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Md. Taha and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 182 of 1963
Judge
Reported inAIR1966Cal359,69CWN801
ActsConstitution of India - Article 254(2); ;West Bengal Land Development and Planning Act, 1948; ;Land Acquisition Act, 1894; ;West Bengal Land Development and Planning (Amendment) Act, 1955
AppellantMd. Taha and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateArun Kumar Dutta and ;Nand Lal Pal, Advs.
Respondent AdvocateBankim Chandra Dutt and ;Pradyot Kumar Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredMilk Societies Union Ltd. v. State of West Bengal
Excerpt:
- .....kumar dutta, learned advocate for the appellants, contended that section 2(d) of the west bengal land development and planning act, 1948, (hereinafter referred to as the act) defined public purpose, and such definition included among other things, settlement of immigrants who have migrated into the state of west bengal on account of circumstances beyond their control. it was argued that as the land in question was required for settlement of immigrants, it should have been acquired under the west bengal land development and planning act, 1948, which, according to mr. dutta, was exhaustive in its scope, for the settlement of immigrants. that being the object of the acquisition, namely, settlement of immigrants, the acquisition should not have been made under the land acquisition act,.....
Judgment:

B.C. Mitra, J.

1. This appeal is directed against the judgment and order of Banerjee, J., dated February, 19, 1963, discharging a rule obtained by the appellants under Article 226 of the Constitution. The fads relating to the matter are set out below.

2. A Notification was issued under Section 4 of the Land Acquisition Act, 1894, for acquisition of certain plots of land for settlement of immigrants who had migrated into the State of West Bengal. The land in question is in the district of Hooghly, the total area being 245.61 acres. The appellants being aggrieved by the Notification, applied under Article 226 of the Constitution for a writ of mandamus commanding the respondents to cancel, rescind or withdraw the Notification or in the alternative a writ of certiorari for quashing the said Notification. On this application a rule was issued and this appeal is directed against the order discharging this rule.

3. Mr. Arun Kumar Dutta, learned advocate for the appellants, contended that Section 2(d) of the West Bengal Land Development and Planning Act, 1948, (hereinafter referred to as the Act) defined public purpose, and such definition included among other things, settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control. It was argued that as the land in question was required for settlement of immigrants, it should have been acquired under the West Bengal Land Development and Planning Act, 1948, which, according to Mr. Dutta, was exhaustive in its scope, for the settlement of immigrants. That being the object of the acquisition, namely, settlement of immigrants, the acquisition should not have been made under the Land Acquisition Act, 1894. He referred to the definition of 'public purpose' in Section 2(f) of the Land Acquisition Act and contended that public purpose as defined therein was insufficient or inadequate to cover or include acquisition of land for settlement of immigrants. On the other hand, public purpose as defined in Section 2(d)(i) of the West Bengal Land Development and Planning Act. 1948, specifically dealt with the question of settlement of immigrants. It was argued that the object of the acquisition being what it was, as set out in the Notification, it was not open to the respondents, to use the phrase employed by Mr. Dutta, 'to switch over from the said Act to the Central Act for the purpose of securing land for settlement of immigrants'. The said Act, Mr. Dutta contended, was more comprehensive than the Central Act and therefore the Notification under the Land Acquisition Act was an error apparent on the face of the records as the West Bengal Land Development and Planning Act, 1948 was a complete Code for the purpose of acquiring land for settlement of immigrants.

4. It was next contended by Mr. Dutta that the Land Acquisition Act was repugnant or inconsistent with the provisions of the said Act (The West Bengal Land Development and Planning Act) under Article 254(2) of the Constitution and to the extent of such repugnancy or inconsistency the State Act must prevail over the Central Act and therefore the Notification under the Central Act was bad and could not be given effect to. This argument is based on Item 42 of List III of the 7th Schedule to the Constitution, which deals with acquisition and requisition of property. Both the Acts dealt with the same subject and it was argued that inasmuch as the said Act was amended and the amendment was reserved for the consideration of the President and received his assent, as required by Article 254(2) of the Constitution, the State Act must prevail over the Central Act and that being so, the proceedings under the Land Acquisition Act, 1894, must be struck down and the Notification issued for the acquisition of the land should be declared to be void.

5. This argument on behalf of the appellants is not well founded. Both the Acts are pre-Constitution Acts. The State Act was amended by the West Bengal Land Development and Planning (Amendment) Act, 1955, but the only amendment made to Section 2 of the Act was that the following Clause was inserted therein, namely: 'but does not include a purpose of the Union'. It was this amendment which was reserved for the consideration of the President and received his assent and not the entire Act which, as I have stated earlier, is a pre-Constitution Act. For that reason, there is no force in the contention that the entire Act including all the provisions in Section 2 should be regarded as an Act which was reserved for the President's consideration and which received his assent and having received the assent the Act in its entirety, or at any rate Section 2 of the Act should prevail over the Central Act within the State.

6. In support of his contention, Mr. A.K. Dutta relied upon a decision of the Supreme Court in Zaverbhai v. State of Bombay : [1955]1SCR799 . But this decision in my view does not support the proposition of Mr. Dutta as it was held:

'But the principle on which the rule of implied repeal rests, namely, that if the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State Law.'

In the instant case now before us, it cannot be said that the two Acts cannot stand together and indeed on a scrutiny of the provisions of the two Acts, there can be no doubt that they may very well be treated to be complementary to each other. Besides, in Zaverbhai s case : [1955]1SCR799 , the later legislation was by Parliament and it is the Parliamentary Act which was upheld and it was held that the State law could prevail against the Parliamentary Act.

7. The next case relied upon by Mr. A.K. Dutta was another decision of the Supreme Court in Tika Ramji v. State of Utter Pradesh : [1956]1SCR393 . In that case the question raised was whether the Uttar Pradesh Sugar Cane (Regulation of Supply and Purchase) Act, 1953, was ultra vires the powersof the State Legislature and whether the Act was repugnant to the Industries (Development and Regulation) Act, 1951, and the Essential Commodities Act, 1955. Dealing with the question of repugnancy, it was held that the question of repugnancy becomes material when the law made by Parliament and the law by the State Legislature occupy the same field and if the two laws deal with separate and distinct matters though of a cognate or allied character, the question of repugnancy did not arise. The Supreme Court approved of a decision of this Court in G. P. Stewart v. B. K. Roy Chowdhury : AIR1939Cal628 , in which it was held that one test of repugnancy was whether there was a direct conflict between the two laws which were said to be repugnant to each other. The Supreme Court also approved and accepted the observations of the Federal Court in Shyamakantlal v. Rambhajan Singh in which it was held that there ought to be a presumption in favour of the validity of a law and every effect should be made to reconcile them and construe both so as to avoid their being repugnant to each other and care should be taken to see whether the two do not really operate in different fields without encroachment and that the repugnancy must exist in fact and not depend merely on a possibility. After dealing with the various decisions mentioned above, the Supreme Court held that there was no inconsistency in the actual terms of the Central and the State Acts. It was held further that the question that arose for consideration was whether Parliament and the State Legislature sought to exercise their power over the same subject matter or whether the laws enacted by Parliament were intended to be a complete and exhaustive Code or in other words whether Parliament expressly or impliedly evinced an intention to cover the whole field. In my view the observations of the Supreme Court and the decisions which were approved by it are against the contentions raised by Mr. A.K. Dutta. In the first place, the Central Act, namely, the Land Acquisition Act was dealing with the question of acquisition of land only. But the State Act was dealing with the question of land development and planning. Therefore the grounds of operation of the two Acts are far from identical. The State Act was intended for acquiring land for the purpose of development and disposal of the same. The Central Act is not concerned with any such object. A reference to the preamble to the two Acts makes the position clear. The preamble to the State Act states: 'whereas it is expedient to provide for the acquisition and development of land for public purpose', the preamble to the Central Act states: 'whereas it is expedient to amend the law for acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition.' The Central Act is in no way concerned either with development of land of with disposal of the same after such development.

8. Secondly, the question in the light of the observation made by the Supreme Court, is if there is a conflict between the Central Actand the State Act can it be said that the two Acts cannot stand together or that they cannot be reconciled? In order to be repugnant, the provisions in the one Act must be repugnant to the provisions of the other and the repugnancy must be to such an extent as to make it impossible for the two Acts to stand together. In my opinion, this test of conflict is not at all satisfied in the said two Acts. The fields of operation of the two Acts are different. Acquisition of land by the State Act is only incidental to the other object of the Act, namely, development and disposal of the laud.

9. Mr. A.K. Dutta sought to support his contention regarding repugnancy on the ground that Section 9 of the West Bengal Land Development and Planning Act, 1948, provides that where the State Government decides to lease or sell land acquired under the Act, the person from whom the land was acquired be offered a prior right to take on lease or to purchase the land. But there is no such provision in the Land Acquisition Act and therefore the absence of such a provision in the latter Act should be treated as satisfying the test of repugnancy. There is hardly any force in this contention. The basic principle of repugnancy is that there must be a conflict between the two Acts and it cannot be said that such a conflict arises by reason of the absence of a provision in the Central Act similar to that in the State Act, On the other hand, it is clear that the State Act is making a provision regarding disposal of land, a question on which the Central Act is silent. I cannot therefore accept Mr. A.K. Dutta's contention that there is any repugnancy by reason of the power taken by the State Government to deal with the land under Section 9 of the West Bengal Land Development and Planning Act, 1948.

10. Mr. A.K. Dutta next referred to a decision of the Judicial Committee in Thomas O'Sullivan v. Noarlunga Meat Ltd., 1957 AC 1. This was an appeal from the High Court of Australia and the question was one of jurisdiction of Federal and State laws governing the same matter. Dealing with the question ot inconsistency the Judicial Committee held that it depended on the intention of the paramount legislature to express by its enactments completely, exhaustively or exclusively what should be the law governing the matter to which its attention was directed and when a Federal law disclosed such an intention, it was inconsistent with it for the law of a State to govern the same matter. Applying this test, can it be said that the Central Act, namely, the Land Acquisition Act discloses an intention to deal completely, exhaustively or exclusively with the matter, of acquiring land for settlement of immigrants who have migrated into the State of West Bengal? Indeed the Central Act has made no provision with regard to the matter of settlement of immigrants. I do not think that this decision in any way supports the contention of Mr. A FC. Dutta.

11. Mr. A.K. Dutta next referred to another decision of the Supreme Court in Deepchand v. State of U. P. : AIR1959SC648 . In that case the validity of the U. P. Transport Services (Development) Act of 1955 was challenged asvoid on the ground of repugnancy with the MotorVehicles (Amendment) Act of 1956. The Supreme Court held following the principle laid down in its earlier decision in : [1955]1SCR799 (supra):

'The principle embodied in Section 197(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centra and by the province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.'

The Supreme Court further held that repugnancy between the two statutes is to be ascertained on the following principles:

(1) whether there is direct conflict between the two provisions;

(2) whether Parliament intended to lay down an exhaustive Code in respect of the subject matter replacing the Act of the State Legislature; and

(3) whether the law made by Parliament and law made by the State Legislature occupy the same field.'

Applying these tests prescribed by the Supreme Court, if will be seen that none of them is satisfied in the case of the Central Act, namely, the Land Acquisition Act.

12. The next case relied upon by Mr. A.K. Dutta is another decision of the Supreme Court in R. M. D. C. (Mysore) Private Ltd. v. State of Mysore : [1962]3SCR230 . In that case the validity of certain amendments to the Mysore Lotteries and Prize Competition Control and Tax Act, 1951, were challenged on the ground of repugnancy having regard to the provisions of a Central Act, namely, the Prize Competitions Act, 1955. The Mysore Legislature had previously passed a resolution adopting the Central Act and it was contended that by reason of this adoption of the Central Act, the Mysore Legislature was no longer competent to pass any law with regard to the prize competitions because the whole matter including the power of taxation was surrendered in favour of Parliament. The other ground urged was that the Mysore Act as amended was repugnant to the Central Act, and was to the extent of such repugnancy, void under Article 254(1) of the Constitution. Dealing with the question of repugnancy between the Central Act and the Mysore Act with regard to licensing and the contention that the provisions relating to licensing under the State Act became void under Article 254(1) of the Constitution, it was held that at the time when the Mysore Act was passed, it was within the competence of the State Legislature and the effect of the amendment of the Mysore Act was that certain words were deemed to have been omitted as from April 1, 1956, but the rest of Section 8 of the State Act was not repugnant to any of the provisions of the Central Act. It was further held that only that portion of the State Act which dealt with the question of licensing having become repugnant to the Central Act, became void, but not the whole of the Act. But the portion of the State Act which dealt with taxation could not be held to be void because as a result of the amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted from April 1, 1956, the day when the Central Act came into force. This decision does not help Mr. A.K. Dutta because it was found that there was a conflict between certain provisions of the amendment to the State Act and the Central Act. But even then it was held that conflicting provisions having been deleted there was no repugnancy. In the instant case now before us, there appears to be no conflict at all between the Central and the State Act and for that reason the doctrine of repugnancy has no application.

13. Mr. A.K. Dutta next referred to another decision of the Supreme Court in Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531. In this case it was urged that by reason of the enactment of Sections 129A and 129B of the Bombay Prohibition Act, 1949, Section 510 of the Criminal Procedure Code stood repealed in its application for offences under Section 66(1) of the Bombay Prohibition Act and in support of this contention reliance was placed on Article 254(2) of the Constitution. It was held that legislative power regarding Criminal Procedure and Evidence fell within List III of the 7th Schedule to the Constitution and both the Central and the State Legislatures had concurrent authority in respect of these matters. The Criminal Procedure Code was a law in force before the Constitution came into force and by virtue of the Article 254(2), legislation by the State Legislature in any matter enumerated in List III repugnant to an earlier Central Act, if it had been reserved for the consideration of the President and received his assent, must prevail in the State. The Bombay Act having been so reserved and having received the President's assent Section 129A and Section 129B of the Bombay Prohibition Act, 1949, will prevail in the State of Bombay to the extent of inconsistency with the Criminal Procedure Code. It was found that certain provisions of Section 129B of the State Act were inconsistent with Section 510 of the Code of Criminal Procedure and it was thereupon held that to the extent of the inconsistency and to that extent only Section 129B of the State Act superseded Section 510 of the Code of Criminal Procedure. This decision again does not help Mr. A.K. Dutta because Sections 129A and 129B were incorporated in the Bombay Prohibition Act by the amending Act 12 of 1959 and this Act No. 12 of 1959 was reserved for consideration of the President and duly received his assent. It was for this reason that under Article 254(2) of the Constitution the amending provisions were held to prevail against the Central Act, but in the instant case as I have noticed earlier, the amendment to the West Bengal Land Development and Planning Act, 1948, which was reserved for the President's consideration and thereafter received his assent related only to the provision, namely, 'but does not include a purpose of the Union.' It is therefore this particular amendment which can be held to prevail against the Central Act and not any other part of Section 2 of the said Act.

14. Mr. A.K. Dutta next relied upon a decision of this Court in Sk. Jamaluddin v. State of West Bengal, (1961) 65 Cal WN 357, in which an order of acquisition made under thesaid Act, namely, the West Bengal Land Development and Planning Act, 1948, was challengedon the ground that the Act did not provide for acquisition for a company. The acquisition proceedings under the said Act were quashed on the ground that the Act did not provide for acquiring land for a company. This decision has no application to the facts of the appeal now before us.

15. Mr. B. C. Dutt, learned advocate for the respondents, contended that Article 254(2) of the Constitution was of no assistance to the appellants in this case, because the only amendment to Section 2 of the Act which was reserved for the President's consideration and which received his assent, was as mentioned above, namely, 'but does not include a purpose of the Union.' He argued that there was no substance in the contention of the learned advocate for the appellants that Section 2 and all the Sub-sections thereunder must prevail against the Central Act, because Section 2 is a part of a pre-Constitution Act which was not reserved for the President's consideration and assent. This contention of Mr. B. C. Dutt is well founded. Article 254(2) could have been invoked if the Act as a whole or particular Sections of the Act which arc in any way inconsistent with the Central Act were introduced or amended after the Constitution came into force and were reserved for the consideration of the President and received his assent. Mr. B. C. Dutt also relied upon the decision of the Supreme Court in : [1956]1SCR393 (supra) and submitted that the said Act did not in any way impinge upon the Laud Acquisition Act and there was 'no trenching upon the field of one legislature by the other'. In my opinion, this contention of Mr. B. C. Dutt is also well founded. So long as there is no conflict between the two Acts and the Central Parliament has not evinced an intention to legislate on a subject exhaustively, the question of repugnancy between the provisions of two existing statutes does not arise. As was pointed out by the Supreme Court iu the above case, in order to give rise to a question of repugnancy there must be overlapping by the provisions of oue Act over the provisions of the other and it was held that the Centre being silent with regard to some of the provisions which have been enacted by the State and the State being silent with regard to some provisions which have been enacted by the Centre, there could be no repugnancy.' That is precisely the case with regard to the two statutes with which we arc concerned in this appeal. The State Act has made provisions with regard to matters on which the Central Act is completely silent and that being so, the two Acts can be easily reconciled and can be treated as complementary to each other.

16. Mr. B. C. Dutt also relied upon the decision of the Supreme Court in AIR 1963 SC 1531 (supra) and contended that that decision was an authority for the proposition that unless particular amendments of the State Act were reserved for the consideration of the President and received his assent, such amendments could not prevail against the existing Central Act, I have already discussed this decision earlier inthis judgment and it is not necessary for me to refer to it again.

17. Mr. B. C. Dutt next referred to another decision of this Court in Co-operative Milk Societies Union Ltd. v. State of West Bengal : (1958)IILLJ61Cal , for the proposition that where possible a construction which harmonised two statutes within the respective legislative competence of the State Legislature and the Central Legislature should be preferred to the construction which created a conflict or repugnancy.

18. In my opinion, the provisions in the West Bengal Land Development and Planning Act, 1948, are in no way inconsistent with or repugnant to the Land Acquisition Act, 1894. The field of operation of the State Act though having certain common features, namely, provisions relating to acquisition of land, is considerably different from the field of operation of the Land Acquisition Act. There is no conflict between the provisions of the two statutes. On the other hand, the provisions of the State Act arc complementary to the provisions of the Central Act. The purposes for which the Notification for acquisition of the land was issued are in no way repugnant to or in conflict with the purpose of acquisition of land under the Land Acquisition Act. That being so, Mr. A.K. Dutta's contention that the Notification issued under the Land Acquisition Act, 1894, is bad, is rejected.

19. For the reasons mentioned above, this appeal fails and is dismissed. Each party to hear its own costs.

20. The operation of this under will remainin abevance for six weeks from date, as prayedfor.

Bose, C.J.

21. I agree.


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