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Jibaneswar Bose and ors. Vs. A.B. Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 209 of 1963
Judge
Reported inAIR1964Cal45
ActsConstitution of India - Articles 19, 19(5), 19(6), 31 and 31(1); ;West Bengal Closing of Canals Act, 1959
AppellantJibaneswar Bose and ors.
RespondentA.B. Mukherjee and ors.
Appellant AdvocateS. Roy and ;Tarun Bose, Advs.
Respondent AdvocateAdv. General and ;M.V. Sen, Adv.
Cases Referred and Dwarkadas v. Sholapur Spinning and Weaving Co. Ltd.
Excerpt:
- .....between calcutta and east bengal. the navigational canals above named, falling within the limit of west bengal, lost their importance as a line of inland navigation for boat traffic, after the partition of bengal, in the year 1947. 2. calcutta, as is well known, is a growing and expanding town. it appears from the affidavit-in-opposition filed on behalf of the respondents, that the circular canal, locked as it is at the hooghly and dhapa ends, declined to an unhygienic condition due to the difficulty of flushing it with fresh water. similar became the condition of the new-cut canal. it further appears from the affidavit-in-opposition, that both the canals are rapidly silting up and are in a state of degeneration and that their further existence is unnecessary. it is also stated in the.....
Judgment:
ORDER

B.N. Banerjee, J.

1. There are, on the northern and eastern sides of Calcutta, certain canals, which are navigational canals. Of them one is known as the Circular Canal, which runs on the northern and eastern sides of Calcutta, between River Hooghly and Orange Sura at Dhapa. Another canal is known as the New-cut Canal, which takes off from Circular Canal at Ultadanga and terminates at its outfall into the Central Lake Channel, near Dhapa lock. There are also other canals,, with which I am not concerned in this Rule. The two canals abovenamed were excavated respectively in the years 1829 and 1859. The two canals formedpart of a navigational canal system, operated mainly for the purpose of maintaining communication between Calcutta and East Bengal. The navigational canals above named, falling within the limit of West Bengal, lost their importance as a line of inland navigation for boat traffic, after the partition of Bengal, in the year 1947.

2. Calcutta, as is well known, is a growing and expanding town. It appears from the affidavit-in-opposition filed on behalf of the respondents, that the Circular Canal, locked as it is at the Hooghly and Dhapa ends, declined to an unhygienic condition due to the difficulty of flushing it with fresh water. Similar became the condition of the New-cut Canal. It further appears from the affidavit-in-opposition, that both the canals are rapidly silting up and are in a state of degeneration and that their further existence is unnecessary. It is also stated in the affidavit-in-opposition that due to the existence of the two canals, extension of Calcutta towards the east has become difficult. According to the stand taken by the respondents, it is necessary to fill up both the canals for the two-fold purpose of removing unhygienic conditions and facilitating the extension of the town of Calcutta towards the east.

3. It also appears from the affidavit-in-opposition that the Drainage Enquiry Committee, appointed by the then Government of Bengal, in the year 1945, to investigate into the drainage problem of Calcutta and the surrounding areas, recommended the filling up of a portion of Circular Canal from Ultadanga to Dhapa and the New-cut Canal from its junction with the Kristopur Canal upto Dhapa Lock. The technical committee on Greater Calcutta Drainage, appointed by the Government of West Bengal, in December, 1947, also endorsed the recommendation of the Drainage Enquiry Committee.

4. The canals may have been originally Government properties. By long user, the public may have acquired a public high-way right in the said canals. The authority to deny right to ply boats, in that portion of canal system known as Shyambazar-Bhangar-Kulti canal, was challenged before this Court dn the case of Messrs. Roy and Company v. Province of Bengal, S. A. No. 549 of 1950 (unreported). Das Gupta and Guha, JJ. by their judgment, dated June 29, 1959, negatived such authority. In order to take up authority to close the Circular and the New-cut Canals, despite the fact that the public may have acquired a right of navigational high-way therein, the West Bengal Legislature passed an Act known as the West Bengal Closing of Canals Act 1959. The purpose of the Legislation, as appears in the preamble, is as hereinbelow set out :

'Whereas it is expedient in the public interest to close and fill up the Circular Canal and the New Cut Canal for the promotion of public health in the city of Calcutta and in neighbouring areas; It is hereby enacted..................'

Sections 3 and 4 of the Act read as follows :

'3. (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage having the force of law, it shall be lawful for the State Government, at any time after the expiry of one month from the date of commencement of this Act, by order published in the Official Gazette, from time to time, to direct that -

(a) any canal or part thereof be permanently closed and he filled up by such agency as the State Government may think fit to employ, and

(b) the roads by the side o[ such canal or part, which are the property of the State Government, be closed to traffic either permanently or temporarily :

Provided that before closing any road the State Government shall make such arrangements as it considers necessary, for communication in the area served by such road. (2) When, in pursuance of the provisions of Sub-section (1), any canal or part thereof is closed and filled up or any canal side road is closed to traffic, the State Government may deal with the space covered by such filled up canal or part thereof or by such road, in such manner as it may consider fit.

4. No suit or other legal proceeding shall lie against the State Government in respect of any injury or damage caused by, or resulting from stoppage of navigation in the canals or of use of canal side roads, or any act done under this Act.'

5. Under powers conferred by the Act referred to above, the West Bengal Government published the following two orders, both dated May 24, 1963 : --

'No. 18-1--24 May, 1963 -- In exercise of the power conferred by Sub-section (1) of Section 3 of the West Bengal Closing of Canals Act, 1959 (West Bengal Act II of 1959), which came into force with effect from the 1st January, 1963, under this Department notification No. 29-J, dated the 30th November, 1962, the Governor is pleased hereby to direct that the part of the New Cut Canal from its junction with the Kristopur Canal up to its junction with the Beliaghata Canal at Dhapa shall be permanently closed and filled up by the Salt Lakes Reclamation and Development Board, Government of West Bengal.

By order of Governor

A. B. Mukherjea, Asstt. Secy.

No. 17-1--24th May 1963 -- In exercise of the power conferred by Sub-section (1) of section 3 of the West Bengal Closing of Canals Act, 1959 (West Bengal Act II of 1959), which came into force with effect from the 1st January, 1963, 'under this Department notification No. 29-1, dated the 30th November 1962, the Governor is pleased hereby to direct that the part of the Circular Canal from its junction with the New Cut Canal up to its junction with the Beliaghata Canal shall be permanently closed and filled up by the Salt Lakes Reclamation and Development Board, Government of West Bengal.

By order of the Governor

A. B. Mukherjea, Asstt. Secy.'

6. The petitioners are six in number. They say that they carry on business as manufacturers and dealers of packing boxes and other containers made out of timber, straw etc. For the purpose of the aforesaid business, the petitioners allege, they have to bring large quantities of timber, straw and other commodities from, the Sundarbans and the neighbouring areas. They say further that the said timber, straw and other commodities are transported from the Sunderbans and neighbouring areas by, or on behalf of, or on account of the petitioners, by boats, flats and other carriers, through waterways, and the said boats have to ply for some distance through the two canals, known as the Circular Canal and the New Cut Canal. Apart from the said business, the petitioners allege, they also carry on the business of plying boats owned by them, through the above-mentioned canals for hire or reward.

7. The petitioners felt aggrieved by the notifications, published under the West Bengal Closingof Canals Act. They felt that the closure of the two canals would make it impossible for them to ply their boats and thus prevent them from bringing timber, straw and other commodities to their places of business by boats and also prevent them from plying their boats for hire or reward. They allege that their righi to ply boat in 'the said two canals is some sort of property right and that must not be infringed in the manner sought to be done by the two notifications. They say further that they called upon the respondents not to interfere with their properly right as intended to be done by two notifications, but their demand for justice went in vain. Moreover, the respondents started pinning and blocking of the two canals, so as to retard navigation therein.

8. Aggrieved by the two notifications, the petitioners moved this Court, under Article 226 of the Constitution, praying for a writ of Certiorari for the quashing of the two notifications and for a Writ of Mandamus upon the respondents calling upon them to recall, cancel or withdraw the two notifications and for a further Writ of Mandamus upon the respondents directing them to remove the blockages from the two canals and to open the same to navigation and obtained this Rule.

9. Mr. Siddhartha Roy, learned Advocate for the petitioners, made a two-fold argument in support of this Rule. He argued, in the first place, that the blockage of the canals amounted to expropriation of the property right of the petitioners, namely, their right to ply boat therein, and since this was being done without payment of compensation to the petitioners, the act of expropriation fell within the mischief of Article 31(2) of the Constitution and the respondents must be restrained from indulging in such unconstitutional act. He argued, in the next place, that the right of plying boats in the canals was either a property right or a right to carry on business and such rights were guaranteed under Article 19(1) (f) and (g) of the Constitution. The West Bengal Closing of Canals Act of 1959, in so far as it intended to interfere or was inconsistent with the fundamental rights of the petitioners, was to that extent a piece of void legislation and no action should be permitted to be taken on the basis of such a piece of legislation.

10. In my opinion, both the arguments advanced by Mr. Roy are devoid of substance.

11. So far as the first branch of the arguments of Mr. Roy is concerned, I need refer to the language of Clauses (1), (2) and (2A) of Article 31 of the Constitution, which clauses I set out below :

'31. (1) No person shall be deprived of his property save by authority of law.

(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation for the properly so acquired or requisitioned 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; and no such law shall be called in question in any court on the ground that the compensation provided by that Jaw is not adequate.

(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisitionor requisitioning of property, notwithstanding that it deprives any person of his property'.

Clause (1) of Article 31 contains declaration of fundamental right to property in the negative form. It says that no person shall be deprived of his property save by authority of law. In other words, a citizen may be deprived of his property, provided he is so deprived by authority of law. This clause affords protection against executive expropriation of property but not against legislative expropriation. It is not the case of the petitioners that the West Bengal Legislature had not the legislative competence to enact the West Bengal Closing of Canals Act, 1959. Therefore, the attempt on the part of the respondents to close and to fill up the two canals, under authority of taw does not fall within the mischief of Clauses (1) of Article 31. Nor is Clauses (2) of Article 31 attracted, because it is nobody's case that either the business of the petitioners or their boats or any other property of theirs was or were going to be acquired or requisitioned. By the Constitution (Fourth Amendment) Act Clauses (2A) was introduced in Article 31, which I have already set out hereinbefore, and that clause makes it clear that unless property is taken away either by acquisition of by requisitioning, there is no obligation to pay 'compensation. Thus the doctrine of taking, by substantial abridgement of rights of ownership, enunciated in the cases of State of West Bengal v. Subodh Gopal, : [1954]1SCR587 and Dwarkadas v. Sholapur Spinning and Weaving Co. Ltd., : [1954]1SCR674 , has been superseded by introduction of Clauses (2A) in Article 31. The first branch of the argument of Mr. Roy, therefore, must fail.

12. I turn now to the other branch of the argument of Mr. Roy. Even if I assume, for the sake of argument, that the petitioners had the right to ply boats in the two canals and had also the right to ply such boats as part of their business and that such right had some sort of proprietary character and fell within Clauses (f) (f) and (g) of Article 19 of the Constitution even then such rights were subject to reasonable restrictions or subject to reasonable restrictions (sic) in the interest of the general public. I have already recounted the reasons for the passing of the West Bengal Closing of Canals Act 1959. I have also recounted the reasons, as disclosed in the affidavit-in-opposition, that for considerations of health of the city and for the purpose of facilitating the growth of the city towards the east both the canals need be filled up. Consideration of health and consideration for the growth of the city are certainly considerations of public interest. If on these considerations the respondents decided to fill up the two canals, it cannot be said that their action is not saved under Clauses (5) and (6) of Article 19 of the Constitution.

13. Mr. Roy contended that the closure of the two canals would create drainage problems for Calcutta, because much of the overflow from the eastern part of the city is now carried off by the two canals. He further contended that the Corporation of Calcutta was itself apprehensive of the propriety of the filling up of the canals. I am not much concerned with this branch of the argument. The filling up of the two canals may require a change in the existing drainage system. I have no reason to believe that such a change would not be effected, while filling up the two canals.

14. In the view that I take, both the arguments advanced by Mr. Roy fail. This Rule isaccordingly discharged, with costs, hearing fee being assessed at five gold mohurs.


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