A.K. Mukherjea, J.
1. In this application the legality of certain land acquisition proceeding started by the State of West Bengal has been challenged. The short facts of the case are as follows: The Petitioners are joint owners of a piece of land within the municipal area of Calcutta. This land comprises premises Nos. 1 and 3 Kulia Tangra Third Lane and premises Nos. 6-A, 6-B, 6-C and 7 Kulia Tangra 4th Lane. The petitioners allege that about 11 or 12 years back, they or their predecessore-in-interest settled three out of the said plots of land namely, premises Nos. 6-A, 6-B and- 6-C, Kulia Tangra 4th Lane with various monthly tenants and gave the said tenants the right to build their own structures on their respective plots of land. Several un lateral kabuliats were executed by these tenants in favour of the petitioners or their predecessors-in-interest. Premises No. 7, Kulia Tangra 4th Lane and 6. Kulia Tangra 3rd Lane had been settled about 20 years back with certain other tenants, on similar basis and these tenants after erecting their own structures on these plots of land have been residing there ever since.
The tenants who had settled on premises Nos. 6-A,. 6-B and 6-C, Kulia Tangra 4th Lane were immigrant refugees from East Pakistan. The tenants of the other plots, namely, premises No. 7, Kulia Tangra 4th Lane and premises No. i, Kulia Tangra 3rd Lane are not however, refugees.
2. On or about 24th January, 1957 a notify cation was issued under Section 4 of the Land Acquisition Act, 1894 in the following terms:
'Whereas it appears to the Governor that land is likely to be needed for a public purpose, not being a purpose of the Union, namely, for the settlement of immgrants migrated to the State of West Bengal on account of circumstances beyond their control in Ward No. 49 of the Calcutta Municipality, in the City of Calcutta, it is hereby notified that a piece of land comprising premises Nos. 1, 2 and 3 Kulia Tangra 3rd Lane, Premises Nos. 2, 6-A, 6-B and portions of 6-C and 7, Kulia, Tangra 4th Lane and premises No. 32/1, Canal South Lane and measuring 12.2974 Kottas bounded is likely to be needed for the aforesaid public purpose at the public expense within the aforesaid Ward No. 49 of the Calcutta Municipality.'
3. The notification was published in the Calcutta Gazette of 24th January, 1957. Thereafter there was also a declaration under Section 6 of the said Act which declaration was published in the Calcutta Gazette of 25th February, 1960 through Notification No. 2580 L. A. dated the 19th February, 1960. After the first of these Notifications had been published the petitioners made various representations with the authorities concerned but apparently nothing availed. The petitioners allege, however, that in course of these representations it transpired that the proposed land acqusition proceedings had been started for the benefit of the same persons who are actually residing just now on the plots sought to be acquired and who have been the petitioners' tenants for long time. The petitioners further state that they had given various assurances to Government to the effect that the petitioners would take no steps to evict the tenants now existing on the said plots of land. In spite of such assurances. Government refused to drop the acquisition proceedings since, it is alleged, Government intended to give permanent title to the persons already in occupation under the petitioners. In any event, the declaration under Section 6 of the Act published on the 25th February 1960 as aforesaid set at rest these negotiations between the petitioners and Government.
4. The petitioners are now challenging the two notifications mentioned above as illegal. Mr. P. K. Roy, appearing for the petitioners made an interesting argument in support of his contention that the notifications are illegal. Mr. Roy did not challenge the existence of a 'public purdose' which is the usual target of attack in, similar proceedings. He conceded that since the proceedings are under the Land Acquisition Act the fact or validity of the 'public purpose' for which the land acquisition proceedings had been initiated is not justiciable. Mr. Roy argued that the West Bengal Government had no jurisdiction to issue the notifications as the scope of their executive authority does not permit the issue of such notifications. I may explain how Mr. Roy developed this argument.
5. Land acquistion proceedings may be initiated and conducted by both the Union Government as well as the State Governments. Section 4 of the Land Acquisition Act runs as follows:
'4(1) Whenever it appears to the appropriate government that land .n any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published etc.
(2) Thereupon it shall be lawful for any officer,either generally or specially authorised by suchGovernment in this behalf, and for his servants, and workmen, etc,'
6. Standing by itself, Section 4 of the Land Acquisition Act enables both the Union Government and the State Governments to initiate the proceedings. The notification in the instant case makes it clear that the land was being acquired by the Government of West Bengal for a purpose which is not the purpose of the Union. Therefore the 'appropriate government' for the purpose of this particular proceeding is the West Bengal Government. Mr. Roy contended, however, that it is not within the competence of the Government of West Bengal or, for the matter of that, any State Government to exercise any executive authority in connection with the purpose which has been specifically mentioned in the notification as the public purpose for which the proceedings have in fact been initiated. Under Article 162 of the Constitution 'the executive power of a State usually.
extends to the matters with respect to which the legislature of the State has power to make law.' Therefore, no State Government can exercise its executive authority in regard to matters about which its legislature has no power to make law. Now, the public purpose for which the Government of West Bengal is, in its executive capacity, conducting the land acquisition proceedings, has been stated in the notification in express terms as 'the settlement of immigrants who have immigrated into the State of West Bengal on account of circumstances beyond their control.' The question is : Could the West Bengal Legislature legislate for this purpose? Mr. Roy argued that there is nothing in List II of the 7th Schedule to the Constitution which would permit the West Bengal Government to enact laws for acquisition of land for the particular purpose with which we are concerned in this particular case. Therefore, since the sphere of the executive capacity of the West Bengal Government is co-extensive with its legislative capacity the West Bengal Government could not initiate or carry on land acquisition proceedings for the particular purpose specifically mentioned in the notification.
7. This argument, when it was at first made to me, did appear attractive and nothing that the teamed Senior Government Pleader appearing for the West Bengal Government argued seemed to destrot the effect of Mr. Roy's argument until my attention was drawn to the fact that both parties had overlooked the simple point that by the Consitution (Seventh Amendment) Act, 1956. Section 27, item 42 in List III of the Seventh Schedule had been amended so that at the relevant time Item 42 read: 'Acquisition and requisitioning of property'. With this amendment in the Constitution, all limits and letters on the State legislature's powers to pass laws for the acquisition and requisitioning of propertys were removed. By reason of Article 162 of the Constitution, the State's executive power was also extended simultaneously and now obviously the State can initiate and carry out proceedings for acquisition and requisitioning of property for any purpose whatsoever so long as this was permissible under the Land Acquisition Act. When Mr. Roy was confronted with this argument, he took a slightly different stand. He argued that Item 42 in List III of the Seventh Schedule of the Constitution should not be looked into for determining whether the State Government or the Union Government is the appropriate Government for land acquisition proceedings, otherwise Sections 3(ee), 4 and 6 of the Land Acquisition Act will become superfluous. Section 4 authorises the issue of a notification when 'it appease to the appropriate Government that land in any locality is needed or likely to be needed for any public purpose.'' Section 6 similarly authorises a declaration that land is required for public purpose 'when the appropriate Government is satisfied, after considering the report, if any, made under Section' 5(a) Sub-section (2)' of that Act. The expression ' 'appropriate.' Government' is defined in Section 3(ee) as meaning 'in relation to acquisition of land for the purposes of the Union, the Central Government and in relation to acquisition of land for any other purposes, the State Government'. Mr. Roy said that if we were to determine the extent of executive capacity of the State Government for the purposes of land acquisition with reference to Item 42 in List III of the Seventh Schedule to the Constitution, it would mean that both the Central Government and the State Government would be competent to acquire any land for all purposes so long as those purposes could be described as 'public purposes''. This construction would render those provisions in the Land Acquisition Act which refer to an 'appropriate government' in connection with land acquisition proceedings senseless and redundant. Therefore, item No. 42 must be harmonised with Sections 3(ee), 4 and 6 of the Land Acquisition Act by determining the appropriate Government with reference only to the Land Acquisition Act.
8. I am afraid I find no substance in Mr.Roy's contention. To my mind Mr. Roy's present contention militates against his earlier admission that the fact and validity of the 'public purpose' for land acquisition proceedings under theLand Acquisition Act is not justiciable. The notification of 24th January, 1957 in its very preamblestates:
'Whereas it appears to the Governor that land is likely to be needed for a public purpose, not being a purpose of the Union, namely, for the settlement of immigrants migrated to the State of West Bengal, on account of circumstances beyond their control.........'
I do not see how it can be argued that the Government of West Bengal would not be the appropriate Government for acquiring land for the settlement of immigrants migrated to the State of West Bengal. Unless the 'public purpose' itself is challenged, it is, in my opinion, impossible to impeach the notification. Mr. Roy's earlier argument apparently based on an old edition of the' Constitution of India and directed at the executive capacity of the Government of West Bengal was certainly plausible. But with the amendment of the Constitution of India that objection can no longer be sustained. Even if we accept Mr. Roy's subsequent suggestion that Item 42 should not be looked into for finding out the appropriate Government, I do not see how that will help the case of the petitioners. Even confining our attention to the Land Acquisition Act, the appropriate Government for the settlement of immigrants' migrated to the State of West Bengal will certainly be the Government of West Bengal.
9. Mr. Roy does not raise any other contention. I must, therefore, hold that there is no substance in the present petition.
10. The application is dismissed and the ruledischarged. In the circumstances of this case, Imake no order as to costs.