subordinate to the Provincial Government the proceeding does acquire a judicial character, at the appellate stage. The right of appeal given to the person aggrieved concedes to him by necessary implication a right of hearing, and where there is a right of hearing to a party, all the elements needed for a judicial approach would be there.
45. The Provincial Government has the power to make the order itself. Where the order is made by the Provincial Government, it will be made under Section 3, Clause (1). The basis of the order would be merely the opinion of the Provincial Government. There will be no right of appeal, nor would there be any right of representation against the order of requisition. If, therefore, the Provincial Government acts under Section 3 (1), the order would necessarily be of an administrative character based on its opinion. The question then is whether, when the order is passed by an officer, and not by the Provincial Government, the appellate function which the Provincial Government may be called upon to perform, assumes a judicial or a quasi-judicial character. The answer to the question would be in the negative as when exercising appellate powers, the Provincial Government would still have the same power to confirm the order on its own opinion as it would have had if it had passed the original order itself. The nature of the proceeding depends on the approach contemplated by the Statute. The proceeding may not assume judicial or quasi-judicial character at the appellate stage merely on the ground that a right of appeal has been allowed against an administrative order. The learned counsel has relied on--'Debendra Bandhu v. State of West Bengal', AIR 1952 Cal, 808 (L), in support of his contention.
It seems to me that the case does not support his contention. It is easily distinguishable. The case no doubt is an authority for the proposition that a proceeding, administrative at the original stage, may assume or acquire a judicial or quasi-judicial character at the appellate stage, but it lends no support to the contention that merely because a right of appeal is provided, the appellate proceeding must be treated as a judicial or quasi-judicial one. At 'page 814,' the learned Judge (Sinha, J.) observes as follows:
'As I have already stated, it is not necessary in a statute to lay down any particular mode of procedure to render a proceeding under it quasi-judicial. If there is a duty cast to hear the parties and in doing so, to have in general a judicial approach, then such acts are quasi-judicial. In my opinion, an appeal under the provisions stated above does require a judicial approach and, therefore, is a quasi-judicial proceeding. Since no particular procedure has been laid down for the conduct of such a proceeding, all that is necessary to do is to follow the rules of natural justice.'
In the view of the learned Judge, there should be a duty cast on the appellate authority to hear the parties, and in hearing the parties, to have a general judicial approach. In that case, the Act and the rules provided for an appeal. The rules prescribed as to how Memorandum of Appeal should be presented and how* the matter should be heard and disposed of. The learned Judge observed:
'These appeals seem to be conducted with a certain amount of formality. The petition and memorandum are stamped, lawyers appear and arguments are heard.'
The distinguishing feature of that case is that the rules framed under the Act provided for a hearing. In the circumstances of that particular case, the learned Judge held that a judicial approach was contemplated at the appellate stage. The proposition that he laid down was that merely because an original order is an adminstrative one, it does not follow that the appellate proceeding may not be quasi-judicial. It will depend on the provisions of the law in respect of the appeal.
48. The provisions of the Assam Act relating to appeal are all contained in Section 3 (3). They do not provide for any hearing. They give no other indication of any judicial approach. In fact, the authority hearing the appeal is invested with jurisdiction to requisition property by an administrative order without any enquiry and without affording any opportunity to the person concerned for placing his case before it- As held by their Lordships of the Supreme Court in--Province of Bombay v. Khushaldas S. Advani', AIR 1950 S. C. 222 (M), the Act itself under which the impugned order is passed, should provide for a judicial approach. There is no such indication in the Act itself that a judicial approach is contemplated at any stage of the proceeding, so far as the order requisitioning the property is concerned. The learned counsel has also referred to certain observations in Hood Phillips' Constitutional Law Special Edition for India (1952) at pages 342-343. The observations relied upon are as follows:
'A Minister often has a complex function ending and usually beginning with administrative (executive or ministerial) powers, but at some stage for example, the holding of a public inquiry or the consideration of objections,--he is under a duty to act in a judicial manner, such as the King's Bench Division will supervise by certiorari. The whole procedure or process is called quasi-judicial because although as a whole it is administrative, there is a stage at which the Minister must act as if it were judicial.'
'Wherever an inquiry is contemplated or objections have to be heard and disposed of, and it may be added, or where there is a duty cast by the Act or the rules framed thereunder, to allow a hearing to the person affected by the orders, the judicial approach may be indicated, but it may not be said that because the right of appeal is allowed, the proceeding must necessarily be treated as a quasi-judicial one. We had occasion to consider this point in a case reported in--'Hanumanbax Agarwalla v. Sub-Divisional Officer, Sibsagar', A. I. R. 1952 Assam 115 (N). In that case relying on the decision of the Supreme Court in--'AIR 1950 S. C. 222 (M) we came to the conclusion that the Provincial Government and any officer of the Provincial Government who may be authorised to act under Section 3 (1), have an administrative function to perform. There is no difference in the nature of their function or duties. Even as an appellate authority, the Provincial Government is under no obligation to act judicially. It is authorised to come to its decision by the exercise of its subjective discretion. After hearing the learned counsel for the petitioner. I do not consider that there is any need or occasion for reconsideration of the view taken in that case. Our conclusion, therefore, is that the proceeding at the appellate stage also had an administrative character.
47. In this case a hearing was allowed at the appellate stage. The petitioner was represented by an advocate. But this fact does not change the nature of the proceedings. The statute provides for an administrative handling. It does not contemplate any judicial approach. The nature of the proceeding, therefore, would not be changed by the mere fact that a hearing is actually allowed. This is recognised in--'AIR 1952 Cal 808 (L)', on which the learned counsel for the petitioner has relied. The learned Judge there held that a Collector cancelling an excise licence under Section 42, Bengal Excise Act for violation of its terms, acts in a purely administrative capacity. Neither the Act nor the rules thereunder require him to hold any quasi-judicial investigation into the matter. He is not required to give any notice to the licensee before cancelling the licence and the mere fact that in a particular case such a notice was given and the licensee was allowed an opportunity to cross-examine the witnesses, is immaterial for the purposes of determining the nature of his act. The fact that in this case, the petitioner was given a hearing and was allowed to be represented by an advocate, does not alter the nature of the proceeding nor does it add to his rights. The law merely gives the petitioner the right to prefer an appeal, and this appeal could have been disposed of without allowing the petitioner any hearing.
43. Dr. Gupta has further contended that even if the order was administrative and even though no judicial approach was contemplated by the Act, the appellate authority was bound to follow the principles of natural justice. He urges that a report from the S. D. O. was considered, but this report was not read out to the advocate for the appellant. The appellant in consequence did not get any opportunity to meet the facts or circumstances brought out in the report which could lead to an inference against him. The contention does not appear to me to be supported by the authorities to which reference has been made by the learned counsel. Two English cases have been relied on, namely--'R. v. City of Westminster Assessment Committee', 1940-4 All E. R. 132 (O) and--'R. v. Architects' Registration Tribunal, Jaggar, exparte'; 1945-2 All E. R. 131 (P). In--'1940-4 All E. R. 132 (O)', it was held that the committee (assessment committee) was bound to hear and determine the objection, and the use of these words in Sub-section 6 was enough to show that the function which it was exercising was, as Lord Sumner said in--'London County Council v. Islington Assessment Committee', (1915) A. C. 762 at p. 732 (P), ''clearly judicial'. In--'1945-2 All E. R. 131 (Q)', the case was under the Architects' Registration Act, 1938 (C. 54, Section 2 & 4). In this Act, a tribunal was set up to which anybody whose application had been refused by the council could go on appeal from the decision of the council. The tribunal was empowered to hear the complaint of an applicant who had been refused to be made a registered architect by the council. Section 2 of the Act provided that any person who could prove to the satisfaction of the council or on an appeal under this section to the satisfaction of the tribunal hearing the appeal that at the date of the passing of the Act he was or had been practising as an architect in the United Kingdom or in some other part of His Majesty's dominion, would be entitled to be registered. The tribunal had the power to determine its own procedure for the disposal of appeals. The tribunal in that case was treated as invested with functions of a quasi-judicial character, and this point was not in dispute, it was held that if
'a real and effective opportunity of meeting any relative allegations made against a person is not given when the committee or the tribunal concerned is a quasi-judicial tribunal, then it is contrary to natural justice and an infringement of the rule that justice must always be seen to be done.'
In this case, the principles of natural justice were invoked because the authorities dealing with the matter were treated as quasi-judicial. These cases do not support the contention raised.
49. The learned counsel has also referred to--'AIR 1950' S. C. 222 (M)'. He has referred to several passages from this judgment. It is not necessary to refer to all those passages or to reproduce them. We are bound by the decision of the case and that, in my opinion, does not support the contention that wherever there is a right of appeal, it follows that a judicial approach is contemplated.
50. As to the report, the contention is that at the time of the appeal, O. P. No. 3 (Deputy Minister of Revenue) perused the report submitted by the S. D. O., Sibsagar. The contents of this report were not disclosed to the petitioner, nor was he given an opportunity to controvert all the statements contained therein. The statement is made in Para. 6 of the petition. The acting General Manager of the Company has put in an affidavit, in which it is stated that the allegations made in Para. 6 were based on information which he believed to be true. In the affidavit, in opposition, it is affirmed that the allegations made in Para. 6 are misleading, that the S. D. O. who had earlier submitted his report was present before the Dy. Minister who heard the appeal, that the contents of the report were read over by the Dy. Minister before the appellant's advocate before he began his arguments. The petitioner had thus full opportunity to controvert the statements contained in that report. The Dy. Minister has also put in an affidavit. In this it is also affirmed that the report submitted by the S. D. O. was read over and that the learned advocate for the petitioner was aware of the contents and had full opportunity of controverting the statements contained in the report. The affidavits from the Opposite Parties are by officers of the Government who were present and who have made the statements from personal knowledge. The affidavit from the side of the petitioner is of the Acting Manager who himself was not present. No affidavit from the advocate who appeared on behalf of the petitioner has been put in. He alone could speak from personal knowledge. It would be difficult, in these circumstances, to hold, on the existing material, that the report was not read or that the principles of natural justice were not complied with, though, as held above, there was no obligation on the appellate authority to grant a hearing or to divulge the contents of the report which was submitted to it for its administrative determination of the appeal.
51. The impugned orders being administrative, they could be quashed only if the authority passing the orders exceeded its jurisdiction or if it could be shown that the orders were made mala fide.
52. In regard to jurisdiction, the position is that it is for the requisitioning authority to decide subjectively if it is necessary for any of the purposes contained in the Act to requisition the property. It was found necessary to requisition the property for the purposes mentioned in Section 3, a matter which was within the jurisdiction of the original as well as the appellate authority. In coming to this decision, these authorities have not exceeded their jurisdiction.
53. The order of the S. D. O., dated 15-10-51, clearly states that the land is requisitioned for allotment to landless indigenous actual cultivators. The Act permits requisitioning for giving land to the landless, flood-affected or displaced persons. The object of the requisition in this case is to give the land to the landless. This purpose or object is within the ambit of Section 3(1). The fact that the landless persons to whom land is desired to be allotted happen to be indigenous, actual cultivators, would not take the order out of the purview of Section 3 (1) of the Assam Act. The class of landless persons contemplated by the Assam Act Includes landless people who may be indigenous.
An insistence of their being actual cultivators also cannot be regarded as opposed to the purposes of the Act. There is no point in giving land to persons who cannot cultivate. In fact, it has not been argued that the allotment of the land to actual cultivators would be something not covered by the provisions of Section 3 (1). There is, therefore, no excess of jurisdiction.
54. The orders are also attacked on the ground that they have been made mala fide. It is pointed out that in 1950 an area covering 400 acres of undeveloped land, which was part of the tea estate, was requisitioned by the Government and that the area has not so far been allotted or settled in conformity with the provisions of the Act. It is suggested that the area requisitioned by the order dated 15-10-51 cannot be regarded as really necessary for allotment. It is also urged that the area is under cultivation of food crops. It was not unused or surplus. The cultivation was ancillary to the purposes of tea industry which the estate is carrying on. The persons to whom land is sought to be allotted are not landless. The requisitioned land includes buildings of value wherein the owners had actually resided continually for more than a year immediately preceding the date of the said order. It was practically taking away land from one group of cultivators for giving it to another group of cultivators, and that the land was being used for charitable purposes within the meaning of the Explanation to the proviso to Section 3 (1) of the Act.
55. Whether the land is lying fallow and uncultivated and is not being used for the purposes for which the grant or settlement was made, or whether it is under cultivation for purposes incidental to the tea industry, as alleged by the petitioner, is immaterial so far as jurisdiction to requisition or acquire it is concerned. The Act permite acquisition of any land. 'Land' has been defined in Section 2 (a). It bears the same meaning as is given to it in the Land Acquisition Act and includes trees, buildings and standing crops on it. Easements are also included. Even if, therefore, the allegations of the petitioner are correct, the Government obviously had the jurisdiction to requisition it. If, as is alleged, it really is land under cultivation for purposes incidental to the tea industry, the petitioner would be entitled to compensation, in accordance with the principles set out in Sub-section (1) of Section 23 of the Land Acquisition Act, subject to the qualification that the maximum it would be entitled to would not exceed the average market value of three consecutive years immediately preceding March, 1946. But if it is lying fallow and uncultivated, the compensation is to be determined on a different basis. The parties are at issue as to the nature of the land. We have conflicting affidavits, but we need not decide about the nature of the land as in either case, it is liable to be requisitioned. The question of compensation is outside the scope of the enquiry. The act of requisitioning cannot be regarded as outside the scope of the Assam Act.
56. It has been urged that a huge sum has been invested on this land. That will also bear on the question of compensation only.
57. The contention that it is taking away land from one group of cultivators and giving it to another, should also not prevail. If land has already been given by the petitioner to cultivators and the petitioner has lost all interest, it would not be entitled to apply to the High Court for prerogative write under Article 226 of the Constitution. Persons who actually hold the land would be interested parties. They are not before the Court. But the fact is that it has been clearly stated in the petition that the petitioner is the owner of the estate called Cherideo Purbut Tea Estate. In Para. 3, it is distinctly stated that the area which forms the subject-matter of requisition was included in that estate. The petitioner is objecting to its requisition as owner of the land. It is clear that the lands vested in the petitioner immediately before the order of requisition was passed. If certain persons were cultivating some parts of the area requisitioned, they are doing so with permission. They would be there by sufferance. It would not be taking land from them and giving to others, for, assuming that some garden employees were permitted to cultivate, they, on the petitioner's own showing, have acquired no legal rights in the land.
58. It is next contended, first, that the land requisitioned includes buildings of value wherein the owners had actually resided continuously for more than a year immediately preceding the date of the said order, and secondly, that the land is being used for charitable purposes within the meaning of the Explanation to the proviso to Section 2(1) of the Act, namely, to advance general public utility. These allegations are denied by the Opposite Party by a counter affidavit. There are allegations and counter allegations. The determination of these questions of fact is not possible on these affidavits. If it could be established that the owner landlord or the tenant continuously resided in a building for a period of one year immediately preceding the date of the order, the building could not be made the subject-matter of acquisition under Section 3 (1). The order requisitioning it to that extent would be in excess of jurisdiction. Similarly, if it could be established that the land was being used for charitable purposes within the meaning of the Explanation to the proviso to Section 3 (1), it would not be capable of being requisitioned. It is not possible to decide these questions of fact in the present proceedings. These matters can be more appropriately decided by the Civil Court in a regular suit. The remedy under Article 226 is of an extraordinary nature and may be availed of in cases of serious injury where there is no other adequate and effective remedy available. It cannot be utilised as a substitute for ordinary remedies. It is not a case where rights would be defeated if prompt relief is not given, which, from the very nature of things, may not be possible to give if evidence has to be taken for deciding issues that arise.
59. The allegation that about 400 acres of land requisitioned before has not been allotted so far, is also denied. Even if true, it has no bearing on the competency of the requisitioning authorities to requisition some other land. The counter affidavit brings out that these lands have already been allotted. We are not satisfied that any delay in the allotment of that land would be an adequate basis for finding that land requisitioned by the order of the S. D. O. in October 1952, was requisitioned mala fide.
60. We do not think that in the circumstances of this case, the charge of mala fides can be regarded as substantiated. No actual bias or prejudice has been attributed to the requisitioning authorities. The requisition is for a public purpose. The property was requisitioned under a valid enactment. If on facts, it can be shown that the requisitioning authorities exceeded their jurisdiction to any extent, the redress must be obtained by a regular suit.
61. In the result, this petition must be dismissed, and we order accordingly. We make no order as to costs. The Rule is discharged.
62. The case involves substantial questions of law as to the interpretation of the Constitution.
Leave to appeal to the Supreme Court is, therefore, allowed to the petitioner under Article 132, Clause (1) of the Constitution,
63. I agree.