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Golam Bari Molla Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. (Mandamus) Nos. 157 and 201 to 204 of 1952
Judge
Reported inAIR1954Cal248
ActsConstitution of India - Articles 19, 19(1), 31 and 31(2); ;West Bengal Land Development and Planning Act, 1948 - Sections 6 and 7; ;Constitutional Law; ;Code of Civil Procedure (CPC) , 1908
AppellantGolam Bari Molla
RespondentState of West Bengal
Appellant AdvocateAnil Kumar Sinha and ;Somendra C. Bose, Advs. for Appellant in Appeal No. 157, ;Sitaram Banerjee, ;Satya Santi Mukherji and ;Nirmal Ch. Chakravarty, Advs. for Appellants in Appeals Nos. 201 to 204
Respondent AdvocateJajneswar Majumdar and ;Mihir Kr. Sarkar, Advs. for Respondents in Appeal No. 157, ;Hemendra K. Das, ;J. Majumdar, ;Smriti K. Roy Choudhury and ;Mihir K. Sarkar, Advs. in Respondents in Appeals Nos. 2
Cases ReferredBhagat Sing v. Emperor
Excerpt:
- .....present appeal may be stated as follows: on 6-1-1950, a notification under section 4, west bengal land development and planning act (act 21 of 1948) was published stating that a certain plot of land described in schedule 2 to the petition under article 226 of the constitution, was needed or likely to be needed for settlement of immigrants and for better living conditions in village paikpara. on 27-4-1950, a notification under section 6 read with. section 7, west bengal land development and planning act was published. after a declaration in terms of rule 8 framed under section 14 of the said act, possession was taken of the said area with the exception of three plots being cadastral survey plots nos. 259, 571 and 2490, on 16-12-1950.3. the petitioner's allegation is that he had no notice.....
Judgment:

G.N. Das, J.

1. Appeal No. 157: This is an appeal from the judgment of Bose J., dated 28-3-1952.

2. The facts which have given rise to the present appeal may be stated as follows: On 6-1-1950, a notification under Section 4, West Bengal Land Development and Planning Act (Act 21 of 1948) was published stating that a certain plot of land described in Schedule 2 to the petition under Article 226 of the Constitution, was needed or likely to be needed for settlement of immigrants and for better living conditions in village Paikpara. On 27-4-1950, a notification under Section 6 read with. Section 7, West Bengal Land Development and Planning Act was published. After a declaration in terms of Rule 8 framed under Section 14 of the said Act, possession was taken of the said area with the exception of three plots being Cadastral Survey plots Nos. 259, 571 and 2490, on 16-12-1950.

3. The petitioner's allegation is that he had no notice of the notification aforesaid or of the declaration under Rule 8 and that he first came to know on enquiry about these facts when he found that building materials were being stacked on the disputed property. The application under Article 226 of the Constitution was filed in this Court on 11-6-1951. This application was finally dismissed by Bose, J. on 28-3-1952. Against this judgment of Bose J. the applicant under Article 226 of the Constitution has preferred this appeal.

4. Mr. Sinha, learned Advocate who has appeared in support of the appeal, has raised four contentions. In the first place, he has contended that Section 7 of the said Act is void of the Constitution. In the second place, he has contended that the question of urgency referred to in Section 7 is justiciable. In the third place, he has contended that the publication of the declaration under Rule 8 of the rules framed under the said Act is compulsory and in the absence of such publication, the delivery of possession must be regarded as ineffective. In the fourth place, he has contended that the withdrawal of the proceedings in regard to the three plots, already referred to, vitiated the entire proceedings. I shall deal with these contentions in the above order.

5. The first question is whether Section 7, West Bengal Land Development and Planning Act is void of the Constitution. The West Bengal Land Development and Planning Act (Act 21 of 1948) came into force on 7-10-1948, on the expiry of the Ordinance which preceded the Act. It was thus an existing law as defined in Article 13(3)(b) of the Constitution.

6. Its constitutional validity must therefore be judged in terms of Article 13 of the Constitution. That Article provides that such laws in so far as they are inconsistent with the provisions of part Ill (fundamental rights) shall, to the extent of such inconsistency, be void.

7. Part III of the Constitution deals with fundamental rights. It has been classified under different heads. Articles 12 and 13 are headed as general. Articles 14 to 18 deal with right to equality. Articles 19 to 22 deal with right to freedom. Articles 23 and 24 deal with right of exploitation. Articles 25 to 28 deal with right to freedom of religion. Articles 29 and 30 deal with cultural and educational rights. Article 31 deals with rights to property. Articles 32 to 35 deal with the right to constitutional remedies.

8. In this appeal we are concerned with Arts. 19 and 31, referred to above. The contention is that the West Bengal Land Development and Planning Act in so far as it expropriates a citizen is void of the Constitution because its constitutional validity must be tested not merely in terms of Article 31 but also in terms of Article 19(1)(f) which confers on every citizen a fundamental right to acquire, hold and dispose of his property.

9. In order to decide this contention, it is necessary to look into the different clauses of Article 19 and its relation to Article 31. Article 19(1)(a) deals with freedom of speech and expression. Article 19(1)(b) deals with the right to assemble peacefully. Article 19(1)(c) deals with the right to form associations or unions. Article 19(1)(d) deals with the right to move freely throughout the territory of India. Article 19(1)(e) deals with the right to reside and stay in any part of India. Article 19(1)(f) deals with the right to acquire, hold and dispose of property. Article 19(1)(g) deals with the right to pursue any profession or to carry on any occupation, trade or business. It is apparent that all the rights which are thus detained in Article 19(1) deal with personal rights as distinguished from proprietary rights. The latter rights are dealt with specifically in Article 31. Article 31(1) lays down that no person shall be deprived of his property save by authority of law. Article 31(2) deals with cases of acquisition for public purposes.

10. As a matter of construction, Article 31 which deals specifically with proprietary rights must govern legislation directly concerning the right to property. Article 19(1) similarly relates to legislation directly concerning personal rights as set forth in the different clauses of Article 19(1). This view was taken by Kania C.J. and Das J. in the case of -- 'A. K. Gopalan v. State of Madras', : 1950CriLJ1383 (A). It was there observed that if the impugned legislation is not directly in respect of any of the subjects in the several clauses of Article 19, the clauses have no application although the effect of the legislation may abridge the rights referred to in Article 19.

11. It may be noted that -- 'Gopalan's case (A)' dealt with a case of preventive detention and the observations, referred to above, were made by the learned Judges in dealing with the general scheme of part III of the Constitution.

12. The principle enunciated in -- 'Gopalan's case (A)1 was reaffirmed by the Supreme Court in the case of -- 'Ram Singh v. The State of Delhi', : [1951]2SCR451 (B). In a later case, -- 'Charanjit Lal v. Union of India', : [1950]1SCR869 (C), Das J. reiterated the views expressed by him in -- 'Gopalan's case (A)' and observed that if a share-holder is deprived of property by authority of law, then Article 19(1)(f)' has no application, the question being whether the legislation was a valid one under Article 31 of the Constitution. The view which has been taken in the cases cited above, proceeds on the view that if a piece of legislation directly deals with a proprietary right, that legislation would be valid if it conforms to Article 31. Its constitutional validity need not be further tested by a reference to Article 19(1) of the Constitution.

13. The same view was taken by a Bench of this Court in the case of -- 'Sudhindra Nath v. Sailendra Nath', AIR 1952 Cal 65 (D). In a later Bench decision of this Court in the case of' --'West Bengal Settlement Kanungol Co-operative Society v. Mrs. Bella Banerjee', : AIR1951Cal111 (E), Harries, C. J. delivering the opinion of the Bench, expressly stated at p. 789 that the question whether the present legislation, which was then in question was valid or not in terms of Article 19(1)(f) of the Constitution should be left open. Later on, in the course of the judgment at p. 790 the learned Chief Justice expressed an opinion in favour of the view that the legislation then in question must conform both to Article 31 and to Article 19(1)(f) of the Constitution.

14. The matter was considered at some length by Bose J. in the case of -- 'Tulshidas Jewraj v. State of West Bengal', : AIR1952Cal912 (F). Bose J. was inclined to the view that the present legislation did not suffer from any constitutional defect.

15. The view taken by Das J. in -- 'Chiranjit Lal's case (C)' has been applied by the Allahabad High Court in the case of -- 'Surya Pal Singh v. IT. P. Government', : AIR1951All674 (G), by the Bombay High Court in the cases of -- 'Dwarkadas Srinivas v. Sholapur Spinning and Weaving Co. Ltd.', : AIR1951Bom86 (H) and -- 'Abdul Majid v. P. R. Nayak', : AIR1951Bom440 (1) and by the Madras High Court in the case of -- 'Thambiran Pudy-achi v. State of Madras', : AIR1952Mad756 (J).

In the present case, it is not necessary to express an opinion on the question whether Article 31 is controlled by Article 19(1)(f). It is sufficient to say that the present case is one which comes directly under Article 31(2), namely, a case of acquisition for public purposes. In such a case, on well-settled principles of construction Article 31(2) being a provision directly dealing with legislation regarding acquisition of property for public purposes, that Article must govern the constitutionality of the impugned legislation which is a piece of legislation which compulsorily acquires private properties for public purposes. The only conditions required in such a case are set forth in Article 31(2). The legislation in question need not in such a case conform also to the provisions of Article 19(1)(f). In this view, it is not necessary to express any opinion whether the impugned legislation must be tested in the light of Article 19(1)(f) and whether Article 19(1)(f) would justify its validity.

16. Assuming, however, that the impugned legislation must also conform to the provisions of Article 19(1)(f), we have to consider whether the legislation is saved by the saving clause contained in Article 19(5); in other words, whether the legislation imposes reasonable restrictions on the' rights of the exercise of the right to hold property in the interest of the general people. The test of reasonableness within the meaning of Article 19(5) was discussed in the case of -- 'State of Madras v. V. G. Row', AIR 1952 SC 195 (K). I may refer to certain passage from the judgment of Sastri C. J. It was observed that in defining the scope of the judicial review under Clause 5 of Article 19 the Court should consider not only factors such as the duration and the extent of the restriction but also the circumstances under which and the manner in which the imposition has been authorised. It is important in this context DO bear in mind that the test of reasonableness, whenever prescribed, should be applied to each individual Statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied therein, the disproportion of the imposition, the prescribed conditions at the time, should all enter into the judicial verdict (at pp. 199-200). Let us test the present legislation in the light of the observations made by Sastri C. J.

17. In order to pronounce upon this question, we have to consider the general scheme of the Land Development and Planning Act. The preamble of the Act speaks of acquisition and development of land. Section 2 (b) defines the development scheme as a scheme framed for public purposes. Section 2 (d) defines a public purpose to include (1) settlement of immigrants who have migrated to the State of West Bengal on account of circumstances beyond their control, (ii) the establishment of towns, model villages and agricultural colonies, (iii) the creation of better living conditions in urban and rural areas, and (iv) the improvement and development of agriculture, forestry and fishery. The present acquisition, as I have already stated, was made for the settlement of immigrants and for better living conditions in a village both of which come directly within the definition of Section 2 (d).

The proceedings under the Act start with a notification under Section 4. Section 4 empowers the State Government to publish a notification that a certain area, called herein notified area, is needed or likely to be needed for a public purpose. Section 4 (2) provides for prospecting the notified area. Section 5 which follows provides for the framing of a development scheme. The actual details of the procedure are set forth in Rule 5 of the rules framed under Section 14 of the Act. The combined effect of Section 5 read with Rule 5 of the rules framed under Section 14 of the Act may be stated as follows: The local Government may empower the prescribed authority as defined in the Act or a Company or a local authority to frame a development scheme. If the scheme is framed by a Company or local authority, the scheme has to be submitted to the prescribed authority.

In any case, the scheme, after it is drawn up, has to be submitted to the Government for sanction but before it is so submitted Section 5 read with Rule 5 (2) provides that an enquiry has to be made by a Collector or some officer deputed by the Collector after hearing any objections which may be made by persons whose lands are sought to be acquired under the Act. After objections are thus enquired into by the officer concerned, the objections and the report, if any, which may be made by the officer concerned, will be submitted along with the draft scheme to the State Government. The State Government will then consider the scheme and is empowered to accept it as a whole or to modify it.

Thereafter under Section 6 of the Act the State Government is required to publish a declaration in the Gazette declaring that a specified area is needed for a public purpose; in other words, the declaration under Section 6 follows a development scheme as envisaged in the Act itself. To this an exception is made in Section 7 which provides for cases of urgency. In such a case, the State Government, although no development scheme has been prepared, may issue a declaration under Section 6 that a certain plot of land is required for a public purpose. After a declaration under Section 6 is published the State Government may proceed to take possession under Rule 8 of the rules framed under Section 14 of the Act. Rule 8 provides that the Collector may cause a public notice to be given at a convenient place that possession would be taken at any time beyond three days of the publication of the notice. The provisions contained in Section 7 deal with only emergent cases. In other cases, the normal procedure is provided for in Section 5 read with Rule 5 (2) as already stated. This is followed by a declaration under Section 6. Section 6 then provides that the Government 'may acquire the land and thereafter the provisions of the Land Acquisition Act shall apply as far as practicable.' I am omitting for the present the provisions relating to payment of compensation which are to be found in the proviso (b) to Section 8 of the Act.

18. The question which has engaged our attention in this case is whether in a case of emergency it is incumbent on the State Government to frame a development scheme after possession is taken. One of the objects of the Act, inter alia, is to settle immigrants. In case of a heavy influx of immigrants a case of emergency may arise. In such a contingency the Government has to take immediate possession of the land. In such cases the legislature has armed the Government with powers under Section 7 to dispense with the framing of a development scheme before possession is taken under Rule. 8. It was contended by the learned Senior Government Pleader on behalf of the State that after possession has been taken under Rule 8, the property vests in the State and therefore it is not incumbent on the State Government to proceed to frame a scheme thereafter. This position has been disputed on behalf of the appellant. Section 7 does not in terms dispense with the framing of a development scheme. Section 7 merely says that even though no development scheme has been framed, the State Government may issue a declaration under Section 6 and thereafter Rule 8 comes into operation and entitles the Government, after necessary declaration to take possession after three days. Once that object is achieved, there is no reason why the normal process envisaged in the Act should not be gone into.

The Act itself contemplates land planning and development and necessarily contemplates the framing of a development scheme. In normal, cases it is undisputed that the preparation of a development scheme precedes a declaration under Section 6. The only variation which the legislature intended to make in case of urgency is to entitle the State Government to take possession although no development scheme has been prepared. The legislature never intended that the State Government need not go through the process of framing a development scheme, be it for the settlement of immigrants or for other purposes mentioned in Section 2 (d).

19. There is no decision on this point so far as this Court is concerned. A similar question arose under Section 17, Land Acquisition Act which corresponds to Section 7 of the present Act. In the case of -- 'Mantharavadi Venkayya v. Secy, of State for India', 27 Mad 535 (1) the Government took possession under Section 17, Land Acquisition Act. The Collector under the impression that the land really belonged to the Government refused to proceed to make an award. Thereafter the dispossessed proprietor started a suit for declaration of title to the land and for incidental reliefs. The Courts below found that the land really belonged to the plaintiff, the dispossessed proprietor. The question then arose as to whether the plaintiff was entitled to have a declaration of title to the land. This contention was negatived on the ground that Section 17, Land Acquisition Act vested the property in the Crown, but the Court was of opinion that the plaintiff was entitled to get compensation on the ground that he had been dispossessed of his property by a failure on the part of the Collector to perform his statutory duty, namely, to make an award in terms of the Land Acquisition Act.

20. If we apply the same principles to the facts of the present case, it follows that although the Government may have taken possession under Rule 8 and the property may have vested in the State, the law does not preclude the Collector from proceeding to make an award. In fact, the statutory duty, as provided for in Section 8 of the Land Planning and Development Act, is to proceed with the acquisition and make an award as provided for in the Land Acquisition Act. In my opinion, therefore, the mete fact that the Government has taken possession in case of an emergency does not mean that the Collector need not frame a development scheme. Such a view is also in accordance with the reason behind the legislation the legislation gives only one opportunity to a proprietor to prefer objections to the acquisition and to the framing of a scheme. That opportunity is provided for in Rule 5 (2) of the rules framed under the Act. That opportunity would be denied to a dispossessed proprietor, if the contention put forward on behalf of the State is accepted. A reasonable construction should be placed. The above decision in my opinion leads to the conclusion that even though possession might have been taken by the Collector under Rule 8 of the rules framed under the Act and the property might have vested in the Government, the Government must proceed with the framing of a scheme and follow the procedure provided for in Rule 5.

It was argued that the Land Acquisition Act provides for withdrawal from acquisition at any time before possession is taken (vide Section 48) and that once possession is taken there is no provision in the Act to withdraw from the acquisition. That may be so, but this is not an, insuperable difficulty. The Collector, in such cases, may have to reconvey the property to the dispossessed proprietor. If the appellant's submission is correct, the Collector will be required to prepare a scheme and an opportunity will then be afforded to the dispossessed proprietor to raise objections when the development scheme is in course of preparation.

It has been held in -- ' : AIR1951Cal111 (E), that the existence of a public purpose is justiciable and that in spite of proviso (b) to Section 8 fair compensation should be awarded to the dispossessed proprietor. If the appellant's submission is accepted, the impugned Act cannot be said to impose unreasonable restrictions on the right of a citizen to acquire, hold and dispose of his property and the legislation, even if Article 19(1)(f) was applicable, would be saved under Article 19(5) of the Constitution. A construction which renders the impugned Act intra vires should be accepted.

21. The result therefore is that the Act does not suffer from any constitutional invalidity. The first contention raised on behalf of the appellant cannot therefore be accepted.

22. It was next contended that the question of the existence of emergency or otherwise within 6. 7 of the Act is justiciable. In my opinion, this contention is not correct. If the contention was valid, the result would be that in emergent' cases the proceedings under the Act would be held up pending an enquiry into the existence or otherwise of the state of emergency. In the case of -- 'Bhagat Sing v. Emperor', AIB 1931 P. C. 111 (M), where the question was whether the opinion of the Governor-General as to the existence of a state of emergency justifying the passing of an Ordinance was justiciable or not, the Judicial Committee negatived a contention like the present and characterised the contention as 'completely without foundation on the face of it.' The second contention raised on behalf of the appellant must therefore be overruled.

23. The third contention raised is that in the absence of publication of a declaration under Rule 8 of the rules framed under the Act, the proceedings for delivery of possession must be regarded as invalid. It is not necessary in this case to decide-this question. Bose. J. seemed to be of the opinion that the non-publication of a declaration under Rule 8 of the rules framed under the Act was not imperative and that the provision was merely directory. In the facts of this case, however, the petition under Article 226 of the Constitution did not --state that no such declaration was made. There is only a general allegation that notices were not served. In the absence of a specific denial on the part of the petitioner that such a declaration in terms of Rule 8 was not in fact, published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground. The third contention must therefore be negatived.

24. The fourth contention on behalf of the appellant related to the withdrawal of certain plots from acquisition. In this case the withdrawal was made before possession had been taken under Rule 8 of the rules framed under the Act. Section 48 of the Land Acquisition Act which is attracted by reason of Section 8 of the Land Development and Planning Act provides for withdrawal of acquisition of land before possession is taken. There is therefore no substance in this contention. In fact, the withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and I see no reason why the appellant should be allowed to complain of such a withdrawal. The fourth contention must therefore be negatived.

25. A similar view was taken by Bose J. in -- ' : AIR1952Cal912 (F)'.

26. The result of the findings arrived at by me is that the judgment of Bose J, is varied to the extent that writ of Mandamus do issue on the respondents requiring them to proceed to frame a development scheme in terms of the West Bengal Land Development and Planning Act (Act 21 of 1948), which as we have already said, is imperative under the Statute. The appeal having succeeded in part, the appellant will have his costs of this appeal, hearing fee being assessed at three gold mohurs. As the point on which the appeal has succeeded was not raised before Bose, J., there will be no order for costs of the hearing before Bose, J.

27. Appeals Nos. 201 to 204: For the reasons given above there will be a similar direction in all these appeals. If in fact no development scheme has been prepared in these cases, the respondents are directed to proceed to frame such a scheme in terms of the Act. If however a scheme has been framed in terms of the Act, no further direction should issue. There will be no order as to costs in these appeals Nos. 202 to 204 of 1952.

28. There is a special point in Appeal No. 201 wherein Golam Bari Molla is the appellant. In this case, on 7-2-1951, a notification under Section 4 and a declaration under Section 6, West Bengal Land Development and Planning Act were simultaneously issued. Thereafter in view of certain decisions of this Court it was found that such a simultaneous declaration was invalid. The State Government therefore proceeded to cancel the declaration under Section 6, West Bengal Land Development and Planning Act and a notification was published to that effect on 26-7-1951. On the same date a further notification under Section 6, West Bengal Land Development and Planning Act was published regularising the proceedings. No complaint can therefore be validly made as regards the validity of the proceedings on this ground.

A further question which has been raised by Mr. Banerji on behalf of the appellant viz. that with regard to two of the plots, namely, plots Nos. 415 and 416, the notification and the declaration proceed on the footing that these two plots were waste and 'doba'. In point of fact, these plots form part of the 'khirki' tank and the 'bastu' (dwelling house) of the appellant. Some support for this assertion is to be found in an order dated 25-11-1952, in L. D. Case No. 172/1950-51 wherein it was specifically held that C. S. plot No. 415 is 'khirki' tank and plot No. 416 is 'bastu' land. The learned Senior Government Pleader has accepted the position that this was due to a mistake. The position therefore is that the notification in regard to these two plots Nos. 415 and 416 must be taken to be inoperative. If the State Government has taken possession of these two plots or of parts thereof, they must restore possession thereof to the appellant.

29. In this case, however, it appears from the affidavit filed on behalf of the appellant that none of the objections raised in this Court was taken in the Court below. There will therefore be no order for costs in this appeal. The order for costs made by Bose J. will stand.

Debabrata Hookerjee, J.

30. I agree.


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