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Md. Safi Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtKolkata High Court
Decided On
Case NumberCiv. Revn. Case No. 1639 of 1950
Judge
Reported inAIR1951Cal97,55CWN463
ActsWest Bengal Land Development and Planning Act, 1948 - Sections 4, 6, 7 and 8; ;General Clauses Act, 1897 - Section 6A; ;Constitution of India - Articles 19, 19(1), 19(5), 31 and 31(2); ;Land Acquisition Act, 1894; ;Code of Criminal Procedure (CrPC) - Section 426
AppellantMd. Safi
RespondentState of West Bengal and anr.
Appellant AdvocateG.P. Kar and ;Sushil Kumar Biswas, Advs.
Respondent AdvocateChandra Sekar Sen, Sr. Govt. Pleader and ;Smriti Kumar Rai Choudhury, Adv.
Cases ReferredHarries C. J. & Banerjee J. (Sudhindra Nath v. Sailendra Nath).
Excerpt:
- .....the requirements of article 31 of the constitution. the section states that the provisions of the land acquisition act 1894 shall 'so far as may be, apply.' mr. kar points out that it is not at all clear as to who is to decide as to which portion & to what extent the land acquisition, act will apply to the acquisition made under the act. the matter is lefts to the determination of somebody else. the requirements of article 31 are that everything is to be specified--the manner, the principles & the form of compensation, there should be no scope or room for any inference & mere reference to another act containing provisions for compensation or incorporation of such act by mere words of incorporation is not sufficient compliance with the constitution. mr. kar further argues that if.....
Judgment:
ORDER

Bose, J.

1. This is an appln. under Article 226 of the Constitution for a Writ in the nature of Mandamus directing the resps. to cancel or recall notfns. NOS. 3642 L. Dev. & 3644 L. Dev. both dated 4-4-1950 issued under the West Bengal Land Development & Planning Act, 1948 & also to forbear from giving effect to the said notfns.

2. The petnr. is the owner of certain lands appertaining to Cadastral Survey Plot NOS. 389, 390, 391 & 966 at Mouza Manirampur & Thana Barrackpore in the District of 24 Parganas. The petnr. cultivates the said lands & grows various kinds of vegetables thereon & sells the same at the Sadar Bazar, Barrackpore & the sale proceeds of these vegetables are alleged to be the only means of livelihood of the petnr. & his family. The lands in question have been used for the last forty years for growing high class vegetables. The petnr. has also erected a building on the said lands consisting of six rooms out-of which four rooms are let out to tenants & two rooms are occupied by the servants & workmen of the petnr. In that land there is also a cow-shed where the petnr. has kept cattle for the purpose of his cultivation. There are also two tanks on the said land where the petnr. rears fishes for sale & for domestic consumption. There are large numbers of Mango trees, Cocoanut Groves, Jack Fruit trees & Guava trees from the produce of which the petnr. derives a large annual income. As a result of certain officers of the resps having entered into the said, lands & having bored into the subsoil of the said land & having caused extensive damages to the standing crops the patnr. made enquiries & come to know that a Notfn No 3642 L. Dev. appeared in the Calcutta Gazette of 20-4-1950 to the effect that the said lands of the petnr. were likely to be required under the provisions of the West Bengal Land Development & Planning Act (Act XXI [21] of 1948). The petnr. was, however, not served with any individual notice of the purported acquisition. By another notfn. of the same date (4-4-1950) being no. 3644 L. Dev. & published in the Gazette of the same date (20-4-1950) the said lands were declared to have been acquired by the resp. The petnr made various representations to the resp. in its various depts. against the said proposed requisition but the resp. failed & neglected to consider or accede to those representations & thereby denied justice to the petnr.

3. Mr. 6. P. Kar, learned counsel for the petnr., Argues that the West Bengal Act is ultra vires & unconstitutional inasmuch as it infringes & is inconsistent with Articles 19 & 31 of the Const. Ind. It is submitted that the Act is discriminatory, expropriatory & constitutes unreasonable interference & imposes unreasonable & unwarranted restrictions on the fundamental rights of the petnr. as citizen, of India to acquire, hold & dispose of property & carry on trade or business

4. It is pointed out that the right guaranteed by the Constitution under Article 19(1)(f) is entire & complete but certain inroads cat be made to the extent provided in Clause (5) of Article 19. It is argued that Article 19 & Article 31 of the Constitution should be read together.

5. Article 31 provides:

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

(2) No property movable or immovable including any interest in or in any Co. owned in, any commercial of 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 takes possession of or acquired & either fixes the amount of compensation or specifies the principles on which & the manner in which the compensation is to be determined At given.

6. Mr. Kar submits that the West Bengal Act XXI [21] of 1948 contravenes this Article 31 inasmuch as it does not provide for payment of compensation nor does it fix the amount of compensation nor does it specify the principles on which & the manner in which the compensation is to be determined & given. The only section in the Act which touches the question of compensation is Section 8 but the wording of that section do not satisfy the requirements of Article 31 of the Constitution. The section states that the provisions of the Land Acquisition Act 1894 shall 'so far as may be, apply.' Mr. Kar points out that it is not at all clear as to who is to decide as to which portion & to what extent the Land Acquisition, Act will apply to the acquisition made under the Act. The matter is lefts to the determination of somebody else. The requirements of Article 31 are that everything is to be specified--the manner, the principles & the form of compensation, There should be no scope or room for any inference & mere reference to another Act containing provisions for compensation or incorporation of such Act by mere words of incorporation is not sufficient compliance with the Constitution. Mr. Kar further argues that if subsequently the Land Acquisition Act is repealed the provisions for compensation will be totally gone & in consequence the present Act XXI [21] of 1948 will also be deprived of the benefit of the provisions of compensation contained in the Land Acquisition Act.

7. These arguments of Mr. Kar though ingenious are however without any substance. Legislation by incorporation is of common occurrence. The words 'so far as may be, apply' in Section 8, Weat Bengal Act XXI [21] of 1948, are common words of legislation by incorporation, & is an expression interchangeable with expressions 'mutatis mutandis' & 'as far as applicable' & like expressions. References may be made to the following Act to illustrate this form of legislation, (a) Marriage Validation Act (II [2] of 1892) (Section 5), (b) Presidency Small Cause Cts. Act (XV [15] of 1882) (Section 48), (c) Succession Act (XXXIX [39] of 1925) (S. 268).

8. The effect of the words 'so far as may be, apply' is to put the provisions of the Land Acquisition Act into Act XXI [21] of 1948 just as if they had been written into it for the first time. As Lord Esher observed in In re Wood's Estate, (1886) 31 Ch. D. 607 at p. 615 : (55 L. J. Ch. 488):

'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it & the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.'

9. In other words, we must read the Act XXI [21] of 1948 in such a way as if all the provisions of the Land Acquisition Act were repeated or set out in full 'totidem verbis' in the West Bengal Act XXI 21] of 1948.

10. The object of the Land Acquisition Act, 1894 was to comprise in one general Act sundry & elaborate provisions relating to the acquisition of land needed for public purposes & for determining or assessing the amount of compensation to be paid for such acquisition & it is for avoiding the necessity of repeating such provisions in subsequent Acts dealing with such acquisitions or similar acquisitions as well as for insuring uniformity of the provisions, that the sections of the Land Acquisition Act are introduced into the subsequent Acts by employing incorporating words of legislation in the subsequent Acts.

11. The true interpretation of Section 8, West Bengal Act XXI [21] of 1948 is that all the provisions of the Land Acquisition Act have been incorporated in the Bengal Act save to the extent they are expressly varied or excepted by such Act.

12. The apprehension that the repeal of the Land Acquisition Act in future will have the effect of depriving the Bengal Act of all provisions as to compensation is absolutely baseless. It is a well settled provision of law that the repeal of a statute does not repeal such portions of the statute as have been incorporated into another statute. If the original Act is repealed the incorporated section or sections still operate in the later Act. (See (a) Clarke v. Bradlaugh, (1881) 8 Q B. D. 63: (51 L. J. Q. B. 1), which has been affirmed in (b) Jenkins v. Great Central Railway, (1912) l K. B. 1 at p. 8 : (81 L. J. K. B. 24), per Lord Coleridge J. and (c) Secretary of State v. Hindusthan Co-operative Insurance Society, 58 I. A. 259 at p. 267 : (A. I. R. (18) 1931 P. C. 149).

13. It was next contended by Mr. Kar that property of a private individual can only be acquired in public interest or for a public purpose as appears from Article 19(5) & Article 31(2) of the Constitution. It however, appears from the Notfn. issued in this case that the lands are required for 'the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control.'

This, it is submitted, is rot a public purpose as the immigrants are not citizens of India & lands taken for their use & enjoyment cannot be said to be taken for a public purpose.

14. This argument of Mr. Kar must be rejected on the simple ground that the decision of the Govt. as to the 'public purpose' is conclusive & cannot be questioned in a Ct. of law. In Section 4, West Bengal Act, the words used are 'If it is satisfied' & this makes the decision unchallengeable (See A. C. Mahomed v. Sailendra Nath, : AIR1951Cal294 ; patri Shaw v. R. N. Roy, 54 C. W. N. 855 and Province of Bombay v. Khusaldas Advani, : [1950]1SCR621 .

15. Assuming it was open to this Ct. to go into the question I hold in view of the observation of the Chief Justice in Nalini Mohan v. Dt. Magistrate of Malda, : AIR1951Cal346 , that acquisition of land for settlement of refugees is acquisition for a public purpose & is within the competence of the Govt. of the State of West Bengal. The learned Chief Justice observed (p. 301) 'of course it could make provision for the rehabilitation of refugees from foreign countries,' although in construing the words of the particular ordinance before him he came to the conclusion that the wordings of the particular Ordinance did not justify the Govt. in acquiring land for rehabilitation of a refugee driven out from Pakistan by reason of communal strife & political tension. Apart from that I fail to see why acquisition for settlement of refugees is not for a public purpose. The Govt. is under a duty to see that congestion of any particular locality is avoided & the public convenience, sanitation or health of the locality or cities are not affected. There can be no doubt that the public or the inhabitant of the State of West Bengal are benefited by accommodating the refugees & confining their activities in a suitable locality. It was on this ground that acquisition for providing accommodation for pilgrims coming from different parts of India was held to be for a public purpose by the Judicial Committee. Amulya Chandra v. Corporation of Calcutta. 49 cal. 838 at 842 : (A. I. R. (9) 1922 P. C. 333). Item 27 of the List in (Concurrent List) in Schedule VII of the Constitution also lends support to this view.

16. It was contended by Mr. Kar that Article 19(1)(f) & Article 31 should be read together & a legislation dealing with acquisition or taking possession of property should not only satisfy the requirements of Article 31 but also Article 19(5) of the Constitution. I am unable to accede to this contention. As pointed out by the learned Chief Justice of the S. C. in the case of Gopalan v. State of Madras, : 1950CriLJ1383 :

'it the Legislation is not directly in respect of any of the subjects mentioned in Article 19 but as a result of the operation of other legislation any rights guaranteed by the sub-clauses in Article 19(1) are abridged the question of the application of Article 19 does not arise.'

The contents & subject-matters of Articles 19 & 31 are not the same & they proceed to deal with the rights covered by their respective words from totally different angles. Article 19 should be read as a separate complete Article. The judgment of Das J. at p. 113 also makes the position quite clear. This view of the reading of Article 19 is reaffirmed in the subsequent case of Charanjit Lal v. Union of India, : [1950]1SCR869 & the subsequent paras , & also in a decision of this Ct. reported in 87 Cal. L. J. 140 by Harries C. J. & Banerjee J. (Sudhindra Nath v. Sailendra Nath).

17. It was also argued by Mr Kar that the Notfn. No. 3644 dated 4-4-1950 is illegal & bad as it is not made in accordance with the provisions of West Bengal Act XXI [21] of 1948. It is argued that the declarations Under Sections 4 & 7 of the Act were made simultaneously & this is not permissible. The argument appears to me to be not without substance. Section 4 lays down the manner in which declaration of a notified area is to be made. It has to be by notfn. in the Official Gazette. Until publication in the Gazette the declaration is not complete. So long as the declaration is kept in the file or desk of the Dept. concerned it is no declaration at all even though it has been drawn up in the prescribed form & signed by the prescribed Authority.

18. In the present case the declaration Under Section 4 appears to have been drawn up & signed (as the number of the Notfn. indicates) prior to the declaration purported to be made Under Section 7; but it was not announced or published prior to the publication of the declaration Under Section 7 of the Act but in fact both the declarations were published in the Gazette at the same time & became operative, from the same moment. This state of affairs, however, is not what is contemplated by the Act. Section 7 pre supposes the existence of a valid & full fledged declaration Under Section 4. It is only in respect of a notified area which has come into existence Under Section 4 of the Act that a declaration Under Section 7 read with Section 6 can be made. It is after the declaration Under Section 4 comes into force that the Provincial Govt. derives jurisdiction or power to make a declaration Under Section 7 read with Section 6. In my view the Notfn. No. 3644 L. Dev. dated 4-4 1950 made under the provisions of Section 6 read with Section 7 must be held to be invalid.

19. In the result the petn. succeeds in part. The Notfn. No. 3644 L. Dev. dated 4-4-l950 made Under Section 6 read with Section 7 of the Act XXI [21] of 1948 is cancelled. The Rule is made absolute to this extent. There will be no order as to costs.


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