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Pronab Kumar Mukherjee and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1709(W) of 1969
Judge
Reported inAIR1975Cal275
ActsWest Bengal Agricultural Lands and Fisheries (Acquisition and Resettlement) Act, 1958 - Section 7; ;Constitution of India - Article 14; ;Land Acquisition Act
AppellantPronab Kumar Mukherjee and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateN.C. Chakraborty and ;Bikas Ch. Mondal, Advs.
Respondent AdvocateP.K. Sengupta and ;Amulya Mukherjee, Advs.
Cases ReferredState of U. P. v. Kaushaliya
Excerpt:
- .....to be acquired constitute a fishery and the position has been further clarified by the special land acquisition officer in his statement in paragraph 3 of his affidavit wherein it has been admitted that the proposed acquisition of the bantra beel fishery is one amongst the 42 saline water fisheries in the district of 24 parganas which the government proposed to acquire for protecting agricultural lands.5. it is the aforesaid notification and the proposed acquisition of fishery which are the subject-matter of challenge in this rule obtained on a writ petition. though the notification is of the year 1964 the petitioners claim that they had not challenged it earlier as an objection was filed on their behalf objecting to the proposed acquisition and the paid objection was not taken up.....
Judgment:
ORDER

Anil Kumar Sen, J.

1. On August 8, 1964 the Government of West Bengal issued a notification under Section 4 of the West Bengal Agricultural Lands and Fisheries (Acquisition and Resettlement) Act (West Bengal Act XVIII of 1958) (hereinafter referred to as the said Act) declaring its intention to acquire a number of plots specified in Schedule 'D' to the notification measuring in all 248.70 acres. These plots constitute a fishery or fisheries legally known as Bantra Beel which extend over several moujas all within the Police Station Baraset, District 24 Parganas. The purpose of the acquisition as set out in the notification is as follows :

'Whereas it appears to the Governor that the cultivation and production of agricultural lands in the area described in Schedule 'A' below is affected injuriously by the establishment and existence of a fishery it is hereby declared that for the purpose of protection of lands described in Schedule 'A' and cultivation thereof, the Governor intends to acquire such fishery and all lands described in Schedule 'D' 'below.'

2. According to the petitioners the disputed plots constitute tank fisheries known as Bantra Beel and in the finally published record of rights prepared under the West Bengal Estates Acquisition Act these plots have been recorded as Gheri Mach chas. According to them such fisheries are in existence since over half a century and in the previous settlement records these plots were recorded as Layek Beel.

3. The respondents in two affidavits filed by them have not denied that the disputed plots have been recorded as Gheri Mach chas in the P. S. records though it is claimed that at one point of time the fishery was limited to an area of 57.3 acres but it has been extended to cover agricultural lands measuring 186.17 acres and 5.15 acres constitute bandh (embankment), Khal (canal) and doba (small ponds).

4. Circumstances, however, clearly establish that the disputed plots set out in Schedule 'D' to the impugned notification and proposed to be acquired constitute fishery andthe extension spoken of by the respondents is obviously the extension made prior to the date of vesting under the provisions of West Bengal Estates Acquisition Act as otherwise the petitioners could not have been entitled in law to retain so much amount of agricultural lands beyond the ceiling. The disputed notification itself establishes that the plots sought to be acquired constitute a fishery and the position has been further clarified by the Special Land Acquisition Officer in his statement in paragraph 3 of his affidavit wherein it has been admitted that the proposed acquisition of the Bantra Beel fishery is one amongst the 42 saline water fisheries in the District of 24 Parganas which the Government proposed to acquire for protecting agricultural lands.

5. It is the aforesaid notification and the proposed acquisition of fishery which are the subject-matter of challenge in this Rule obtained on a writ petition. Though the notification is of the year 1964 the petitioners claim that they had not challenged it earlier as an objection was filed on their behalf objecting to the proposed acquisition and the paid objection was not taken up for hearing before May 20, 1969 when the petitioners came to understand that the respondents are proceeding to implement and proceed with the proposed acquisition. The petitioners are disputing the proposed acquisition under the aforesaid notification on one fundamental objection. They claim that if the said Act authorises acquisition of fisheries as such on payment of inadequate compensation as provided for in Section 7 thereof then the statute should be declared void being violative of Article 14 of the Constitution. Two important questions arise for consideration in this Rule and they are (1) whether and how far the said Act infringes Article 14 of the Constitution and (2) whether the acquisition of a fishery like, the present one comes within the sanction of the Act.

6. The Rule is being contested by the respondents and as pointed out hereinbefore two affidavits have been filed in support of their offence. It is not m dispute by the respondents that they proposed to acquire the disputed plots under the provisions of the said Act and in accordance thereof.

7. Mr. Chakraborty, appearing in support of this Rule, has coutended that if it be held that the provisions of the said Act authorise acquisition of fisheries as such, then this Court should strike down the Act as violative of Article 14 of the Constitution. He contends that compensation as provided for by Section 7 of the Act is much too disadvantageous and inadequate when compared with compensation payable under Section 23 if the Land Acquisition Act, 1894. According to him the disputed fisheries could have been acquired by the State Government for the very same public purpose for which they are now being proposed to be acquired for some other public purpose under the provisions ofthe Land Acquisition Act. It is further suggested by him that a contiguous fishery could similarly be acquired by the State Government for a purpose similar to the one specified in the impugned notification or for any other public purpose under the provisions of the said Land Acquisition Act. Therefore, it is claimed an arbitrary choice lies with the Government to discriminate and acquire fisheries under either of the two Acts and thus deprive a particular owner of adequate compensation when the acquisition is made under the provisions of the said Act as in the present case. According to Mr. Chakraborty the provisions of this. Act enables the State Government to discriminate in the matter of acquisition of lands between the similarly situated owners. Such an enactment must, therefore, be held to be violative of Article 14 of the Constitution. Mr. Chakraborty has gone on to contend that Section 7 is an inseverable part of the statute and if this provision be adjudged to be unconstitutional the entire Act must fail and be struck down as otherwise there will be no provision for payment of any compensation in case of acquisition under the said Act. Anticipating a defence which may be taken by the respondents Mr. Chakraborty has contended that Article 31-A(1)(a) cannot protect this statute inasmuch as what is proposed to be acquired is not an estate as defined by Article 31-A(2) and also because these tank fisheries which are retained by the petitioners within the ceiling permitted by the West Bengal Estates Acquisition Act cannot be acquired under a law which does not provide for payment of market value as compensation.

8 The learned Government Pleader, appearing on behalf of the respondents, has not disputed the fact that Section 7 of the said Act does not provide for payment of adequate compensation when compared to the compension provided for by the Land Acquisition Act nor has he disputed the position that Section 7 is an inseverable part of the statute so that if that section be struck down the entire statute would fail. He has, however, contended that the differentiation made by the statute under consideration is based on a reasonable classification and as such is not violative of Article 14. As anticipated by Mr. Chakraborty, the learned Government Pleader has further raised a defence that in any event the statute now under consideration is well protected by Article 31-A of the Constitution and as such cannot be challenged as violative of Article 14.

9. On the controversies thus raised by the learned Advocates it would be necessary first to consider whether the provisions of the said Act are violative of Article 14 or not. The other controversial issue, as to whether the statute under consideration can get the protection of Article 31-A, would arise for consideration, if and when it is found that the provisions of the said Act or any part thereof are really violative of Article 14.

10. The preamble of the Act recites the Act to be 'an Act to provide for the acquisition of agricultural land and fisheries and resettlement of agricultural lands for certain purposes.' The object specified is 'whereas it is expedient in the public interest to provide for the protection of agricultural lands, the cultivation or production whereof is injuriously affected by fisheries and for that purpose to provide for acquisition of such lands and fisheries and for the resettlement of such lands for agricultural purposes.' Section 4 is in following terms :

'Section 4. Whenever it appears to the State that the cultivation or production of agricultural lands in any area is affected or is likely to be affected injuriously by the establishment or existence of any fishery in such area or by extension of such fishery by the inclusion of adjoining lands therein or in any other manner the State Government may, bynotification in the Official Gazette, declare its intention to acquire such fishery and all hinds within the area and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the notified area in such manner as may be prescribed.'

Section 5 provides for filing of an objection as also disposal thereof on a hearing being given to the person filing the objection. Section 6 provides for finalisation of the acquisition as in Section 6 of the Land Acquisition Act and also provides to delivery of possession. Section 7 (1) enjoins that any fishery or land being acquired under Section 6 compensation is to be paid in the manner provided in that section. Section 7 (2), which prescribes the manner of determination of compensation, is set out hereunder :

'Section 7 (2) -- Compensation payable under Sub-section (1) shall be determined by the Collector according to the following principles :--

(a)

for agricultural or other lands --

(i)

for the first five hundred rupees of the net average annual income .

ten times such income.

(ii)

for thenext five hundred rupees of the net average annual income .

eighttimes such income.

(iii)

for thenext five hundred rupees of the net average annual income .

fourtimes such income.

(iv)

for thebalance of the net average annual income

twotimes such income.

(b)

for afishery --

(i)

for thefirst five thousand rupees of the net average annual income .

threetimes such income.

(ii)

for thebalance of the net average annual income

twotimes such income.

Explanation-- Net average annual income shall mean-

(a) in the case of agricultural land,-- one third of the average value of the produce derived or derivable from such land during a period of five years immediately preceding the date of vesting.

(b) in the case of other land, the average income, less two per cent., of such income, derived or derivable therefrom during a period of five years immediately preceding the date of vesting and

(c) in the case of a fishery, one-third of the average income from the fishery during a period of five years immediately preceding the date of vesting.'

Section 9 provides for an award of competition and Section 10 provides for an appeal. Section 11 has a material bearing and it is set out hereunder :

'Section 11.-- On acquisition of the fishery and lands under this Act the State Government may take such action as it may think fit for the reclamation or protection of lands affected or likely to be affected by the fishery and may thereafter resettle the lands for cultivation on payment of such consideration as may be determined by the State Government so, however, that such consideration shall notexceed the compensation payable for such land under Section 7 :

Provided that any such land as was previously cultivated and is fit for cultivation shall be resettled with the person who last cultivated it, or, if such person is not agreeable to take resettlement of the land or cannot be traced, with any other person, on the terms and conditions on which the same was previously held by the person who last cultivated it. Section 12-- The State Government may deal with the fishery and any land remaining after resettlement referred to in Section 11 in such manner as may be prescribed.'

Section 16 authorises the State Government to make rules for the purposes of this Act.

11. It is evident that the Act authorises acquisition of agricultural lands and fisheries within certain well defined limitations.

12. Reading Sections 4 and 6 in the light of the object of the enactment it is apparent that the Act authorises acquisition of such fisheries as are injuriously affecting production and cultivation of agricultural lands and for a limited purpose viz. for the protection of the agricultural lands -- the cultivation or production whereof is injuriously being affected by the fisheries. Though the acquisition is sanctioned within such limits it cannot be disputed that in case of such acquisition compensation payable is neither the market value nor the money equivalent of the property acquired. It is, on the other hand, a fictional amount to be determined in accordance with Section 7 (2). Compensation so determined is undoubtedly far less than the true value of the property acquired and in any event, admittedly is far more disadvantageous than when the compensation is payable under the Land Acquisition Act of 1894. This being the position, Mr. Chakraborty strongly relies on the principles laid down by the Supreme Court in several cases following their earlier decision in the case of P. V. Mudaliar v. The Special Deputy Collector, Madras. : [1965]1SCR614 . Strong reliance is placed on the decisions of the Supreme Court in the case of Nagpur Improvement Trust v. Vithal Rao, : [1973]3SCR39 and Omprakash v. The State of U. P., : [1974]2SCR731 . Reliance is also placed on two Bench decisions of this Court in the cases of State of West Bengal v: A. N. Mitter, : AIR1973Cal478 and Monoranjan Routh v. State of West Bengal, : AIR1972Cal487 .

13. It should, however, be noted that the provisions of the statutes under consideration in the decisions relied on by Mr. Chakraborty are materially distinguishable. In most of these cases, the Acts under consideration authorised acquisition of properties for the planning or housing schemes but in providing for compensation these Acts adopted the provisions of the Land Acquisition Act with a modification which prejudicially affected the quantum of compensation. In none of these cases, however, the properties to be acquired had been specified by the statute nor did the requirement for the acquisition arise due to circumstances created by the properties to be acquired as in the case contemplated by the present statute. Under the provisions of the Acts there under consideration it was open to the acquiring authority to choose one or other properties at their discretion and there was no reasonable foundation for differentiation. Only ground for differentiation which could be suggested was the object or purpose of acquisition. But it was held that a differentiation based on the difference in the purpose or the object of the acquisition cannot be said to be based on any reasonable foundation. To quote the words of Sikri, C. J. in the Nagpur Improvement Trust's case : [1973]3SCR39 (supra) :

'Can the Legislature says that for a hospital land will be acquired at 50 per cent. of the market value, for a school at 60 per cent. of the value and for a Government building at 70 per cent. of the market value? All these objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or file other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies adifferent treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the Land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of authority acquiring the land? In other words, can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.

It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.'

14. In considering the question whether the Statute now under consideration or more particularly Section 7 thereof is violative of Article 14 or not, one must be conscious of certain well settled principles. Article 14 does not contemplate any abstract principles of equality. It 'forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.' It permits classification when it is rational and is based on intelligible differentia and there is reasonable nexus between the differentia and the avowed policy and object. Not to come within the prohibition of this Act the statute must stand the dual test of (1) it being established that the classification made is based on an intelligible differentia which distinguishes persons or things grouped together from others excluded and (2) the basis of differentiation bearing a reasonable nexus with the object. Reference may be made to cases Budhan v. State of Bihar, : 1955CriLJ374 ; Ramkrishna v. Tendolkar, : [1959]1SCR279 and Panduranga Rao v. Andhra Pradesh P. S. Commission, : [1963]1SCR707 .

15. Applying these tests to the present case, in my considered opinion, the Statute would stand both the tests. The Statute under consideration does not authorise acquisition of any or every fishery or other property. It authorises acquisition of such fisheries only as are injuriously affecting production and cultivation in agricultural lands together with such agricultural lands. Such fisheries in so far as they are impeding and injuring agricultural production are detrimental to the national economy and if they be classified in a separate category for legislation, it cannot be said that there is no reasonable basis for a separate classification. It may be true that for the purpose of acquisition of such fisheries the Statutedoes not prescribe adequate compensation as in the Land Acquisition Act. But it should be remembered that such acquisition is not for any or every public purpose. The purpose of acquisition sanctioned by the Statute is limited to prevention of the very injury brought about by the fisheries themselves. Therefore if in such circumstances, the legislature thought it just and proper to differentiate in the matter of payment of compensation, this Court cannot say that the basis of differentiation bears no reasonable relation to the object. After all there is the general rule of presumption of constitutionality arising in favour of a Statute. It should ordinarily be presumed that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds. Such presumption in this case is further borne out by grounds apparent on the object and scheme of the Statute. Reference may be made to the cases of State of West Bengal v. Anwar Ali. : 1952CriLJ510 and Ramkrishna v. Tendolkar, : [1959]1SCR279 . Unlike the cases relied on by Mr. Chakraborty here the ground for the differentiation is not referable only to a particular object or purpose of acquisition. On the other hand, the ground for differentiation is the particular character of the property to be acquired with its injurious effects on the rural economy which effect itself necessitates the acquisition. There is in existence ample reasons to justify a different treatment to the individual rights of owners of such fisheries.

16. On the object and the scheme of the Act, the differentiation is made not merely on the object of acquisition but because of the public harm and injury emanating from the subject-matter of classification and intended to be prevented. Differential treatment for the purpose of legislation founded on such a ground is well within the constitutional sanction of reasonable classification. In the case of Carrie Bruck v. T. H. Bell, (1926) 274 US 200 = 71 L Ed 1000 the question raised was as to whether a Statute providing for sterilization of defectives violates the equal protection clause of the Federal Constitution of United States and it was ruled by the Supreme Court that it does not. Delivering the opinion of the Court Justice Holmes observed :--

'We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from containing their kind. The principle that sustains compulsory vaccination is broad enough to cover omitting the Fallopian tubes.'

Such is also the view of our Supreme Court underlying the decision in the case of State of U. P. v. Kaushaliya, : [1964]4SCR1002 . Judged from this point of view, it must be held that though the Statute under consideration differentiates the properties brought within its pale in the matter of payment of compensation, yet such differentiation being based on a reasonable classification and having rational relation to the object sought to be achieved by the Statute, must be held not to be violative of Article 14. The first point raised by Mr. Chakraborty therefore fails and is overruled.

17. The Act for reasons given hereinbefore, being held to be not violative of Article 14, the other controversial issue raised viz. as to whether the Act can get the protection of Article 31-A(i)(a) or not does not arise for consideration. That the Act otherwise fulfils the requirement of Article 31 as it stands after amendment has not been disputed before me.

18. The only question that now remains for consideration is as to whether a fishery like the one under proposed acquisition comes within the sanction of the Act. In my view, the Act does not authorise acquisition of any or every fishery. Had it done so it would have been clearly discriminatory. It authorises acquisition of only such of the fisheries as are themselves injuriously affecting the rural economy by adversely affecting cultivation and production. On the face of the notification the fishery in question is one which is adversely affecting cultivation and production, so that the proposed acquisition is well within the sanction of the Statute. Mr. Chakraborty, however, contends that it does not really do so. Such an issue has first to be gone into in the adjudication on the objections filed under Section 5 (1) of the Act. If the petitioner can substantiate such a case on facts, obviously the Act will be of no avail to the respondents. But when such an adjudication is yet pending and when the acquisition itself has not been finalised, this Court cannot go into such an issue and prejudge things. I must therefore hold that the second question raised is yet premature.

19. On the conclusions as above, this application fails and the Rule is discharged.

20. There will in the circumstances be no order as to costs.

21. All the interim orders are vacated.

22. Let the operation of this order remain stayed for a period of three weeks from this date.


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