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Tulsidas Jewraj and ors. Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rules Nos. 2848 and 3167 of 1951 and 98 of 1952
Judge
Reported inAIR1952Cal912
ActsWest Bengal Land Development and Planning Act, 1948 - Sections 4, 6 and 7; ; Constitution of India - Articles, 19 (1), 19(5), 31 and 226
AppellantTulsidas Jewraj and ors.
RespondentState of West Bengal and anr.
Appellant AdvocateAtul Gupta, Adv. in C. R. Nos. 3167 and 2848 of 51 and 98 of 52, ; Anil Kumar Sinha, Adv., in C. R. No. 2848 of 51, ; Ranjit Kumar Banerjee and ; Anil Kumar Sen, Advs. in C. R. No. 3167 of 51 and ; A
Respondent AdvocateHemendra Kumar Das, Adv., in C. B. Nos. 2848 of 51 and 98 of 52, ; D.N. Basu, Adv., in C. B. No. 2848 of 51, ; Jagneswar Majumdar and ; Mihir Kumar Sarkar, Advs. in C. R. No. 3167 of 51 and ; Smriti
Cases ReferredReg. v. Commr.
Excerpt:
- .....no matter whether it is published in the official gazette or not. in other words, according to mr. gupta the declaration is complete without its publication and the publication is not an essential ingredient of the making of the declaration under section 6 of the act.4. it appears to mo that this contention of mr. gupta cannot bo accepted as sound. it is true that the wordings employed for making declaration under section 4 are not the same as in section 0. but the nett effect of the two sections in so far as making of the declarations is concerned, is the same. so far as declaration under section 4 is concerned, the scheme of making the declaration is contained in one sub-section, being sub-section (1). but so far as the declaration under section 6 is concerned the scheme is to be found.....
Judgment:

Bose, J.

1. (Civil. Rule No. 2848 of 1951.) This is an application under Article 226 of the Constitution for an appropriate writ directing the opposite parties to forbear from giving effect to a notification and a declaration both dated 16-3-1951 and published on 5-4-1951 and 12-4-1951 respectively issued under the provisions of the West Bengal Land Development and Planning Act, 1948.

2. The petitioner is a permanent tenure-holder in respect of a large area of land in Mouza Makla P. S. Utterpara in the district of Hooghly. By a notification dated 16-3-1951 bearing no. 3132 L. Dev. issued under Section 4 of W. B. Act 21 of 1948 and published in the Calcutta Gazette dated 5-4-1951 the Government of West Bengal declared that portions of the lands held by the petitioner, particulars whereof are set out in the second schedule to the petition, were likely to be needed for settlement of immigrants. By a declaration bearing No. 3134 L. Dev. and also dated 16-3-1951 issued under Section 6 read with Section 7 of the said Act 21 of 1948, it was made known that the said plots (which were the subject matter of the notification under Section 4 were needed for settlement of immigrants. This declaration was published in the Gazette on 12-4-1951. The petitioner has challenged the validity of the notification and the declaration on various grounds set out in para. 9 of the petition. But at the hearing the learned Advocate appearing for the petitioner has not pressed all these grounds.

3. The first point raised by Mr. Atul Gupta is that the declaration under Section 6 read with Section 7 is not a valid declaration in as much as at the date when the declaration was' drawn up, the notification under Section 4 of the Act had not been published and there was therefore, no notified area in respect of which, the declaration under Section 6 could be made. Mr. Gupta has drawn my attention to the wordings of Section 4 and to the wordings of Section 6 and points out that a declaration of a notified area under Section 4 can be made only by publishing a notification in the official Gazette, but a declaration under Section 6 is made as soon as it is drawn up and signed, no matter whether it is published in the official Gazette or not. In other words, according to Mr. Gupta the declaration is complete without its publication and the publication is not an essential ingredient of the making of the declaration under Section 6 of the Act.

4. It appears to mo that this contention of Mr. Gupta cannot bo accepted as sound. It is true that the wordings employed for making declaration under Section 4 are not the same as in Section 0. But the nett effect of the two sections in so far as making of the declarations is concerned, is the same. So far as declaration under Section 4 is concerned, the scheme of making the declaration is contained in one sub-section, being sub-section (1). But so far as the declaration under Section 6 is concerned the scheme is to be found distributed in sub-ss. (1) and (2) of Section 6. Publication' of the notifications in the official Gazette is necessary in order to give efficacy to the declarations whether made under Section 4 or under Section 6. Sub-section (2) of Section 6 shows that publication in the Gazette of the declaration is made obligatory. Until publication the declaration remains an inchoate declaration but on publication it becomes operative or effective. The observations made by me in Mohammed Safi v. State of Wed Bengal, 55. Cal. w. N. 463 at pp. 4(58-469 in relation to the declaration under Section 4 are equally applicable to the declaration made under Section 6. The two sub-sections of Section 6 must be read together. It is only on publication on 12-4-1951 that the declaration came into force. If the declaration under 8. 6 in the present case had been simply drawn up and signed but was not published at all could it be said that the declaration was one which was under or as contemplated by Section 6 of the Act? The answer must be in the negative, because Section 6 (2) expressly enjoins that declaration has to be published. Unless it is published it does not satisfy the requirements of Section 6 and cannot therefore be declaration within the meaning of that section. The learned Government Advocate drew my attention to the case of Harlan v. State of Rajasthan, (1952) S. C. A. (Cal. W. N.) 299 (S. C.) in support of his argument that just as a piece of legislation unless made know to the public cannot affect the public, so a declaration under 8. 6 unless made known to the public by notification in the Gazette, cannot affect the public or their property.

5. In my view this contention of Mr. Gupta must fail.

6. The next point which has been urged by Mr. Gupta and which is common to C. R. No. 2848 of 1951 and to c. it. No. 3167 of 1951 and C. R. No. 98 of 1952 is that Section 7 of the Act which enables the Provincial Government to acquire the property of a person by making a declaration under Section 6 without giving such person an opportunity to make representations against the acquisition is an unreasonable provision and as such, it infringes Article 19(5) of the Constitution road with Article 19(1)(f) thereof and so the section should be declared void. Consequently, the declaration under Section 6 must also be declared invalid. Mr. Gupta has placed, reliance on the cases of Anderson National Bank v. Luckett, (1944) 321 U. S. 233, 88 Law. Ed. 692 at pp. 704-705 and the case of Hagar v. Reclamation Dist. No. 108, (1884) 111 U. S. 701 : 28 Law. Ed. 569 at p. 572 for the purpose of showing that

'notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of We, liberty or property.'

Mr. Gupta has also referred to the case of General Medical Council v. Spakman, (1943) A. C. 627 in support of the same proposition. It is submitted by Mr. Gupta that under Article 31(1) of the Constitution no one can be deprived of his property save by authority of law and the law within the meaning of this Article must be a valid law. Further, according to Mr. Gupta, a law relating to compulsory acquisition of private property for public purpose must not only conform to the requirements of Article 31(2) of the Constitution but it must also conform to other provisions of the Constitution, which have any bearing upon the subject and inasmuch as Section 7, W. B. L. D. Act contravenes Article 19(5) road with Article 19(1)(f) tho section is not a valid provision and so a declaration issued in pursuance of this section read with Section 6 cannot effectively deprive a person of his property.

7. Mr. Gupta argued that for the purpose of determining whether any law imposes reasonable restrictions on the exercise of the right to acquire, hold and dispose of properties, both the substantive and procedural aspects of the impugned restrictive law should be examined from the point' of view of reasonableness. It is pointed out with reference to the case of State of Madras v. V.G. Row, : 1952CriLJ966 that 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 restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions of the times, should all enter into the judicial verdict. It is urged that tested in the light of the observations afore said of the Supreme Court, section 7 of Act 21 of 1948 which provides for expropriation of private property without affording opportunity to the owner to be heard, oversteps the bounds of reasonableness and so must be condemned as invalid. It may be noted that V. G. Row's 'case, was not concerned with any legislation of the type falling under Article 31 of the Constitution but it related to the question of the validity of a legislation affecting the fundamental right to form associations guaranteed by Article 19(1)(c) of the Constitution and hence the question of reasonableness of the restrictions imposed on that right was a material question.

8. It is now, however, a fairly settled proposition that if a legislation relates to compulsory acquisition of property and is of the type falling within Article 31 of the Constitution the applicability of Article 19(1)(f) and Article 19(5) is excluded and the question of reasonableness of the provisions of the statute in question becomes immaterial.

8a. In the case of Gopalan v. State of Madras, : 1950CriLJ1383 , Kania C. J. observed:

'If the legislation is not directly in respect of any of the subjects mentioned in Article 19 but as a result of the operation of other legislation any rights guaranteed by the sub-clauses in Article 19 are abridged, the question of the application of Article 19 does not arise.'

8b. Das J. also made observations of a similar nature at p. 118.

9. In the case of Chiranjit Lal v. Union of India, : [1950]1SCR869 , Das J. reaffirmed, the said proposition. In para. 74 of the judgment at pp. 60-61 the following passage occurs:

'Therefore, it will be necessary to consider first whether the share-holder or the company has been deprived of his or its property by authority of law under Article 31 for if ho or it has been so deprived, then the question of his or its fundamental right under Article 19(1)(f) will not arise.'

10. Again in the case of Ramsingh v. State of Delhi, (1951) S. C. R. 451 at pp. 455-457, the learned Judges of the Supreme Court reaffirm the observations made by Kania C. J. in Gopalan's case : 1950CriLJ1383 with regard to the interpretation of the different Articles and their correlation, in part, in of the Constitution.

11. So far as this High Court is concerned, Harries C. 3. and Banerjee J. in the case of Sudhindra Nath v. Sailendra Nath, 87 Cal. L. J. 140 put the same construction on the scope of Article 19(1)(f) and Article 31 of the Constitution. With reference to Article 19, the learned Chief Justice observed:

'In my judgment this Article has no application to cases where a State or any person is empowered to deprive another of his property. The relevant Article in my opinion, is Article 81.' (page 140)

Then again at p. 147 it was observed as follows:

'In my opinion it is quite clear that Article 19(1)(f) of he Constitution has no application to oases where a State, authority or person has Compulsorily acquired property or obtained possession of. property.'

11a. Although the learned Chief Justice was somewhat definite in his exposition of the two-Articles in this case, ho appears to have struck a. different note or rather his interpretation of the Articles became somewhat qualified in the case of W. B. S. K. Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee, 55 Cal. W. N. 778. The observations of the Chief Justice at p. 789 suggest that he wanted to leave this question open but at p. 790 he seems to have committed himself to the view that although a legislation is of the type contemplated by Article 31 it should also conform to the requirements of Article 19(5) road with Article 19(1)(f) of the Constitution.

12. Following the observations of the Supreme Court and the observations of Harries C. J. in Sudhindra Nath Butt's case (87 cal. l. j. 140), I have held that in case of legislation dealing with compulsory acquisition the operation of Article 19(5) and 19(1)(f) is not attracted-see Mahomadh Safi v. State of West Bengal, 55 Cal. W. N. 463 and Narul Huq v. Slate of West Bengal, 56 Cal. W. N. 183 at p. 186 and other cases.

13. It may be further noted that the Allahabad High Court in the case of Suryapalsingh v. U. P. Government, : AIR1951All674 para. 28 and at p. 690 para. 80 has taken, the same view which I have taken in the above cases. I am also supported with regard to the view that I have taken above by two decisions of the Bombay High Court reported in Dwarlcadas Shrinivas v. Shola Pur Spg. & Wvg. Co. Ltd., : AIR1951Bom86 and Abdul Majid v. P. R. Nayak, : AIR1951Bom440 .

14. It appears to me that it is not open to the Court to go into the question of reasonableness of the provisions of the West Bengal Land Development and Planning Act and declare the Act or any of its provisions ultra vires on the ground that the requirements of Article 19(5) have not been satisfied. The attack of Mr. Gupta on the validity of Section 7 or the declaration made under Section 6 read with 7 must therefore fail.

15. Mr. Gupta has raised a further point in C. it No. 98 of 1952 and C. E. No. 3167 of 1951. It is pointed out that in C. it No. 98 of 1952 the Notification under Section 4 of the Act and the declaration under Section 6 read, with Section 7 were both dated 14-7-1950 and were published simultaneously on 3-8-1950. Subsequently by a notification dated 27-3-1951 and published in the Gazette on 19-4.-1951 the declaration No. 7880 dated 14-7-1950 made under Section 6 read with Section 7 was withdrawn. Ultimately another Notification dated 31-8-1951 made under Section 6 read with. 7 of the Act was published on 13-9-1951, and it cancelled the said Notification No. 7880 dated 14-7-1950.

16. Similarly, with regard to C. R. No. 3167 of 1951 it is pointed out that the Notification under Section 4 and the declaration under Section 6 read with. Section 7 were dated 31-10-1950 but were published on 11-11-1950. Ultimately on 4-9-1951 a fresh declaration under Section 6 read with Section 7 was made in substitution of the earlier declaration under Section 6 read with Section 7 and the same was published on 7-9-1951.

17. Upon these facts it is urged by Mr. Gupta that there was no such urgency as to justify the Government's action in having recourse to Section 7 of the Act for making a declaration under Section 6 thereof, and so the subsequent declarations under Section 6 read with Section 7 should be declared invalid.

18. I have already, held in C. R. No. 1409 of 1951, Naba Kumar Seal v. State of West Bengal, that the opinion o the Government as to the urgency cannot be questioned or in other words is not justiciable in a Court of law. The Government is made the sole judge about the matter. (See in this connection by way of analogy the decision of the Judicial Committee in Bhagat Singh v. Emperor, 58 Ind. App. 169 at p. 171 (bot.)-172). I have pointed out that if this question of urgency can be agitated in a Court of law then the very object of the Land Development Act will be frustrated. One of the objects of the Act is to rehabilitate the refugees as appears from the definition of '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 (of. Section 17 (1) and 17 (4), L. A. Act 1894). The notifications in the present cases have for their avowed object the settlement of immigrants. So it is clear from the notifications themselves that there was urgency for the acquisition. Further, there might have been other materials which prompted the Government to have recourse to Section 7 of the Act.

19. Even assuming that the question of urgency is justiciable it is clear that the Legislature has committed to the Provincial Government the power or jurisdiction to determine the question whether an urgency exists or whether delay is likely to be occasioned by reason of the preparation or sanction of any scheme in respect of the acquisition. That being so, the case falls within the second part of the formula enunciated by Lord Esher in the case reported in Reg. v. Commr. for Special Purposes of the Income Tax, (1888) 21 Q. B. D. 313 at p. 319 (bot.)-320, and even if the government has made an erroneous decision on the question of urgency such determination or decision cannot be interfered with by the Court under Article 226 of the Constitution. This Court, as has been repeatedly pointed out, does not function as a Court of Appeal.

20. In C. R. No. 98 of 1952, the counter-affidavit states that at the time the Notification was made the Government felt the immediate need of settling the refugees as there was heavy influx of refugees from East Bengal, and further the government was of opinion that preparation of development scheme was likely to delay the matter. So recourse was had to Section 7 of the Act. The possession of the lands was taken by the Government on 11-9-1950, that is, about five weeks after the declaration was published. This shows that there was urgency. It is further pointed out in the affidavit that the Notification dated. 27-3-1951 related, to withdrawal of acquisition in respect of a portion of the notified lands and it was not a notification for withdrawal of the earlier declaration made under Section 6 read with Section 7. It is also stated in this affidavit that after the decision of this Court cancelling the notification under Section 6 read with Section 7 it became necessary to issue a fresh declaration to regularise the acquisition and so that was done. Md. Safi's case, 55 Cal. w. N. 463 was decided in March 1951 and it is true that the fresh declaration was made about six months thereafter but as possession had already been taken and some refugees had been settled, the delay in making the fresh declaration did not really affect the position. It is clear that the same urgency which necessitated the making of the declaration dated 14-7-1950 prompted and justified the making of the fresh declaration in August 1951.

21. Similarly in C. R. No. 3167 of 1951, the possession of the lands was taken on or about 11-12-1950, that is within three weeks of the publication of the declaration under Section 6 read with Section 7. The fresh declaration was made in September 1951 but it has to be remembered that the petitioner had obtained a Rule in which he challenged the earlier Notifications and in this .Rule an injunction had been granted restraining further proceeding in the matter of acquisition (para. 7 of petition). This necessarily hampered the progress of acquisition.

22. So even if it were open to this Court to go into the question of urgency and revise the decision of the Government on the point it could not be said that there was no such urgency as to justify the Government in taking action under Section 7 of the Act.

23. In my view these petitions must fail. The Rules are accordingly discharged. The petitioners will pay the costs of the opposite parties. Hearing fee being assessed at five gold mohurs in each of the Rules.


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