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Aswini Kumar Nath Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2257 of 1951
Judge
Reported inAIR1952Cal679
ActsWest Bengal Land Development and Planning Act, 1948 - Sections 4, 5, 6, 7 and 8; ; West Bengal Land Development and Planning Rules - Rules 5; ; Constitution of India - Articles 14, 19, 31, 31(2) and 246; ;Government of India Act, 1935
AppellantAswini Kumar Nath
RespondentState of West Bengal and ors.
Appellant AdvocateJagannath Gangopadhyay, Adv.
Respondent AdvocateBinayak Nath Banerjee and ; Smriti Kumar Rai Chaudhury, Advs.
DispositionPetition allowed
Excerpt:
- .....for acquisition under the act will be determined or assessed according to the provisions of the land acquisition act. at page 794 the following observation occurs:'i think there can be no doubt that the impugned provision fixing the maximum price of the land at its market value on december 31, 1946 is severable from the remainder of the proviso and could be eliminated from the act leaving the act quite workable. without this provision, the market value at the date of the notification as ascertained by the provisions of the land acquisition act would apply and therefore the act would be quite effective.'8. the expression 'so far as may apply' in section 8 makes it clear that the provisions as to compensation are applicable to acquisition under the west bengal land development and.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for an appropriate Writ directing the opposite parties to withdraw and/or cancel the orders of acquisition and certain notifications issued under the West Bengal Land Development and Planning Act.

2. The petitioner is the owner of certain plots of lands in Mauza Hatinagar and Mauza Shibpore within the jurisdiction of Berhampore Police Station in the district of Murshidabad. The particulars of such lands are set out in paragraph 5' of the petition. It is alleged that some of these lands are tenanted and some are under cultivation of the petitioner. It is alleged that for some time past certain refugees have been trespassing upon the lands of the petitioner under the authority of the opposite parties and they are cutting down trees and making excavations and are causing damage to the petitioner's lands. It is alleged that on the 30th November, 1950, two notifications, one bearing No. 12676 L. Dev. dated the 16th November, 1950, purported to be made under Section 4 of the West Bengal Land Development and Planning Act and another bearing No. 12678 L. Dev. also dated the 16th November, 1950, and purporting to be made under Section 6 of the said Act were published in the Calcutta Gazette in respect of the petitioner's lands in the Shibpore Mouza and, on the 15th February 1951, two notifications bearing Nos. 1548 L. Dev. and 1550 L. Dev. both dated the 12th February 1951, purported to be made under sees. 4 and 6 respectively of the said Act were simultaneously published in respect of the petitioner's lands in Mouza Hatinagar.

Thereafter, the petitioner approached the opposite party No 2, the Collector for release of the petitioner's lands but this was not done. Demands of justice were made on behalf of the petitioner but with no effect. It is alleged in the petition that possession of the lands is with the petitioner. This fact is however disputed by the opposite parties. As the petitioner has failed to obtain any redress at the hands of the opposite parties, he has moved this Court for the reliefs stated above. On behalf of the opposite parties, the counter-affidavit has been affirmed by one Atul Chandra Bala who is a Kunungo under the Refugee and Rehabilitation Directorate attached to the Murshidabad Collectorate. In paragraph 4 of the said counter-affidavit, it is stated that the-proposal for acquisition of certain lands in Mouzas Hatinagar and Shibpore was submitted to the Refugee Rehabilitation Commissioner, West Bengal, by the Collector of Murshidabad, that the schemes in respect thereof were approved by the Land Planning Committee and' that thereafter notifications under Section 4 and declaration under Section 6 of the Land Development and Planning Act were published in the Calcutta Gazette in respect of the above schemes, namely Hatinagar and Shibpore Schemes respectively.

On the 26th February 1951, the possession of the lands comprised in the Hatinagar Scheme was taken but out of this area certain portion was released by the District Magistrate after investigation and the rest of the lands including the lands of the petitioner is under acquisition and most of the lands have been, allotted to several displaced agriculturist families who have taken possession of the different plots of lands between the 26th June 1951 and 15th July 1951 and have subsequently constructed houses thereon and brought the agricultural lands under cultivation, and similarly in respect of the Shibpore Scheme also a small portion of the land was released & some portions of the scheme lands have been distributed to the refugees who have also constructed houses thereon and have also brought the agricultural lands under cultivation. In sub-paragraph 5 of paragraph 4, it is stated that it' was subsequently thought desirable to issue a fresh declaration under Section 6 in supersession of the previous declaration under Section 6 in respect of the lands in question and this declaration was dated, the 14th May 1951 and published in the Calcutta Gazette of the 31st May 1951.

This subsequent declaration dated 14th May is stated to be in respect of the Hatinagar Scheme and it appears that a fresh declaration was also issued in respect of the Shibpore Scheme and was published in the Gazette of the 21st June 1951 and it is further stated that the previous declarations under Section 6 of the said Act in respect of both the schemes were eventually cancelled. It is further stated in paragraph 9 (a) and 10 of the counter-affidavit that notices under Section 4 of the Act were duly published in the office of the Union Board and at other convenient places in the locality. The Collector considered the prayers of the petitioner and he was satisfied that there were no valid reasons for releasing the plots from acquisition. The Notification No. 5890 L. Dev. dated the 14th May 1951 and published in the Calcutta Gazette of the 31st May 1951 and the Notification No. 7176 L. Dev. dated the 4th June 1951 & published in the Calcutta Gazette of the 21st June 1951 have been produced before me, and it appears therefrom that these notications were purported to have been made under Section 6 read with Section 7 of the Act. They are not notifications under Section 6 simpliciter. They purported to be combined notifications under those two sections.

3. In view of my judgment delivered in 'MD. SAFI v. STATE OF WEST BENGAL' 55 Cal W N 463, the declarations made under Section 6 and published on the 30th November 1950, and 15th February 1951, must be held to be invalid having been simultaneously published with the notifications under Section 4 of the Act. The question then arises whether the fresh declarations made under Section 6 read with Section 7 of the Act and published on the 31st May 1951 and 21st June 1951 were valid declarations in the facts and circumstances of this case. It appears from the facts stated in the counter-affidavit to which I have already referred in the earlier part of this judgment that a full-fledged scheme has been prepared in respect of both Hatinagar and Shibpore lands and the schemes are still being worked out and there is nothing in the affidavit to show that the said schemes have been abandoned. It is expressly stated in the affidavit that the subsequent declarations under Section 6 read with Section 7 have been made in respect of the said two schemes. It is difficult to appreciate how in the circumstances the provisions of Section 7 of the Act could be invoked. In order that See. 7 can be attracted, it is to be established that the Provincial Government was satisfied that the preparation of a development scheme was likely to be delayed and it was after the Government was satisfied in this respect that they could make a declaration under Section. 6 in respect of the notified area or any part thereof though no development scheme has been prepared or sanctioned under Section 5.

It is clear however from the facts stated in the affidavit as I have pointed out before that schemes have been prepared in respect of the lands in question. It is clear from a perusal of Section 5 of the Act and the various sub-rules of Rule 5 of the Land Development and Planning Rules that a distinction has been drawn between the actual preparation of the scheme, the submission of the scheme for sanction and the sanction of the scheme. The Provincial Government first directs the Land Planning Committee or a Company to prepare a development scheme and after the scheme is prepared, it is submitted for local enquiry to the Collector of the district or any other officer authorised by the Collector in this behalf giving persons interested an opportunity of making representations against the scheme and then the scheme is submitted to the Provincial Government for sanction accompanied by the original scheme, the report of the enquiry held by the Collector, the representations and objections made and the recommendation of the Committee.

The schemes having been prepared in this case, there was no question of any delay being occasioned by reason of the preparation of the schemes so as to attract the operation of Section 7 of the Act. It must therefore be held that the combined declarations under Section 6 read with Section 7 are bad. Assuming however that these Notifications published on the 31st May 1951 and 21st June 1951 can be construed as notifications under section 6 only, then, it appears from the facts stated in the affidavit and it is also conceded by the learned Advocate appearing for the opposite parties that no opportunity was given to the petitioner to make any representations or objections against the scheme and therefore there cannot in any event be a valid declaration under Section 6 alone of the Act.

As I have pointed out the scheme of Rule 5(2) is that it is only when an opportunity has. been given to the persons whose lands are affected by the acquisition to make representations against the scheme and a local enquiry is held in respect of such schemes and thereafter the scheme is submitted to the Government for sanction in accordance with the Rules and it is finally sanctioned, it is only then that a declaration under section 6 can be made. So, whether these declarations published on the 31st May and 21st June 1951 are treated' as declarations under section 6, or combined declarations under section 6 read with section 7, they must be held to be invalid.

4. It was contended by the learned Advocate for the petitioner that the West Bengal Land Development Act is ultra vires in so far as it purported to acquire lands for settlement of immigrants. According to Mr. Ganguly, the settlement of refugees is not a public purpose. He submits that deprivation of the property of a citizen with a view to confer benefit upon the immigrants is not a public purpose. It is a thing done in the interest of an alien to the detriment of the interest of the citizens of the West Bengal State. It is pointed out that the State is already overpopulated. Not only the steps taken by the Government towards rehabilitation of the immigrants are not for the benefits of the inhabitants of the State but on the other hand such attempts tend to make the position of the inhabitants of the State further worse both from the economic point of view as well as from that of convenience. The argument of Mr. Ganguly is no doubt very interesting but it appears to me to be without any substance as it takes a very narrow view of the meaning of public purpose.

It has been pointed out in 'MD. SAFI'S CASE' (55 Cal W N 4G3) as to why the settlement of immigrants should be considered as public purpose. It is not necessary to repeat those reasonings here over again. The Supreme Court has also pointed out in the case of 'PROVINCE OF BOMBAY v. KHUSALDAS S. ADVANE 1950 S C R 621 in the judgment of B. K. Mukherjea J., that housing of refugees is a public purpose. It is not necessary to deal with this point in detail here, and it is sufficient to point out that there is no substance in this ground urged by Mr. Ganguly. He next contended that the Act is ultra vires as the State Legislature has no power to enact any law in respect of aliens. That power is reserved only to the Parliament under entry 17 of List (1) of schedule (7) of the Constitution read with Article 246 thereof. It may be noted however that this West Bengal Act was passed before the commencement of the Constitution. The entry which dealt with the question of aliens and immigration in the Government of India Act, 1935, was also Entry No. 17 in List (1) of the 7th schedule but that entry also relates to the subject or topic of admissions or immigration of foreigners or aliens.

The West Bengal Act however does not purport to legislate with regard to aliens or immigration. It deals with the subject of compulsory acquisition of property which is Item No. 9 in List 2, that is the Provincial List of the Government of India Act, 1935. The Act is in pith and substance a legislation dealing with compulsory acquisition of property. In 'NALINI MOHAN v. DISTRICT MAGISTRATE, MALDA' 55 Cal W N 297 the learned Chief Justice makes the following observations at page 301 of the report:

'Of course it can make provision for the rehabilitation of refugees from foreign countries.'

5. This seems to suggest also that it is quite competent for the State Legislature now under the Constitution to legislate for rehabilitation of refugees from foreign countries and such a legislation cannot be impugned on the ground that it is an extra-territorial legislation. It was next contended by the learned Advocate for the petitioner that the West Bengal Act offends Article 19 of the Constitution as it puts unreasonable restriction on the fundamental right of the petitioner guaranteed under Article 19(1)(f) of the Constitution to acquire, hold and dispose of property but as pointed out by me in 'MD. SAFI'S CASE' (55 Cal W N 463) & as also by the Supreme Court in 'A. K. GOPALAN v. STATE OF MADRAS', : 1950CriLJ1383 and in the case of 'CHARANJIT LAL v. UNION OF INDIA', - : [1950]1SCR869 that if the legislation purports to be a legislation relating . to acquisition of property under Article 31 of the Constitution, then the application of Article 19 is excluded. So, the question of reasonableness of the provisions becomes immaterial. Assuming, however, that it was open to this Court to go into this question, it is clear that the West Bengal Act being an Act passed in furtherance of a public purpose, that is in the interest of the general public, the objection of unreasonableness must fall to the ground. Once it is established that the settlement of immigrants is a public purpose, Article 19(5) must come into play and the restriction must be deemed to have been imposed in the interest of the general public. This disposes of the point made under Article 19 of the Constitution.

6. It was also argued by Mr. Ganguly that the Act offends Article 14 of the Constitution inasmuch as it discriminates between the citizens and non-citizens. It is submitted that the, Act metes out different treatment to citizens and foreigners. It may be that the Act deprives a citizen of his property with a view to provide accommodation for refugee but how that offends Article 14, it is difficult to follow.

The refugees form a class by themselves. They do not stand on the same footing as a citizen. Their status and position are different. They are differently circumstanced. Moreover, the Act does not expressly purport to be dealing with aliens. All immigrants need not necessarily be aliens or foreigners. Besides the West Bengal Act was enacted for various other purposes which are mentioned in Section 2(d) of the Act. As to what is the true implication of Article 14 of the Constitution has been brought out very clearly by B. K Mukherjea J., of the Supreme Court in the case of 'CHARANJIT LAL v. UNION OF INDIA', : [1950]1SCR869 , paragraph 64 of the judgment and some light on the point is also thrown by the judgment of P. B Mukherji J., reported in 'S. B. TRADING CO. LTD. v. SHYAMLAL', : AIR1951Cal539 and onwards. Further merely because the application of a particular Statute may, in some cases, actually result in discrimination, it does not make the whole Act void as offending Article 14 of the Constitution. This contention therefore also appears to be without any substance.

7. It was further contended by Mr. Ganguly that as Section 8, proviso (b) of the Act has been held to be ultra vires by the learned Chief Justice in the case of 'W.B.S.K. CO-OP. SOCIETY v. BELLA' 55 Cal W N 778, there is no provision for payment of reasonable compensation for acquisition under the Act, and so the Act is hit by Article 31(2) of the Constitution. The learned Chief Justice has held that although the proviso is bad, the proviso is severable from the other provisions of the Act and the rest of the Act therefore can stand as a valid piece of legislation. The learned Chief Justice has further held that compensation for acquisition under the Act will be determined or assessed according to the provisions of the Land Acquisition Act. At page 794 the following observation occurs:

'I think there can be no doubt that the impugned provision fixing the maximum price of the land at its market value on December 31, 1946 is severable from the remainder of the proviso and could be eliminated from the Act leaving the Act quite workable. Without this provision, the market value at the date of the notification as ascertained by the provisions of the Land Acquisition Act would apply and therefore the Act would be quite effective.'

8. The expression 'so far as may apply' in Section 8 makes it clear that the provisions as to compensation are applicable to acquisition under the West Bengal Land Development and Planning Act. It is therefore futile to suggest that there is no provision for payment of compensation or provision embodying principles of assessment of compensation. Now that the proviso (b) to section 8 is out of the way, there is no difficulty in getting compensation under the general provisions of the Land Acquisition Act. A minor point was also urged by Mr. Ganguly and this is that section 4 of the Act is invalid because the proviso dealing with payment of damages is an unreasonable provision inasmuch as the damage can be arbitrarily assessed by the Collector or persons mentioned in the proviso and so such a provision is hit by Article 31(2). It may be noted that Article 31(2) speaks of compensation for the acquisition of the property itself but the proviso to section 4 does not relate to payment of compensation in this sense but it deals with question of payment of damages that may be caused during temporary occupation of the lands by reason of acts done as contemplated by the section itself. Therefore this argument of Mr. Ganguly must also fail.

9. In view however of my finding that the notifications published under section 6 read with section 7 of the Act on the 31st May and 21st June, 1951, are invalid, the petitioner is entitled to the reliefs asked for.

10. In the result, this petition must succeed and the Rule is made absolute to the extent that the notifications published under section 6 as also under the combined sections 6 read with 7 are cancelled. The petitioner is entitled to the costs of the present proceeding- the hearing fee is assessed at two gold mohurs.

11. Government will furnish the petitioner with the names of the allottees within a month from the date of the service of this order but if any portion of the lands is still in khas possession of the Government, that will be restored to the petitioner within two months from the date of the service of this order.


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