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Naba Kumar Seal Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1409 of 1951
Judge
Reported inAIR1952Cal870
ActsWest Bengal Land Development and Planning Act, 1948 - Sections 1, 4, 6, 7, 8 and 48; ; Land Acquisition Act, 1894 - Section 48; ; Constitution of India - Articles 19, 19(5), 31 and 31(2);; West Bengal Land Development and Planning Rules, 1948 - Rule 8
AppellantNaba Kumar Seal
RespondentState of West Bengal and ors.
Appellant AdvocateAnil Kumar Sinha and ; Somendra Chandra Bose, Advs.
Respondent AdvocateJagneswar Majumdar and ; Mihir Kumar Sarkar, Advs.
Cases ReferredMd. Safi v. State of West Bengal
Excerpt:
- .....lands. in the early part of june 1951, the petitioner filed an application before the special land acquisition officer at alipore in which request was made to the land acquisition officer to forbear from giving effect to the notifications or taking any steps pursuant thereto but no attention was paid to such request. on 22-6-1951 the petitioner moved this court and obtained the present rule. the petitioner has challenged the notifications and action of the government in taking possession, on various grounds which are set out in the petition. but at the hearing the learned counsel appearing for the petitioner has confined himself to only some of those grounds challenging the validity of the notifications and the action taken pursuant thereto.3. it is contended by the learned counsel.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for an appropriate writ for cancellation of certain notifications issued under the provision of the West Bengal Land Development and Planning Act,' 1948 and for direction upon the opposite parties to forbear from taking possession of certain plots of land covered by the said notifications.

2. The petitioner is the owner of 18 Bighas of land comprising certain cadastral survey plots in Mouza Ukhila Paikpara in the, Police Station Sonarpur in the district of 24-Parganas, the particulars whereof are sent out in sch. I annexed to the petition. By a notification issued under Section 4 of W. B. Act 21 of 1948 bearing no. 92 L. Dev. dated 6-1-1950 and published in the Calcutta Gazette dated 12-1-1950 the Government declared that the cadastral survey plots, particulars whereof are given in sch. II to the petition, are likely to be needed for the settlement of immigrants and for creation of better living conditions in the said village Ukhila Paikapara. The petitioner there-after filed an objection against the intended acquisition but no hearing was given to the petitioner. Thereafter, a notification purporting to be issued under Section 6 read with Section 7 of the said Act was published in the Calcutta Gazette, dated 27-4-1950 declaring that the said plots covered by the notification under Section 4 were needed for the settlement of immigrants and for creating better living conditions in the said village. On or about-16-12-1950 possession of the plots mentioned in Sch. II to the petition, excepting plots nos. 259, 571 and 2490, were taken by the Government.

It is alleged in the petition that no notice for delivery of possession was ever served upon the petitioner. In May 1951 the Government attempted to erect certain structures on the said lands and stored building materials near about the petitioner's lands. In the early part of June 1951, the petitioner filed an application before the Special Land Acquisition Officer at Alipore in which request was made to the Land Acquisition Officer to forbear from giving effect to the notifications or taking any steps pursuant thereto but no attention was paid to such request. On 22-6-1951 the petitioner moved this Court and obtained the present rule. The petitioner has challenged the notifications and action of the Government in taking possession, on various grounds which are set out in the petition. But at the hearing the learned counsel appearing for the petitioner has confined himself to only some of those grounds challenging the validity of the notifications and the action taken pursuant thereto.

3. It is contended by the learned counsel for the petitioner that as there is no provision under the W. B. L. D. & P. Act for release of any portion of the lands which are covered by the notification issued under Section 4 and Section 6 and to acquire the remaining portion of the land covered by the said notification, the release of a portion of the lands from acquisition has made the entire acquisition proceedings bad. It appears to me that, this contention of the learned counsel for the petitioner has no force. It is clear from Section 8, Land Development Act that after a declaration under Section 6 the provisions of the Land Acquisition Act (Act 1 of 1894) apply to me acquisition made under W. B. L. D. & P. Act. Section 48, Land Acquisition Act, provides that excepting the cases provided for under Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. This section makes it clear that before actual possession is taken the Government is at liberty to withdraw from the acquisition. There is nothing in Section 48 to suggest or indicate that it is not open to the acquiring authority to make acquisition of any portion of the land in respect of which notices of acquisition have been issued under the provisions of the Act and withdraw from the acquisition as to the rest. This principle embodied in Section 48, Land Acquisition Act is applicable to acquisition made under the Land Development Act, 1948 and it is therefore open to the Government to release portions of the lands from acquisition under the Land Development Act. There is no provision either in the Land Acquisition Act or in the Rules made thereunder requiring any notification to be published in case the Government proposes to withdraw from any particular acquisition. Even if any such notification is necessary in order to make withdrawal from the acquisition complete, there is no doubt that non-publication of any such notification declaring the fact of withdrawal from the acquisition does not make the notifications issued under Section 4 and Section 6 read with Section 7 or any proceedings taken thereunder invalid.

4. The next point raised by the learned counsel for the petitioner is that the facts of the case indicate that there was no urgency for the Government taking steps under Section 7, West Bengal Land Development & Planning Act and issuing a notice under Section 6 read with Section 7 of the said Act and as such the notification published on 27-4-1950 under the said two sections of the Act and all proceedings taken thereunder must bo held to be invalid. It appears to mo that this contention of the learned counsel for the petitioner cannot be accepted. The opinion of the Government as to the urgency cannot be questioned. The Government is made the sole judge about the existence of such urgency. (See in this connection by way of analogy, Bhagat Singh v. Emperor 58 Ind. App. 169 (P. C.) at pp. 171 (bot.)-172). If this question of urgency can be agitated or in other words made justiciable in a Court of law then the very object of the Land Development Act will be frustrated. One of the objects of the Land Development Act is to rehabilitate the refugees as appears from the definition bf 'public purpose' given in the Act. Such an object demands speedy acquisition of lands. If steps taken under Section 7 are questioned freely in a Court of law the progress of acquisition is bound to be hampered. The notifications in the present case have for their avowed object the acquisition of the petitioner's lands and other lands for settlement of the immigrants and for creation of better living conditions in the village where the lands are situated. So, it is clear from the notifications themselves that there is urgency for the acquisition.

5. It is true that in the present case a notification under Section 4 was issued on 12-1-1950 and the notification under Section 6 read with Section 7 was published on 27-4-1950 and possession was not taken till about 8 months thereafter i.e. till 16-12-1950. But it will not be proper 'merely from these dates to come to a definite conclusion that there was no urgency in respect of the acquisition or that the action of the Government is mala fide. Excepting a bare allegation of mala fide in one of 'the grounds taken in the petition no particulars have been given in the petition in support of the charge of mala fide against the Government. If the petitioner had made any definite case the opposite parties might have placed sufficient materials before the Court explaining the delay in the steps taken by the Government for the purpose of acquisition of the petitioner's lands and it might have been clear from those facts that there is no foundation for this charge of mala fide against the Government. This contention of the learned counsel for the petitioner must therefore fail.

6. The further point raised by the learned counsel for the petitioner is that there are no provisions for compensation in the W. B. L. D. & P. Act or at any rate the provisions are not adequate for payment of just compensation to persons whose lands are acquired under the provisions of the Act and as such the Act is invalid being in contravention of Article 31(2) of the Constitution. It is submitted that Section 17(3) of the Land Acquisition Act makes provision for payment of compensation for sudden dispossession but there is no such provision in the W. B. L. D. & P. Act. It has been held by me as also by the Court of appeal in West Bengal Settlement Kanungoe Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee, : AIR1951Cal111 that all the provisions of the Land Acquisition Act relating to compensation in so far as they are not in any way inconsistent with the Land Development Act are available for determination of the amount of compensation payable for acquisitions made under the Land Development and Planning Act. It is true that the Collector is not bound to offer any compensation before the sudden dispossession takes place, because no such offer is contemplated by the W. B. L. D. &P.; Act, but that does not make the W. B. L. D. & P. Act bad or ultra vires. What Article 31(2) requires is that just compensation has to be paid to persons whoso properties are being compulsorily acquired. The manner or the time of payment may be such as is determined by the Legislature. So long as there are provisions for payment of the just compensation, the requirements of the Article of the Constitution are fully complied with. So this contention of the learned counsel for the petitioner cannot be accepted.

7. It was also contended on behalf of the petitioner that no notice either individual or as contemplated by Rule 8 of the W. B. Land Development and Planning Rules was given before possession was taken and as such the taking of possession was wrongful. It is pointed out that in the counter-affidavit all that is stated is that substance of the Notification under Section 4 was published in the locality as required by Section 4 but there is no mention of any notice being given under Rule 8 before possession was taken, nor any copy of such notice has been produced at the hearing. Mr. Mazumdar appearing for the opposite parties however contends that even if no such notice was given, the taking of possession does not become unlawful. He submits that Rule 8 uses the word 'May' and this indicates that it is not obligatory on the part of the Collector to issue such notice in every case.

8. Rule 8 is as follows :

PROCEDURE FOR TAKING POSSESSION (SECTION 8):

'As soon as a declaration under Section 6 is published in the Calcutta Gazette, the Collector may cause a public notice to be given at; convenient places on or near any waste or arable land including any beel, baor, tank, or other watery area to which the declaration relates stating that the Provincial Government has acquired the land and may take possession of the land on the expiry of three days from the date of such notice.'

9. Now proviso (a) of Section (8) of the Land Development Act enjoins that the Collector is to take possession in accordance with the rules, and Rule 8 is the only rule which relates to taking of possession under Section 8 of the Act.

10. It is a well-settled rule of interpretation that prima facie the word 'may' imports a discretion and it is to be construed as discretionary unless there is something in the nature of the thing empowered to be done, something in the object for which it is done, something in the conditions under which it is to bo done, or something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise the power. (See per Lord Cairns in Julius v. Bishop of Oxford (1880) 5 A. C. 214, 215. See also the observations of Lord Blackburn at p. 244.

11 & 12. Coleridge J. in the case of Beg. v. Tithe Commissioners (1849) 14 Q. B. 459 at p. 474 observed :

'The words undoubtedly are only empowering, but it has been so often decided as to become an axiom that in public statutes words only directory, permissory or enabling may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.'

13. Rule 8 which must be deemed to be part of the Land Development Act or at least as having a statutory force hag been framed for the benefit of the persons whose lands are made the subject of acquisition. Before a person can be deprived of possession of his property, it is only in the fitness of things, that he should have some notice of the intended dispossession. The rule, in my view, casts a duty upon the Collector to give notice for the benefit and in the interest of persons who are going to be deprived of possession of their property by reason of compulsory acquisition. The word 'may' is to be construed as having a compulsory force.

14. But although there is this duty upon the Collector to give notice, the question further arises whether omission to give such notice vitiates the subsequent proceedings or makes the taking of possession illegal. There is nothing to show that the Collector's failure to give notice in the present case was wilful or perverse. There is no specific case made in the petition that Rule 8 has not been complied with. The suggestion in the petition is that no individual or personal notice has been served on the petitioner. But there is no provision in the Act or the Rules to show that any personal notice is required to be served before possession is taken. The opposite parties have stated, in dealing with the allegations in Para. 6 of the petition, that no personal notice is enjoined. Further the statements in para. 6 of the petition are not admitted in the counter-affidavit. It may be that a public notice was given but as-no specific case was made in the petition, no mention was made about it in the counter-affidavit and the Government Advocate was not ready to produce it in Court.

15. Even assuming no notice as required by Rule 8 was published, does this fact vitiate the proceedings? It has been held that in case of failure to give notice under Section 9, Land Acquisition Act,, the proceedings are not rendered null and void. See Kasturi Pillai v. Municipal Council, Erode, 43 Mad. 280, Kanji Juma Khoja v. Emperor A.I.R. 1938 Sind 100 and Sukdev Saran Dev v. Nripendra Narayan, 76 Cal. L. J. 430. There is-no reason why the propositions laid down in these cases should not apply to the present case. Moreover it is quite clear from the counter affidavit that possession was taken so far back as on 16-12-1950. There cannot be much room for doubt that the petitioner must have been aware of the fact of taking possession either at the time the possession was taken or sometime thereafter. The statements in para. 6 of the petition that no notice for delivery of possession was served suggest that the petitioner's case is that possession has been taken without giving prior notice. The petition is carefully reticent about the date when possession was taken. The date may have been deliberately omitted in order to conceal the fact that the petitioner has been tardy in moving the Court. It is difficult in the circumstances, to shut one's eyes to the fact that the petitioner waived the irregularity, if any, but later on conceived the idea of taking a chance in a Court of law. In my view this objection on the score of want of notice must fail.

16. It was further contended by the learned counsel for the petitioner that the provision for making a declaration under Section 7 read with Section 6 is unreasonable as it does not give any opportunity to the persons whose lands are acquired to make representations or objections against the acquisition.

17. Ordinarily, it is not open to a Court of law to go into the question of reasonableness of the provisions of a Statute or to, declare a Statute as ultra vires on the ground of hardship or unreasonableness. In other words, the Court has no power to question the wisdom or the policy of the legislature. But in view of Article 19 of the Constitution the court can go into the question of reasonableness to the extent it is permitted by Article 19. The contention of the petitioner is that Section 7, W. B. L. D. & P. Act infringes Article 19(l)(f) and puts an unreasonable restriction on the right of the petitioner to hold property, as it permits property to be acquired without giving opportunity to make representations against the acquisition. But as I have pointed out repeatedly following the decisions of the Supreme Court in Gopalan v. State of Madras, : 1950CriLJ1383 and Charanjitlal v. {Union of India, : [1950]1SCR869 that if the legislation is one falling under Article 31 of the Constitution, there is no scope for the applicability of Article 19 to such legislation. The question of reasonableness becomes immaterial: See also Md. Safi v. State of West Bengal 55 Cal. W. N. 463.

18. Assuming that Article 19 comes into play in jrespect of the legislation in question, still as the W. B. L. D. & P. Act purports to make acquisition for a public purpose that is, in the interest of and for the benefit of the public (settlement of immigrants has been held to be a public purpose : see Md. Safi v. State of West Bengal 55 cal. w. n. 463) and it is clear that the rehabilitation of refugees is an urgent matter and demands speedy acquisition of lands, the restriction put by Section 7 of the Act at once becomes a reasonable restriction and the provision becomes a valid provision under Article 19(5) of the Constitution.

19. Thus no ground has been made out for interference by this Court under Article 226 of the Constitution and this petition must fail. The rule is discharged.

20. The petitioner will pay the costs of the present proceedings. -Hearing fee is assessed at 3 God Mohurs.


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