D. Basu, J.
1. This application under Article 226 of the Constitution is directcd against a notification (Vide Ann. 'S' to the Supplementary Counter-affidavit') under Section 4 of the Land Development and Planning Act, 1948 (hereinafter referred to as the Act of 1948), dated 18-2-1959 and the declaration under Section 6 thereof (No. 7666L. Dev./16-6-62), made in pursuance of the notification, which is annexed to the petition (p. 24), in respect of the Petitioner's lands specified in the declaration.
2. A joint affidavit-in-opposition has been filed on behalf of the State of West Bengal and its officers. No separate counter-affidavit appears to have been submitted by respondent No. 5, the Commissioner of the Refugee Rehabilitation Dept. of the State of West Bengal.
3. Since a number of points have been raised in the Petition, it would be convenient to lake them up serially, 'with reference to the facts relevant to each of them. But some of them, which may be rejected without much reasoning may be disposed of at the outset.
4. The contention of the Petitioner that the impugned proceedings violate his fundamental rights under Article 19(a)(f) or Article 31 is not patently tenable in view of the fact that the West Bengal Laud Development and Planning Act, 1948 was included in the Ninth Schedule of the Constitution by the Constitution (First Amendment) Act, 1951. By reason of Article 31B, therefore, the Act in question or anything done thereunder cannot be challenged on the ground of contravention of the Fundamental Rights included in Part III of the Constitution.
5. Similarly untenable is the argument that 'the settlement of immigrants who have migrated into the State of West Bengal on account or circumstances beyond their control' which is one of the public purposes (Section 2(d) of the Act of 1948), and which is cited as the purpose for the proposed acquisition in the impugned declaration and notification is a matter beyond the competence of the West Bengal Legislature, since it comes under Entry 19 of List I, because' the matter is expressly covered by the Concurrent' power under Entry 27 of List III.
6. Nor can any importance be imputed to the contention that no notice of the notification under Section 4 of the Act of 1948 was personally served upon the Petitioner. The Respondents are right in their plea that the Act does not provide for any personal service and that the objections, if any, to the notification, as referred to in Section 4A, have to be filed by the person interested with reference to the 'public notice' which isrequired to be observed under Section 4(1). Nor can cognisance be taken of the petitioner's allegation that no inquiry has been held nor any report submitted by the Collector under Section 4A because that is disputed in the counter-affidavit of the respondents. Anns. Q and R to the Supplementary Affidavit of respondent No. 1 also show that the acquisition was proposed alter framing a Scheme under the Act of 1948.
7. Stronger points have, however, been urged by Mr. Sinha on behalf of the Petitioner on which he is entitled to succeed.
8. It is urged, firstly, that the impugned proceedings are ultra vires and arbitrary, on the ground of non-compliance with the Proviso to Section 4(2) of the Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 (hereinafter referred to as 'the Act of 1951'), which says;
'(2) The State Government, on the application of the owner of any land or of its own motion, may, if it thinks fit so to do, acquire any land or any pail thereof for a public purpose. Such acquisition shall be made under the provisions of (the West Bengal Land Development and Planning Act, 1948): Provided that no land shall be acquired in pursuance of this section except with the consent of the owner thereof if the owner is entirely dependent for shelter or livelihood on such land.'
9. The argument arises out of the following facts.
The allegation in para I of the Petition, which is not effectively controverted in the counter-affidavit, is that about the year 1947, the petitioner migrated from Bihar to West Bengal, for the purpose of permanently settling in West Bengal, after disposing of all his belongings in Bihar. Similarly imcontradicted is the allegation in para 2 of the petition that the lands sought to be acquired form part of the plots recorded in Khatian Nos. 246-247 in Mouza Kalidaha, in the name of the petitioner as lessee under a registered lease of February, 1947 from the owners, In fact, the Competent Authority under the Act of 1951 (vide p. 16 of the Petition) was satisfied as to the title of the petitioner to these lands and the respondents do not question that in this proceeding.
10. In paras 3-5 of the petition it is alleged that subsequent to the lease referred to, the petitioner invested a sum as big as 8 lacs or over in purchasing machinery and building up a factory for a laundry business under the name and style of 'India Steam Laundry and started operation of that laundry, but that all the machineries could not be installed immediately owing to difficulties of construction according to the scheme prepared by the petitioner. There is no contradiction of these allegations in the counter-affidavit save that the Steam Laundry stands on that portion of the petitioner's lands which have not been acquired by the impugned declaration and that only the vacant lands of the petitioner have been acquired. We shall come to this later on.
11. The petitioner further alleges that before the petitioner could utilise his entire lands recorded in Khatians 246 and 247 measuringsome 15 bighas by setting up his machineries etc. in 1950, a band of refugees forcibly squatted on a portion of those lands, appertaining to the factory and measuring about 6 bighas, and comprising plots 171 to 181 out of the plots recorded in khatians 246-47. The petitioner thereupon applied for eviction of the squatters to the Competent Authority under the Act and the said Authority passed his order at p. 16 of the petition dated 15-6-54 in favour of the petitioner, holding that the persons in question were unlawful occupants, and directed their eviction upon the State Government's providing alternative accommodation for them, as required by Section 4(1)(a) of the Act. But, instead of providing alternative accommodation to the refugees under Sub-section (1) of the Act, Government took resort to Sub-section (2) of that section and proceeded to acquire the lauds occupied by the squatters, under the provisions of the Act of 1948.
12. The petitioner's case is that he came to know of the acquisition proceedings only after the publication of the declaration under Section 6 and that thereupon he filed objections before the higher authorities against the proposed acquisition but that no heed was paid to any of them.
13. He now contends that in view of the Proviso to Sub-section (2) of Section 4 of the Act of 1951, the disputed lauds could not be acquired without his consent inasmuch as he 'is entirely dependent for shelter or livelihood on such land'. This plea of the petitioner is characterised by the respondents in para 11 of the counter-affidavit as 'an after-thought' as this ground was never taken before by the petitioner in his petition dated 19-9-62 praying for exclusion of his plots from acquisition. Subject to this contention, to be taken up later, we shall proceed on the assumption that the petitioner's allegation that he is entirely dependent for his livelihood and shelter on the acquired lands is true.
14. Though the language of the proviso, reproduced earlier, is iutriguiugly vague, we must interpret it to the best of our ability, in consonance with the intention of the Legislature which is evident from the various provisions of this Act of 1951.
15. Owing to the influx of numerous displaced persons from East Bengal as a result of the accursed Partition of Bengal and the communal disturbances prior thereto, their settlement in West Bengal became a serious problem. The refugees sought to solve the problem by helping themselves as much as possible, by squatting on vacant lands, whether belonging to the Government or private individuals. The problem assumed such a form that the Government considered the general law of eviction inadequate for removing the squatters and were obliged to obtain a special enactment from the Legislature for this purpose. This is the Act of 1951 and its object is clear enough from its Preamble and the provisions of Section 2. By Section 3, the Act set up a special Tribunal and a summary procedure according to which an order for eviction could be made against the unlawful occupants and executed. Had the Act stopped here, it would have been a measure completely in favour of the unlawfully dispossessed owners. Section 4,however, engrafted certain provisions in order to protect the refugees from East Bengal, so that they might not be rendered homeless as a result of execution of the order of the Competent Authority under Section 3. These provisions, in short, armed the State Government with some sort of a veto against execution of the order of the Competent Authority.
16. The veto under Sub-section (1) of Section 4 was only suspensive in so far as it merely prevented the execution of the order by the dispossessed owner until the State Government was able to provide for the squatters a suitable land and a home. The peculiarity of this sub-section is that it set no time limit to the endeavour of the State Government to provide alternative accommodation against the squatters against whom an order of eviction had been passed by a competent Tribunal. It was palpably a vagueness operating to the detriment of a private owner of property who had indisputably been dispossessed by trespassers. Be that as it may, the conspicuous fact in the case before us is that the State Government had failed to provide any alternative accommodation to the squatters in a period of five years since the date of the order of the Competent Authority and that in 1959, the Government thought of resorting to its alternative veto under Sub-section (2).
17. The veto under Sub-section (2) is an absolute veto, because it enables the Government to override the order of the Competent Authority by compulsorily acquiring the lands in question for the settlement of the displaced persons who had unlawfully occupied the lands of the owner. This provision was obviously engrafted in view of the Obligation and policy of the Government of India to rehabilitate those persons who had been displaced owing to the setting up of the two Dominions of India and Pakistan and the Partition of the Province of Bengal as between the two Dominions.
18. The absolute veto under Sub-section (2) was, however, subjected to the condition imposed by the Proviso, and it requires no authority to assert that if the power to acquire is used in violation of this condition, the exercise of the power to acquire would be invalid.
19. It is not contended in the counter-affidavit of the respondents that the petitioner's consent was taken but in paras 11 and 14-15 thereof it is contended that the petitioner's consent was not necessary because his case of being dependent on the acquired lands is an after-thought as he did not take this plea in his petition of 19-9-62, and cannot be accepted without due proof thereof; that since the petitioner did not attend the local inquiry held by the Land Acquisition Officer under Section 4A(2) of the Act of 1948, he submitted his report in the absence of the petitioner, stating that 'there was no land in the colony belonging to any individual who by dint of the proposed acquisition was likely to be deprived of his only source of livelihood.'
20. (a) As regards the contention that the petitioner should not be allowed to raise this plea as he did not raise it in his petition of 19-9-62 before the authorities, the contents of that petition are not before me, not having beenproduced by the respondents. This much is clear, however, from the petitioner's application dated 12-10-63 (p. 30 of the petition) to the Special Land Acquisition Officer that he was then seeking time on the ground that the area and other details of the land proposed to be acquired were not known to him. If this be true, his position could not have been better on 19-9-62. Now, that this is true is evident from the impugned declaration itself (p. 21 of the petition) which mentions 9.4379 acre as the area of the lands sought to be acquired. In para. 5 of the counter-affidavit it is stated that this is the total area (approximately) of the lands included in the petitioner's lease and that the area covered by the acquisition is only 1.2390, which area, however was not given in the impugned declaration itself. Further, even though the declaration mentioned that only a part of one of the petitioner's plot, viz., 175 was sought to be acquired, the particulars or area of that portion were not specified in the declaration,--in contravention of the requirements of Sub-section (2) of Section 6 of the Act of 1948. It is curious that the text of the declaration simply copied the text of the notification under Section 4 (vide Ann. S to the Supplementary Counter-affidavit) even though it is contended that a lesser area was sought to be acquired by the impugned declaration. It is clear, therefore, that it was not possible for the petitioner to make out his case fully as soon as ho was apprised of the declaration under Section 6. In his subsequent petition to the Additional Collector (p. 25 of the petition), he clearly mentioned that all the vacant laud outside the site of the factory already built had been occupied by the refugees and had been sought to be act (Hired and that this vacant portion was necessary for the purposes of the factory itself, and its ancillary requirements. In this petition it was also requested that it should be treated as an objection to the notification tinder Section 4, since he had come to know of the acquisition proceedings only from the Gazette notification of the declaration, which fact is not controverted before me, by urging that the petitioner had knowledge at any earlier point of time. No inquiry or order appears to have been made on this application to the Additional Collector. The reply that was sent to the petitioner (p. 29 of the petition) on 22-1-63 conveyed the rejection of the petitioner's representation of an earlier date, to the Chief Minister, on the simple ground that it was not possible to secure alternative accommodation for the refugees. No action was taken on the petitioner's letter demanding justice, dated the 18-11-1963 where he urged that he was entirely dependent not only for his livelihood but also for his shelter on the lands proposed to be acquired.
21. It cannot, therefore, be held that the case of dependence of the petitioner for livelihood, at least, was an after-thought in any way. We have, therefore, to see whether the respondents had any obligation under the law to allow the petitioner any opportunity to prove his definite case as made out in the application addressed to the Additional Collector (p. 25 of the petition). It is true that the inquiry under Section 4-A of the Act of 1948 was then over andthat that inquiry was not tainted by any illegality by reason of me omission to serve any notice upon the petitioner personally. If the petitioner did not submit his objection within the time specified in Section 4-A from the date of issue of the public notice under Section 4, he cannot insist upon that inquiry being held again because he came to know of the proceeding later,
22. But the question before us is different, namely, whether the proviso to Section 4 (2) of the Act of 1951 would require any opportunity being given to the petitioner of being heard in the circumstances of the instant case,--apart from the requirements of the Act of 1948. My answer is in the affirmative, for the following reasons. The very engraftment of the proviso to Section 4 (2) of the Act of 1951 makes it clear that the legislature sought to impose some condition in addition to the public notice and inquiry under Section 4-A, as provided in the Act of 1948 already. For, even after the words 'Land Acquisition Act, 1894' were substituted by an amendment of 1955, by the words 'West Bengal Land Development and Planning Act, 1948,' thereby inserting the entire procedural provisions of the Act of 1948 into the proceedings for acquisition under Section 4(2), the proviso was not omitted. This shows that besides the procedural requirements of the Act of 1948, there would be a substantive limitation upon the power to acquire conferred by Section 4(2) of the Act of 1951. This limitation was that where the owner of the land was entirely dependent on the land to be acquired, there could be no acquisition except where he consented. Though the word 'consent' is vague enough, it would, for all intents and purposes, mean that unless the owner agreed to part with his land by private treaty or agreement, i.e., on receipt or some consideration in addition to the statutory compensation offered by the Act of 1948, the land could not be acquired, in a case coming under the proviso. If he refused to part with the land in any case, there could not be any acquisition of such land under Section 4(2). The reason behind this limitation was that in such a case:
(a) it had already been proved in a proceeding before a competent tribunal that the ownerof the land had been dispossessed by trespassers; '
(b) the decree of that tribunal was sought to be superseded by the acquisition to be made by the State Government;
(c) the owner who was going to be displaced in order to accommodate the refugees was himself badly in need of the land to be acquired.
23. The Legislature sought to effect a balance between these competing considerations by engrafting the Proviso, for, the protection of an owner from a trespasser was as much a concern of the State as the rehabilitation of the displaced persons from Pakistan. As regards the procedure to be followed in obtaining the Petitioner's consent, though the Proviso is silent, the very word 'consent' implies that the consent could not be obtained or the wishes of the owner could not be ascertained unless he was contacted. Hence, even though it may bet contended that the Legislature has not expressly provided that the Government should, suo motu, serve a notice upon the owner personally to appear and have his say in every case where Section 4(2) is sought to be applied, that is to say, where an award of the Competent Authority in favour of the owner is outstanding and Government is resorting to acquisition only because of its inability to have that award executed against the unlawful occupants,--it can be said with confidence that in every case where the owner comes before the Government with a definite case that he seeks the protection of the Proviso because he is dependent on the land to be acquired, it would be the duty of the Government to afford such person an opportunity to establish his case of dependence, so that Government might obtain his consent if his case was established. The substantive obligation of having the petitioner's consent as laid down in the Proviso would be nugatory if the position was otherwise. It is no answer to the obligation raised by the Proviso that the Act of 1948 does not require a personal service. Nor is it an answer that the Section 4A stage under the Act of 1948 was already over. From the counter-affidavit, it appears that delivery of possession had not been completed even before the petitioner came to Court. It was, therefore, possible for the respondents to call upon the petitioner to establish his case for invoking the Proviso, on receipt of the application to the Additional Collector, but that was not done. It can never be forgotten that the petitioner has an executable award in his favour and that it was the Government which was seeking to silence it by applying Section 4(2) of the Act of 1953.
24. In the absence of a non-compliance with the Proviso, therefore, the impugned declaration and all proceedings subsequent thereto have become ultra vires and must be quashed. The State Government shall, however, be competent to proceed afresh from that stage after giving an opportunity to the petitioner to establish his case of dependence on the lands in question and after considering the applicability of the Proviso. There is no need to disturb the earlier notification under Section 4 of the Act of 1948.
25. The second point urged by Mr. Sinha is that the impugned declaration under Section 6 is, on its face, ultra vires Sub-section (1) of Section 6 of the Act of 1948, inasmuch as while the statute requires that a declaration can be made only after the State Government is 'satisfied that any land in the notified area........ is needed for the purpose of executing such scheme,' the impugned declaration uses the words 'whereas it appears'. The difference may prima facie appear to be one of terminology but really it is not so. In a previous judgment of mine State of West Bengal v. Collector of 24 Paraganas, (1965) 69 Cal WN 1067, I dealt with this question and gave my reasons elaborately why a declaration using the words 'it appears' was not in compliance with the statutory requirement under Section 6 of the Act of 1948 of being 'satisfied'. In that case, however, it had not been brought to my notice that the same conclusion had been reached by an earlier Division Bench in the case of CalcuttaPinjrapole Society v. State of West Bengal. S. A. No. 1021 of 1957 (Cal).
26. So far as this Court is concerned, the question has thus been concluded by the decision of the Division Bench, just cited. Nevertheless, I would, in brief, give my reasons in support of the conclusion.
(a) The legislative history of an enactment being one of the guides for interpretation, we cannot overlook the fact that in the Land Acquisition Act of 1894, the expression 'it appears' was originally used in both Section 4(1) and Section 6(1), but that by the Amendment Act 38 of 1923, that expression, in Section 6(1) was substituted by the words is satisfied'. That this change in the phraseology was deliberate and intended to lay down that-
'The difference between Sections 4 and 6 (as amended) is that whereas the former section refers to land in a particular locality the latter contemplates a particular land and again under Section 4 it must only appear to the Government that the land is needed or is likely to be needed for a public purpose; under Section 6 it must be finally satisfied that it is so needed. It is only when the second stage is reached that the Government is to make a nerlaration as provided in the section,' was pointed by the Madias High Court in Secy, of State v. Gopala, AIR 1930 Mad 798.
Similar view has been expressed by the Supreme Court in Smt. Soraawanti v. State of Punjab, : 2SCR774 , where the notification under Section 4 has been described as a 'preliminary notification', to be followed by the declaration under Section 6 if after hearing the objections, if any, raised under Section 5A, the Government 'is satisfied that a particular land is need ed. ...... ' The collusiveness provided for inSub-section (8) of Section 6 arises only if the conditions laid down in Sub-section (1) are complied with:
'The Government has to be satisfied about both the elements contained in the expression needed for a public purpose. Where it is so satisfied, it is entitled to make a declaration.' The change in phraseology in Section 6(1), by the introduction of the expression 'is satisfied', therefore, is that the satisfaction referred to is a condition precedent for making a declaration under Section 6(1) and where this condition precedent is absent, the declaration must be held to be ultra vires. If this be the position under the Land Acquisition Act, it cannot be different under the West Bengal Act of 1948, where the words 'is satisfied' have been used not only in Section 6(1) but even in Section 4(1), to indicate that the Government must apply its mind to the need for acquisition closely, at both the stages, because the incidents under the Act of 1948 are more stringent for the owner than under the Land Acquisition Act.
(b) Where a statute requires such satisfaction, the fact of such satisfaction must ordinarily be recited in the order issued under the statutory provision in order to make it valid. This was held under a similar provision of the Preventive Detention Act, in the case of Naresh v. State of W. B., : 1959CriLJ1501 :
'Section 3 of the Act requires the authority making an order of detention to state the fact of its satisfaction that it is necessary to make the order of detention.' Though the requirement to make such recital was not expressly laid down in Section 3, such requirement appears to have been implied.
(c) The contention of the respondents that the words 'it appears' means the same thing as 'is satisfied' is founded on some observations in the decision of this Court in Gouripada v. S. Banerjee, : AIR1953Cal704 ; but as pointed out by me in my earlier decision and also by the Division Bench in the Calcutta Pinjrapole Society Case, S. A. No. 1021 of 1957 (Cal.) in Gouripada's case, : AIR1953Cal704 (ibid), their Lordships did not specifically apply themselves to the question of identity of implication of the two expressions and the observation in question was made only incidentally. In any case, that observation no longer slands good in view of the observations of the Supreme Court in Somawanti's case, : 2SCR774 bringing out the difference resulting from the use of the different expressions in Section 4(1) and Section 6(1).
(d) It has been contended that whatever be the statutory language, since Section 14 of the Act of 1948 empowers the State Government to make rules and the relevant rule so framed prescribes the form in which the declaration under Section 6 should be made, there would be no question of ultra vires if the impugned declaration has been issued in conformity with the Form so prescribed. The relevant Form (Form 3), of course, uses the words 'it appears' even though the statute itself uses the words 'is satisfied'. It is argued on behalf of the respondents that even though the Form is patently inconsistent with the statutory provision, it would cure the invalidity of the impugned declaration. This very argument was however made before the Division Bench but was rejected by the Bench in the Calcutta Pinjrapole 'Society case. S. A. No. 1021 of 1957 (Cat) (ibid.), in these words: 'The Forms prescribed by the Rules cannot supersede the statutory provisions of Section 6'.
The reason is fundamental, namely, that even where the statute itself says that the Rules made under it shall have the force 'as if enacted in this Act', the Rules cannot have any validity where they are ultra vires the plain provisions of the Statute. The 'as if enacted clause' goes no further than saving the intra vires rules. This has been settled in England since the House of Lords decision in R. v. Wicks, (1946) 2 All ER 529 (531) and in India since Chief Inspector of Mines v. Kararnchand Thapar, : (1961)IILLJ146SC . If that be so, the Forms prescribed by the Rules cannot have a greater force than the Rules themselves. Respondents must thank themselves if they have, in drafting the Rules and the Forms, overlooked the plain language of the Act of 1948 and have simply copied the old Form which existed under the Land Acquisition Act of 1894, though the language of Section 6(1) of that Act too had been altered as far back as 1923.
27. It is no less striking that even though as early as the 4th of March, 1960 this very discrepancy and laches on the part of the Rule-making Department was commented upon by the Division Bench in the Pinjrapole Societycase, |. A. No. 1021 of 1957 (Gal) (ibid.), in me following unmistakable terms, the Department in question has not taken it into its head the need for amending the form as suggested by a Division Bench of the highest tribunal of the State:
'Now, if the Rules and the Forms prescribed thereunder have not been amended in accordance with the amendment of Section 6 in 1923, we do not think that the Government can take advantage of its own laches.'
28. The Rule-making Department, thus, has not only departed from the mandate of the Legislature, without any reason, but has also taken no cognisance of a judicial pronouncement of the highest authority so far as this State is concerned, even though they did not consider it necessary to appeal against that decision to a higher tribunal. I can't imagine what questions of policy were involved in the matter or making a snort verbal change in the Form, as indicated by a superior Court.
29. In this state of affairs, it is not possible to accede to the contention on behalf of the respondents that the expression 'it appears is identical with the statutory expression is satisfied'. The impugned notification must, accordingly, be held to be ultra vires on this ground, is conformity with the decision of the Division Bench.
30. Respondents, however, seek to prove the fact of satisfaction apart from the recital. Mr. Sinha submits that assuming that a defect in the impugned declaration can be cured,--even where the recital is patently inconsistent with the statute, as distinguished from a case of omission to recite the statutory condition (as in Swadeshi Cotton Mills Co Ltd. v. S. I. Tribunal, U. P., : (1961)IILLJ419SC , by evidence aliunde that the State Government was actually satisfied that the land in question was needed for the purpose of executing the scheme for rehabilitating the refugees as alleged, no suchproof is forthcoming in the instant case because sanction of the Minister-in-charge was not obtained before issuing the impugned declaration.
31. The point arises in the following way: The 'satisfaction' required by Section 6(1) is that of the 'State Government'. It has, however, been laid down by the Supreme Court that even in cases where functions have been vested in the 'State Government' by some statute, such functions may be comprehended within the scope of the expression 'business of the Government of the State' under Article 166(3) of the Constitution, so that Rules of Business may be made by the Governor for allocating such functions to be discharged by Ministers. Now Rule 19 of the Rules of Business made by the Governor of West Bengal, allocates all business, subject to specified exceptions, to be disposed of by the Minister-in-charge. The relevant provision is as follows:
'Except as otherwise provided by any other rule, cases shall ordinarily be disposed or by or under the authority of the Minister-in-charge who may, by means of standing orders, give such directions as he thinks fit for the disposal of in the department......'
It is common case that the business before me was thus allocated to the Minister-in-charge of the Land and Land Revenue Department so that unless he was satisfied as to the need for the particular land before issuing the declaration under Section 6(1), the declaration can prima facie, have no validity.
32. To this the respondents have a twofold reply.
(i) firstly, it has been said in para. 17 of the original counter-affidavit that the approval of the Minister-in-charge had bee 11 obtained 'before publication of the Notification under Section 4 of the Act.'
This, however, will not suiffice, lor, as held by two Division Benches of this Court, Shambhu Nath Ghosh v. Bejoy Lakshmi Cotton Mills, Ltd.., : AIR1959Cal552 ; Atma Ram v. State of West Bengal, (1963) S. A. 422 of 1958 (Cal) (unreported) the satisfaction of the Minister must take place not only at the Section 4 stage but also before issuing the declaration under Section 6. The reason is patent, namely, that the requirement before issuing the notification under Section 4(1) relates to the notified area, generally, but the requirement before issuing the declaration under Section 6(1) is that the Minister must apply his mind directly to the question whether a particular land is needed for the purpose.
(ii) The satisfaction of the Minister at the Section 4 stage cannot, therefore dispense with the satisfaction required before issuing the declaration tinder Section 6. In their Supplementary Affidavit, therefore, the Respondents have endeavoured to show that the Minister-in-charge was indeed satisfied, as required by the statute, also prior to the impugned declaration. A narration as to what happened after the Section 4 notification is to be found in para. 5 of the Supplementary Affidavit. It is stated that the report of the Collector under Section 4-A (1) of the Act was notified to all members of the Land Planning Committee, of which the Minister-in-charge was a Member, and that that Committee, at its meeting held on 1-6-62, accepted the Collector's Report and directed that the declaration under Section 6 be issued, as a result of which the impugned declaration was thereafter issued by the Deputy Secretary of the Land Revenue Department as 'by order of the Governor.
33. The minutes of that meeting of the Planning Committee in question are at Ann. T to the Supplementary Counter-affidavit. It does not show that the Minister was present at that meeting where the resolution to move the Government to issue the declaration under Section 6 was passed, but it is contended that the agenda and other papers of that meeting had been circulated to the Minister along with the other members of the Committee and that this complied with the requirement of Section 6(1). This contention, in my opinion, deserves rejection outright. The reason is that Section 4A(2) of the Act plainly requires that the Collector's report must be 'submitted to' the State Government, so that even though it may be considered by the Planning Committee set up by Rule 3 framed under Section 3 of the Act, that Committee can, at best, serve as a steering body to discharge the functions specified in Rule 5, and cannot take the place of 'the State Government before whom the Report is required by Section 4A(2) of the statute to be put up, and whose satisfaction is required by Section 6 of the Act. In fact, the-resolution of the Committee at Ann. T itself says that their recommendation had to be placed before the State Government, for issuing the declaration under Section 6. A resolution by the Committee, therefore, cannot take the place of the 'satisfaction' of the Minister-in-charge.
34. The next question is whether the notice of the meeting of the Planning Committee can be said to have complied with the requirement of 'satisfaction' of the Minister as required by Section 6, read with Section 4A(2). Here, again, the Respondents are confronted with the decisions of two Division Benches of this Court : AIR1959Cal552 and (1963) S. A. No. 422 of 1958 (Cal) unreported. ibid. In both these cases, it has been made clear that whether or not the matter is placed before the Planning Committee or any other body, the case must be placed before the Minister-in-charge and he must apply his mind and be satisfied as to the need for the particular land, before issuing the declaration under Section 6. Assuming that the Minister got notice of the meeting, there is nothing to show that he had applied his mind and accorded his approval to the issue of the impugned declaration. That he did not apply his mind is patent from the impugned declaration which, as pointed out by me earlier, merely copied out the text of the earlier notification under Section 4 even though the case of the respondents is that only a portion of the notified area was sought to be declared for acquisition. The need for the Minister's applying his mind positively is also accentuated in the instant case by the fact that the declaration was going to be made over four years after the matter had been placed before the Minister for the purposes of the notification under Section 4, and also that there was an award of the Competent Authority in favour of the petitioner for evicting the refugees for whose settlement the acquisition was proposed to be made
35. I have no hesitation in holding that the notice of the meeting of the Planning Committee to the Minister-in-charge cannot be held to have complied with the requirement of satisfaction of the Minister under the statute, before issuing the impugned declaration under Section 6(1).
36. (iii) As a last resort, it has been contended by Mr. Dutt on behalf of the respondents that the fact that the impugned declaration was issued by the Deputy Secretary of the Department, an officer duly authorised under Article 166(2) of the Constitution (vide Ann. U to the Supplementary Counter-affidavit), shows that that officer had been satisfied and that his satisfaction was sufficient compliance with the requirement of the statute inasmuch as the Rules of Business and the Standing Orders made thereunder have delegated the Minister's function to such officer.
37. Rule 20 of the Rules of Business provides that-
'Each Minister shall by means of standing orders arrange with the Secretary of the department what matters or classes or matters are to be brought to his personal notice......'
38. Standing Orders have been framed by the Minister-in-charge of the Land Revenue Department. It is argued on behalf of the respondents that under para 2(18) of these Standing Orders, read with para 5 thereof, it was competent for the Deputy Secretary who signed the impugned declaration, to exercise the function of satisfaction as required by Section 6 of the Act himself, instead of referring it to the Minister for obtaining the latter's satisfaction.
39. It appears that the text of the Standing Orders has undergone important changes. The original text was placed before the two Division Benches referred to by me earlier. I shall, therefore, refer to the original and amended texts separately;
I. Para. 2 of the Standing Orders enumerates cases which 'shall be brought to my notice'. Clause (18) of this paragraph, as it originally stood, stated-
'All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act.' From this it was held by the Division Bench in S. N. Ghosh's case, : AIR1959Cal552 , that from the moment of a proposal before the Land Planning Committee (which commenced from after the notification under Section 4) up to the satisfaction for issuing a declaration under Section 6, i.e., up to the stage of completion of the proposal, the case must be put up before the Minister; otherwise the sanction under Section 5(2) or the declaration under Section 6 would be invalid (pp. 556 (558)).
It is striking that though the next Division Bench Case (1963) Section A, No. 422 of 1958 (Cal) ibid, was decided on 21-3-1963 the amendments of the Standing Orders, made on 9-7-1962, were not placed before the Court and the decision of the earlier Division Bench was accordingly, followed.
II. It must also go to the credit of the Department concerned that though the changes introduced in 1962 in the Standing Orders were momentous changes made in order to override the judgment in S. N. Ghosh's Case : AIR1959Cal552 (ibid.), the amended Standing Orders were not placed before me during the earlier days of the hearing but were produced only after I gave the respondents an opportunity to file Supplementary Affidavit.
40. The first change effected in 1962 was to insert the word 'important' before the word 'cases' in para 2(18), so that the Department would no longer be under the obligation to put any such cases other than those which were considered by itself to be 'important'. The power to decide the importance of a case was specifically conferred upon the Secretary and 'any of the Deputy Secretaries of the Department', by para 4, newly introduced.
Then comes para. 5-
'Subject to the foregoing provisions, the Secretary shall dispose of all matters of the Department. The Secretary of the Department may by general or special order make arrangement for the disposal of cases by Deputy Secretaries and Assistant Secretaries.'
The result of the foregoing provisions is that if the Secretary or a Deputy Secretary did not consider a case otherwise coming under para, 2(18)to be 'important', it must be disposed of by the Secretary, unless, by a general or special order, the Secretary deemed it fit to dilute the delegation of the statutory function even another degree further, by empowering a Deputy Secretary or Assistant Secretary to dispose of that case.
An order made in exercise of such delegation will be valid only if it is made in term? of the delegation permitted by the Rules of Business or the Standing Orders made thereunder, vide Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, : AIR1959SC308 ; Godavari v. State of Maharashtra, (1965) SCD 477 (486, 488): (1964) Cri Appeals Nos. : 1964CriLJ222 .
41. In the case before me, the impugned declaration has been made by the Deputy Secretary, without placing the matter before the Minister, under para 2(18) of the Standing Order, which means that he did not consider this case to be an 'important' one. If so, the case should have been disposed of by the Secretary of the Department, after having formed his satisfaction required by Section 6(1). A Deputy Secretary would have been competent to exercise the aforesaid function only if there was a general or special order of the Secretary as required by Para 5 of the Standing Order.
42. A Special order would mean a direction by the Secretary that a particular case, e.g., the instant one, would be disposed of by the Deputy Secretary. There is no such order of the Secretary before me. A general order, on the other hand, would be an order of the Secretary directing that all cases under para 2(18) other than those placed before the Minister would be disposed of by the Deputy Secretary. But any such general order, too, has not been produced before me. What has been produced as Ann. U to the Supplementary Affidavit is the Notification No. 261A.R. of 5-1-1959, which describes itself as a 'Rule under Clause (2) of Article 166 of the Constitution' and says-
'Orders and instruments made and executed in the name of the Governor shall be authenticated by the signature of a Secretary, a Joint Secretary, a Deputy Secretary. . .....'
43. It is clear that the foregoing notification has no connection with the terms of para 5 of the Standing Order. It merely says that an order made and executed in the name of the Governor, as required by Clause (1) of Article 166, shall be authenticated by the Deputy Secretary, or any of the other specified officers. The net result of such authentication is stated in the concluding part of Clause (2) of Article 166, namely, that when an order has been authenticated by any officer duly authorised in this behalf by a rule made by the Governor (as has been done by No. 261A.R. of 1959), the validity of such order
'shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.'
44. Such authentication only saves the Government from proving the signature of the Governor on an oraer or instrument by producing the original. Proof of the authentication by a duly authorised officer would serve that purpose. But, as has been explained in cases like Emperor v. Sibnath Banerji ,such authentication would not preclude the Court from examining the validity of the order on any other ground, namely, that a condition precedent for the making of the order had not been fulfilled, so that the order, however duly authenticated, lacks the requirements of a statute and thus becomes ultra vires. The satisfaction of the State Government under Section 6(1) of the Act of 1948 is the relevant statutory requirement In the case before me. The notification No. 261 A.R. of 1959 does not, therefore, preclude this Court from enquiring whether that statutory condition had been fulfilled before making the impugned declaration. To prove that satisfaction, the respondents rely on the Rules of Business and the tanding Orders. Now, under Rule 19 of these Rules, the satisfaction should have been that of the Minister-in-charge which is absent in the instant case. Any other person's satisfaction would meet the requirements of the statute if it is in accordance with the Standing Order made by the Minister under Rule 20 of the Rules of Business.
45. Now, the Standing Order says that the satisfaction must be that of the Minister himself, in important cases coming under para 2(18), or that of the Secretary in those cases which are not placed before the Minister as 'unimportant'. A Deputy Secretary would be competent to pass on his satisfaction as that of the 'State Government' only if the Secretary had further delegated his power under para 5 and empowered the Deputy Secretary by an order in this behalf, as required by para 5 of the Standing Order. Notification No. 261 A.R. does not purport to be an order under para 5 of the Standing Order; it deals with authentication under Clause (2) of Article 166 and has nothing to do with the 'transaction of the business of the State Government', which is dealt with by Clause (3) of Article 166. There being no order as required by para. 5 of the Standing Order, therefore, the impugned declaration made by the Deputy Secretary, must, accordingly, be held to be invalid. On behalf of the respondents, it was argued that the impugned declaration must be held to be valid in view of the recent decision of the Division Bench in (1965) 69 Cal WN 747, Harsookdas Balkisendas v. First Land Acquisition Collector. But a reference to the contents of this decision would show that the impugned order under Section 49(2) of the Land Acquisition Act wtis made by a joint Secretary (p. 754, ibid.) and that this was in accordance with the Standing Order inasmuch as clause 3 of the Standing Order, as was produced before that Bench stated-
'All other cases.... ... shall........ bedisposed of by the Joint Secretary ........'
46. The case before mo does not fall under the aforesaid provision which, loo, has been omitted from the 1962 Standing Order which has been produced before me. One is constrained to say that notwithstanding the amendment of the Standing Order made in 1962, in order to override the decision of the Division Bench in the earliest case referred to, the Department concerned has failed to sustain the impugned declaration before me, owing to its failure to realise the implications of Clauses 2 and 3 of Article 166 of the Constitution and the terms of Clause 5 of the amended Standing Order, drafted by itself.
47. Before parting with this case, I would also indicate my apprehension as to the validity Clause 4 of the amended Standing Order which empowers the Secretary or any of the Deputy Secretaries to conclusively determine a case as 'unimportant' so as to withdraw it from the Minister, though Rule 19 of the Rules of Business requires the Minister to dispose of all cases, excepting those coming uuder Rule 20. This latter rule, however, authorises him to make Standing Orders to arrange 'what matters or classes of matters are to be brought to his personal notice.' Can he, within the terms of Rule 20 make a Standing Order laying down that no matter or case need be placed before him at all or no matter need be placed before him if the Secretary or Deputy Secretary so chose? Supposing the latter brands each case as unimportant, would the resulting order be still valid and if not, could the blanket delegation under Clause 4 of the Standing Order be upheld as valid? These questions, however, need not be dealt with by me in the instant case, us these have not been specifically raised on behalf of the Petitioner. I have, nevertheless, raised these questions for the consideration of the Respondents further, inasmuch as I have, in view of the fact that the connected questions have been brought before this Court on very many occasions, dealt with the various aspects of the matter rather at length, since, in my opinion, the role of the Judiciary,--which is also a limb of the democratic Government set up by the Constitution,--is not merely that of a critic but also that of a guide in so far as the legal questions agitated before it are concerned.
48. As matters stand, the Rule must be made absolute with costs, hearing fee being assessed at five gold mohurs. The notification under Section 4 need not be cancelled. Let an appropriate order be issued directing the Respondents from forbearing to enforce the impugned declaration under Section 6(1) of the Act of 1948 or any proceedings resulting therefrom. The Respondents shall, however, be at liberty to proceed afresh in accordance with the law and in the light of the observations made herein.
49. The operation of this order will remain stayed for a period of four weeks from this date.