1. This application has been made by a Hindu deity, represented by its shebait Sri Krishna Kishore Gupta, and the said Krishna Kishore Gupta in his individual capacity. It is in connection with a plot of land within Mouza Nahesh, P.S. Serampore, comprising an area of more or less 4 cottahs, situate within the Serampore Municipality. This plot of land is situate at the back of Sri Gupta's residential house at Serampore, and is a bare plot with a derelict latrine in it. It is further stated that the land is surrounded by latrines of adjoining premises. This land is being sought to be requisitioned under the West Bengal Land (Requisition and Acquisition) Act of 1948, and the complaint herein is against the requisition order.
2. In order to appreciate the facts it would be necessary to go back as far as the year 1920. Since then, there has been an attempt to have a sewerage scheme for the Municipal town of Serampore which badly needs the same, particularly as there are a number of Mills in the locality and the problem of sewerage is acute. So far as the Municipality was concerned, it was unable to execute any such scheme for lack of funds. On 2-6-1936 the Executive Engineer, Western Division, Public Health Department of the Government of Bengal, prepared a report in respect of the sewerage scheme. This was revised by the Chief Engineer, Public Health Department, in September, 1939. At this juncture, the World War No. II broke out and the work of implementing the scheme became impossible, Alter the cessation of the War, the scheme was again taken up by the Government and was revised, because due to rise of prices of commodities and increase in population, the original scheme had become inadequate. A second revised scheme was prepared and thereafter a third revised scheme. The expenditure under the third revised scheme was expected to be in the neighbourhood of Rs. 14,24,055/-. Subsequently, it was revised again for the fourth time and the cost of the scheme was raised to Rs. 17,22,700/-. It was this scheme that was finally sanctioned by the Government. Under the scheme, the different Mills who would be benefited by the scheme were to pay Rs. 4,74,650/-; the Government was to contribute Rs. 11,48,467/-, and the balance of Rs. 99,583/-was to be contributed by the Municipality and even this was to be obtained from the Government in the first instance as a loan.
3. On 9-3-1946 a special meeting was held by the Municipal Commissioners of Serampore. A copy of the resolution passed at the special meeting is annexed to the affidavit of Sri Prafulla Kumar Chakravartty, affirmed on 20-1-1958, being Annexure I thereof. This meeting had been called to consider the third revised sewerage scheme prepared by the Public Health Department of the State of West Bengal involving an initial expenditure of Rs. 14,24,000/-. The resolution showed that the expected Government contribution was in the neighbourhood of Rs. 9,49,500/- and the expected contribution by the Mills was Rs. 14,24,055/-. By the resolution, the Municipality undertook to pay the cost for the land acquisition in connection with the scheme and to meet the recurring charges of upkeep and maintenance. The operative part of the resolution is as follows :
'Resolved that in view of the co-operation offered by Mills and their decision to participate in a comprehensive Sewerage Scheme for the Municipal area, instead of having small independent installations which they are required to arrange under the Factory Rules and in view of the fact that the recurring cost can be met from the saving in expenditure under the conservancy head after the introduction of the Sewerage Scheme, the Scheme be sanctioned and be taken up at once in order that sanitary condition of the town as a whole and the labour colonies and the bustees in particular can be effectively improved. Government be moved to accord administrative approval and to sanction two-thirds of the capital cost, amounting to Rs. 9,49,500/- and the Municipality undertaking to raise from the Mills the balance of the capital cost, already promised by them, amounting to Rs. 4,74,555/-, and to meet the recurring charges of upkeep and maintenance from its own funds.
Resolved further that steps be taken Co start Land Acquisition proceedings and to acquire the requisite land as shown in the scheme for dumping shutes, outfall works and other items, the cost being met from the Municipal fund.'
4. As I have mentioned above, the scheme was ultimately revised once again and the contributions from the Mills and the Municipality, as also the contribution to be made by Government, were finally fixed at figures indicated above. It appears that the District Magistrate of Hooghly called a conference of the representatives of the various Mills concerned, who agreed to pay their respective contributions towards the capital cost. The Government also sanctioned the payment to be made by itself, as also the loan payable to the Municipality, and necessary provisions were made in the budget. The execution of the scheme was entrusted by Government to the Chief Engineer, Public Health Department, and a programme of work was drawn up, to be spread over a period of five years commencing from the financial year 1950-51.
5. On the 6th December, 1950 the Chairman of the Serampore Municipality wrote a letter to the Member, Board of Revenue, a copy whereof is Annexure II to the said affidavit of Sri Prafulla Kumar Chakravarty. It was stated that at a conference of the representatives of the Mills and other interested parties, held on 6-11-1950, it was resolved that the Government be moved for the summary acquisition of the required land by application of the West Bengal Land (Requisition and Acquisition) Act II of 1948. In the letter it was stated as follows:
'The project is a Government project, the execution of the work is to be done through the agency of the Public Health Department of Government and 2/3rd of the Capital Cost of the Scheme is also payable out of the Provincial Budget. For all practical purposes it is a Government Scheme, the beneficiaries of which will be the Municipality and the public of Serampore. I trust, therefore, that this is a fit case for the application of the summary powers, contemplated by the Requisition and Acquisition Act'.
6. On 4-1-1951, the Government of West Bengal, in its Land and Land Revenue Department, Land Acquisition Branch, requested the Collector of Hooghly to take immediate steps for the requisition and acquisition of the land required by the Serampore Municipality in connection with the execution of the sewerage scheme at Serampore under the West Bengal Land (Requisition and Acquisition) Act of 1948.
7. By a registered deed of Arpannama, dated 1-6-1934, the petitioner Sri Krishna Kishore Gupta dedicated the plot of land in question to the other petitioner, Sri Sri Luxmi Janardan Jew, a Hindu deity, appointing himself as the sole shebait.
8. On or about 15-6-1954 an order was made by the Collector of Hooghly under Sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, (Act II of 1948). The material part of the order is as follows:
'Whereas in my opinion it is necessary for the purpose of maintaining Supplies and Services essential to the life of the community, viz. for construction of dumping depot No. 4 by Municipality, to requisition the land described in the Schedule below:
Now, therefore, in exercise of the power conferred by Sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948), read with the authority so vested in me as aforesaid I do hereby requisition the land mentioned in the Schedule below and make the following further orders namely: (1) That possession of the land will be taken on 17-6-54 at 1 P. M'.
The subject-matter of the requisition was part of plot No. 1681 in Mouza Mahesh, P.S. Serampore, originally belonging to Petitioner No. 2 and dedicated as aforesaid to Petitioner No. 1.
9. This order was served on the petitioner Sri Krishna Kishore Gupta in his individual capacity on 15-6-1954. On 16-6-1954 the said petitioner filed a petition before the District Magistrate and Collector of Hoogly stating, inter alia, that the land belonged to the said deity and was used for worship of the deity since 1945. The requisition of the land was objected to. This objection was not entertained and as the respondents continued to act under the impugned order, this application has been made challenging the order of requisition, I might mention here that even before the order of requisition was made, the land was being surveyed, in contemplation of acquisition and in fact other lands were being requisitioned for the Sewerage Scheme from time to time under Act II of 1948. It is in evidence that on 2-4-1954 a survey party walked over the land in question and inspected it and on 4-4-1954, Sri Krishna Kishore Gupta wrote a letter to the Chairman of the Serampore Municipality protesting against such action. It is on 1-6-1954 that the land was dedicated to the deity by a registered Arpannama.
10. In this application, Mr. Bose, appearing on behalf of the petitioners, has taken the following points:
(i) That the requisition of the land is wholly invalid as it has been done in contravention of the provisions of Section 98 of the Bengal Municipal Act, 1932. It is stated that under that section the State Government may, at the request of the Commissioners at a meeting, proceed to acquire land which is required by the Municipality for purposes of the Bengal Municipal Act, under the provisions of the Land Acquisition Act, 1894.
(ii) That the West Bengal Land (Requisition and Acquisition) Act of 1948 is ultra vires, inasmuch as it violates the fundamental rights of the petitioners under Article 19(1)(f) of the Constitution, namely, to acquire, hold and dispose of property, It is stated that the provisions constitute an unreasonable restriction on such fundamental right, inasmuch as:
(a) no opportunity is provided for the preferring of any objection, or for hearing the same, in connection with the requisition or acquisition of the land;
(b) that the power to requisition has been given to the State Government with the power to delegate it to 'any person' authorised in this behalf;
(c) that not only is such arbitrary power given to Government, but it is given to the delegate too, without any opportunity being given to the person whose land was being requisitioned, to make any objection. Penal provisions have been provided for contravention of an order under the Act and such orders cannot be challenged in a Court of law, nor is there an appeal against any order made under the Act.
(iii) That assuming that the West Bengal Land (Requisition and Acquisition) Act of 1948 is valid, then the requisition order made under Section 3(1) thereof is bad inasmuch as:
(a) such requisition was not necessary in the opinion of the person making it, who had merely been ordered by the Government to requisition the land; and
(b) that the land was used for purposes of religious worship and under the proviso to Section 3(1) of the said Act, such land could not be requisitioned.
11. The first objection is really based upon the wordings of Section 98(1) of the Bengal Municipal Act, 1932, which runs as follows:
'98. (1) When any land, whether within or without the limits of a municipality, is required-
(a) for the purposes of this Act, or
(b) for the recoupment of the cost or any portion of the cost of carrying out any such purpose, the State Government may, at the request of the Commissioners at a meeting, proceed to acquire it under the provisions of the Land Acquisition Act, 1894'.
12. It is argued that in this case the land was required within the limits of the Municipality for the purposes of the Act and the Commissioners at a meeting could request the State Government to acquire such land under the previsions of the Land Acquisition Act, 1894. It is stated that the Municipality is a statutory body and therefore its powers are limited to the statute of its incorporation. If it proceeds to acquire land under the provisions of the Bengal Municipal Act, 1932, it can only do so in the manner provided and in no other manner. There can be no doubt that the principle propounded is unexceptionable. A statutory body is severely restricted to the powers granted to it under its statute of incorporation. It must limit its action within the four corners of such statute. In the case of Manick Chand v Corporation of Calcutta, ILR 48 Cal 916: (AIR 1921 Cal 159) it was held that the special powers of the Corporation for the purposes of acquiring land cannot be used to enable another body to acquire land through them, however, estimable the purpose. The power to acquire is limited to cases where the Corporation itself undertakes the work. In that case, the land was required by the Calcutta Improvement Trust for widening of Banstolla Street, and the Government of Bengal attempted to acquire land belonging to the petitioner in that case, at the expense of the Corporation of Calcutta, although it was really being acquired on behalf of the Calcutta Improvement Trust. This was held not to be permissible, as it was not in accordance with the provisions of the Calcutta Municipal Act (Act III of 1899). In the case of Maniruddin Bepari v. Municipal Commissioners, Dacca. ILR 63 Cal 295 at p. 298 R. C. Mitter. J. said as follows:
'It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The corporation has no power to do anything unless those powers are conferred on it by the statute which creates it.'
13. Reference has also been made to my decision in the case of Narendra Prosad Singh v. State of West Bengal, : AIR1957Cal98 , where I held that the leasing out of a ferry must strictly comply with the provisions of the Bengal Ferries Act, that is to say, effected by a public auction.
14. It is argued that the Municipality here purported to acquire land under Section 98 of the Bengal Municipal Act, 1932, and the special resolution, dated 9-3-1946, is a request to Government under Section 98. Firstly, it is said that a requisition for land which is going to be utilised by some other body for the implementation of a scheme does not come within the provision of Section 98 and secondly that if at all the land is to be acquired under Section 98, then it must be acquired under the provisions of the Land Acquisition Act, 1894, and under no other law. In my opinion, the position here is somewhat different. Firstly, there is no acquisition but a requisition of land, which of course can be considered as a partial acquisition. Secondly, it is not an acquisition of land as contemplated by Section 98 at all. In fact, Section 98 has got nothing to do with it. It is for this purpose that I have set out the history of the case commencing from 1920. It is not that the Commissioners wished to execute some work and therefore required the land, which they approached Government to acquire for them at their expense. The land was being requisitioned for implementation, not of a Municipal scheme, but of a State scheme. The entire scheme, has been framed by the Government and the Public Health Department is carrying it out. In fact, it was found necessary to do so Because the nature of the scheme and the immense expenditure involved, put it beyond the capacity of the Municipality, to either frame a scheme or to implement it if however the resolution at the special meeting be taken to be a request, as contemplated in Section 98, then also I do not think that there is anything wrong, on the face of the resolution. That resolution merely states that land acquisition proceeding should be started. This is no contravention of the provisions of Section 98. The subsequent letter by the Chairman, pointed out that regard being had to the urgency of the matter proceedings should be taken under the summary provisions of the West Bengal Land (Requisition and Acquisition) Act, 1948, because the scheme was not a Municipal scheme but a State scheme, Comment has been made to the effect that the Chairman had no authority or jurisdiction under Section 98 to ask for acquisition under any Act, or in any event by any means other than the Land Acquisition Act. In my opinion, the Chairman was not acting in terms of Section 98. The special resolution of the Municipality dealt with the third revised scheme, as I have stated above. This was followed by a different scheme altogether, namely, the fourth revised scheme, and that scheme was not a Municipal scheme but a State scheme, whereby Government was going to carry out a particular scheme through the Public Health Department. The Municipality merely made a contribution. I agree that so far as the Commissioners at a meeting are concerned and so far as they deal with an acquisition of the nature contemplated in Section 98, they can only make one kind of request, namely, for acquisition of land under the Land Acquisition Act, 1894. But this presupposes that the Commissioners were going to require the land for something which they would be doing upon it. In this particular case, it is not the Commissioners but the Government which was implementing a scheme and I am unable to treat the special resolution as a request under Section 98. But even if it were such a request, I do not think that there is, anything in Section 98 which compels the Government to acquire land only under the Land Acquisition Act, 1894. The request having been made in conformity with law, it is up to Government to acquire the land under any of the several provisions of law that are available to it, But the proper way of looking at the facts of this case would be to consider the land being requisitioned for a State scheme under the West Bengal Land (Requisition and Acquisition) Act of 1948, without having anything to do with any request by the Commissioners. It is true that the Commissioners cannot be said to have been totally dissociated with the scheme, because they were interested in it and were contributing towards its total expenditure. Apart from this, it was not a kind of thing that was being carried out in terms of Section 98 of the Bengal Municipal Act, 1932. As I have stated, it must be treated as a State requisition under the West Bengal Land (Requisition and Acquisition) Act of 1948 (Act II of 1948).
15. That being so, we next come to Section 3 of that Act, the relevant portions of which run as follows:
'3. Power to requisition.--(1) If in the opinion of the Provincial Government or any person authorised in this behalf by the Provincial Government it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage, the Provincial Government or the person so authorised, as the case may be, may, by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning: Provided that no land used for the purpose of religious worship shall be requisitioned under this section'.
16. Before I proceed further, I might consider the short history of the West Bengal Land (Requisition and Acquisition) Act of 1948, being West Bengal Act II of 1948, (hereafter referred to as 'the Act'). The original Act was passed by the West Bengal Legislature and it came into operation on 11-3-1948. It was to remain in force up to 31-3-1951. By Amending Act VII of 1951, the date up to which it was to remain in force was extended up to 31-3-1954 By Amending Act VIII of 1954, it was further extended to 31-3-1957. By Amending Act XII of 1957, there has been a further extension up to 31-3-1962. There is, therefore, no doubt that the Act is still in operation. The preamble of the Act lays down that it is an Act to provide for the requisition and speedy acquisition of land for certain purposes. Section 3 gives the power to requisition and the object is the maintaining of supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage, Power under this section can be exercised by the Provincial Government or by its delegate. There is no doubt that in the present case the Collector of Hooghly had proper authority under Section 3 of the Act. It is, however, one of the essential pie-conditions that the Provincial Government or the delegate must form an opinion that the land was necessary for the objects mentioned therein. It is not disputed that, since it is the delegate in this case who exercised the power, it is the delegate who must form the opinion. If it can be established that he did not form any opinion but merely acted under orders of the Government, then, indeed, the order would be invalid. It is for this purpose that Mr. Bose strongly relied on the letter disclosed by the respondents themselves whereby the Assistant Secretary was asking the delegate, the Collector of Hooghly, to take steps under Section 3(1) of the Act and it is said that this amounted to an order and that the Collector never came to form the opinion that circumstances existed for an order to be made in terms of Section 3(1) of the Act. Reference is made to the Supreme Court decision, Commissioner of Police, Bombay v. Gordhandas Bhanji, : 1SCR135 . In that case, the respondent wanted to build a cinema house in a part of greater Bombay. He obtained the necessary permission from the Commissioner of Police under Section 22 of the City of Bombay Police Act, 1902. Later on, the permission was suspended by the Commissioner and the respondent was told to await the orders of the Government. Shortly thereafter, the Commissioner informed the respondent that he had been directed by the Government to inform him that the permission to erect the cinema granted to him had been cancelled. It was held that under the Rules framed under Section 22 of the City of Bombay Police Act, the only person vested with the authority to grant or refuse a license for the erection of a building to be used for the purposes of public amusement was the Commissioner of Police, and that the order of cancellation was not an order by the Commissioner but merely an intimation by him of an order passed by another authority, namely, the Government of Bombay, which had no jurisdiction whatever to make such an order. The order was, accordingly, set aside.
17. It is argued by Mr. Bose that the facts of the present case are exactly on all fours, the Collector of Hooghly having acted upon an order of Government. In my opinion, the argument is not one of substance. In Gordhandas's case : 1SCR135 (supra), the letter of the Commissioner of Police itself showed that the order was not being made by him but by the Government of Bombay. In this case, it is true that the Assistant Secretary to the Government wrote to the Collector of Hooghly to take steps under the Act, but there is nothing to show that the Collector, upon the materials placed before him, did not himself arrive at that opinion. The various inter-departmental requests are part of the administrative machinery. The Collector of Hooghly is part of that machinery, and to a certain extent he did follow the order of Government. But in making an order under Section 3(1) of the Act, all that had to be done was for him to come to an opinion as to whether the land was required for the purposes mentioned in the Act. He had all the papers before him, and could have experienced no difficulty in arriving at the opinion that the land was required for a public purpose, and for the purposes as set out in Section 3(1) of the Act. This particular land was being acquired as a dumping depot in the sewerage scheme, and undoubtedly was for a service essential to the life of the community. The Collector in his order states that he came to be of that opinion, and I see no reason why I should come to the conclusion that he did not exercise his mind but acted mechanically under the orders of the Government. He is a responsible officer and we must infer that ho applied his mind and that his order indicates his menial condition truly. This point must be rejected.
18. I next come to the contention that the requisition violated the terms of the proviso to Section 3(1) of Act II of 1948. I have already set out the proviso which lays down, that no and used for the purposes of religious worship shall be requisitioned under Section 3 of the Act. It is stated that the kind in question was used for the purposes of religious worship and therefore was excluded from the scope of the Act by reason of the proviso to Section 3(1) this however is a question of fact which is strongly disputed before me. It has been pointed out that the land in question was a vacant plot except that it had on it a latrine, and further that it was surrounded by latrines belonging to neighbouring premises, and that it was a Blot of land wholly unsuitable for being used for religious purposes. The nature of the land, the fact that the dedication took place immediately after the survey-party had come to inspect the land prior to its requisition, do not tend to support the petitioner's case that the land was being used for purposes of religious worship. What is contemplated under the proviso is actual and not contemplated worship, and compulsory acquisition or requisition cannot be avoided by simply transferring the ownership to a deity. However, the facts being disputed, it is not possible for me in this jurisdiction to decide the point finally. On the materials before me it does not appear that the land in question was actually being used far the purposes of worship and consequently the proviso is not attracted. This disposes of points Nos. (i) and (iii). It remains for me to deal with point No. (ii) which has been exhaustively argued by Mr. Bose and appears to be a point of some complexity.
19. The way that it has been formulated is as follows: Compulsory acquisition or requisition of land, it is argued, necessarily involves and constitutes an invasion of the fundamental rights of a citizen under Article 19(1)(f) of the Constitution, namely, to acquire, hold or dispose of property. A law which invades this right can only be supported under Clause 5 of Article 19, if it is a reasonable restriction on the exercise of such right imposed in the interest of general public. It is argued that this Act II of 1948 is a Statute containing unreasonable restrictions and is therefore not saved under Article 19(5). The reason why it is said that the provisions of the statute are unreasonable may be summarised as follows :
(a) That the Act contains no provision whereby an opportunity is given to the person whose property is affected to prefer an objection. No such objection can either be preferred or heard.
(b) Section 3(1) of the Act confers arbitrary powers, not only upon Government, but to 'any person authorised in this behalf by the Provincial Government'. The power of delegation is unfettered and the delegate may be a person wholly unsuitable for discharging the onerous duties imposed by the Act. It is particularly pointed out that important questions will have to be decided such as, whether the land was used for the purpose of religious worship or not.
(c) While the arbitrary powers contained in Section 3(1) of the Act can be delegated to 'any person', there is no appeal against an order of requisition made under the Act. On the contrary, under Section 12 the jurisdiction of the Court is taken away and under Section 10 any person contravening any order made under the Act can be punished with imprisonment for a term which may extend to one year or with fine which may extend to Rs. 2000/- or with both.
20. There can be no doubt that the Act contains no provision for any objection to be preferred against an order of requisition. It is pointed out by the learned Advocate General that the object of the Act was to provide for requisition or speedy acquisition of land for public purposes. It is to be used in an emergency and the provisions are advisedly of a summary nature. In ordinary cases the provisions of the Land Acquisition Act may be invoked as well as several other statutes which are available for normal acquisition. The Act in question however is meant to be used in cases of emergency where the requisition or acquisition has to be effected without delay. There is a line of cases in England which is authority for the general proposition that in the absence of statutory provisions to the contrary, no man can be deprived of his property without having an opportunity of being heard. That this is so is well established by cases such as Cooper v. Wandsworth Board of Works (1863) 14 C. B. N. S. 180; Hopkins v. Smethwick Local Board of Health. (1890) 24 Q. B. D. 712, and J. D. Smith v. The Queen, (1878) 3 A. C. 614. In Cooper's case (supra) the Board of Works were empowered by Statute to pull down a house if the builder had neglected to give notice of his intention to the Board seven clays before beginning to dig or to lay the foundations. Whether any notice was given in this case was a matter of dispute, but it was admitted that Cooper had commenced digging out the foundations within five days of the day when he alleged that he had sent notice. The house had reached the second storey, when the Board, without notice to Cooper, sent their workmen to the site and razed the building to the ground. Cooper brought an action for trespass. The defence was that the Board had acted within its legal rights under Section 76, of the Metropolis Local Management Act, 1855, which did not provide for the issue of any notice before action was taken. Erle, C. J. said:
'The contention on behalf of the plaintiff has been, that although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the District Board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without having an opportunity of being heard..... .I think the power which is granted by the 76th section is subject to the qualification suggested ......... I think the Board ought to have given notice to the plaintiff, and to have allowed him to be heard'.
Willes, J., in the same case laid down, the law in these terms:
'I apprehend that a tribunal which is by law invested with power to affect the property of one of her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds and that that rule is of universal application, and founded upon the plainest principles of justice'.
21. The principle laid down in Cooper's case (1863) 14 CBNS 180 (supra) was approved by the Court of Appeal in Hopkins v. Smethwick Local Board of Health (1890) 24 QBD 712 (supra). Smith v. The Queen (1878) 3 AC 614 (supra) is a decision of the Privy Council. In that case the appellant had obtained from the Crown a lease of a plot of land in Queensland, Australia. The lease was granted under the Crown Lands Alienation Act, 1868, which, inter alia, provided that the lessee must live on the land continuously and bona fide during the term of the lease and if at any time it should be proved to the satisfaction of the Commissioner that he had not been doing so for a period of six months, it shall be lawful, for the Governor to declare the lease absolutely forfeited and vacated. During the currency of the lease the Commissioner reported that it had been proved to his satisfaction that the appellant had abandoned the plot not having resided there for a period of six months, and a few days later the Governor issued a proclamation declaring the lease to be absolutely forfeited and vacated. The appellant contended that he had not been heard. It was contended for the Crown that the Commissioner's decision was purely ministerial. The Judicial Committee said as follows:
'They decide the case upon broader grounds. It appears to them that the defendant has not been heard in the sense in which 'a hearing' bas been used in the cases which have been quoted in many others, and in the sense required by the elementary principles of natural justice.'
22. In W. B. S. K. Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee, : AIR1951Cal111 the West Bengal Land Development and Planning Act 1948 was challenged, inter alia, on the ground that it contains no provision for giving the owners of the land to be acquired compulsorily any right to object. The Court in Appeal presided by Harries, C. J., held that by rules framed under the Act a right of representation was given and therefore the Act could not be said to be unreasonable on that ground. It is therefore implicit in this decision that a person whose property was being compulsorily acquired was entitled to be heard and deprivation of that right would amount to unreasonable restriction.
23. On the question of the power given to Government under Section 3(1) of the Act to make a delegation, Mr. Bose has cited Khagendra Nath De v The District Magistrate of Dinajpore : AIR1951Cal3 . In this case it was held that Section 38 of the West Bengal Security Act 1950 which entitles Government to delegate its powers to any officer subordinate to it irrespective of whether that officer is fit to make such order is a procedure which is wholly unreasonable and therefore, ultra vires and not saved by Clause 5 of Article 19. Harries, C.J. said as follows:
'One of the powers conferred by the Act is the power of making an externment order and clearly by Section 38 of the Security Act Government can delegate that power to any officer Or authority subordinate to the State Government. Officers or authorities subordinate to the State Government may be officers or authorities of a high standing or they may be officers or authorities of a comparative lowly kind.. A Commissioner of Police in the city of Calcutta or a Superintendent of Police in the mofussil is, I think, clearly an officer or authority subordinate to the State Government and so is a Sub-Inspector.. A Habildar is a lowly and humble officer of Government. He certainly is a servant of Government and I do not think that the term 'officer' has any precise meaning ...... In any event it seems to me that Section 38 is framed in such a manner as would permit Government to delegate their powers to officers who, I think, would be wholly unfitted to be entrusted with the power of making any such orders'.
The nest case to be cited is a Supreme Court decision, Raghubir Singh v. Court of Wards, Ajmer, : 4SCR1049 . In that case the Court of Wards in its own discretion and on its subjective determination claimed to assume superintendence of the property of the landlord. Mahajan, J. said as follows;
'When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can on no construction of the word 'reasonable' be described as corning within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion on the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil court. Section 112 of Act 42 of 1950 cannot therefore be held valid as coming within the scope of Article 19(5) of the Constitution'.
24. In Jagannath Ramanuj Das v State of Orissa : 1SCR1046 it was held that Sections 38 and 39 of the Orissa Hindu Religious Endowments Act 1939, must be held to be void because the settling of a scheme in regard to religious institutions by an executive officer without the intervention of a judicial tribunal amounted to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. The provision of law struck down enabled the framing of a scheme not by a civil court or under its supervision but by the Commissioner who is a mere administrative or executive officer. There was also no provision for appeal against his order to the Court.
25. In Dwarka Prasad Laxmi Narain v State of Uttar Pradesh, : 1SCR803 , Mukherjea, J., said as follows ;
'The more formidable objection has been taken on behalf of the petitioners against Clause 4(3) of the Control Order which relates to the granting and refusing of licenses. The licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any license under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable ....... .... Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does. This safeguard, in our opinion, is hardly effective, for there is no higher authority prescribed in the Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer.....It was pointed out and with perfect propriety by Mr. Justice Mathews in the well known American case of Yick Wo v. Hopkins, 118 US 356, that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan-zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation, In our opinion, the provision of Clause 4 (3) of the U. P. Coal control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by Clause (6) of the Article.'
26. In Virendra v. State of Punjab, (S) : 1SCR308 , the validity of the Punjab Special Powers (Press) Act 1956 was questioned. Sections 2 and 3 of the Act laid down that the State Government or any authority so authorised in this behalf, if satisfied, that such action is necessary for the purposes of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order might make an order prohibiting the printing or publication of any document or bringing into Punjab any newspaper or publication. Section 3 (1) was struck down because there was no time limit for the operation of an order made thereunder, nor any provision made for any representation being made to the State Government. It was held that the absence of these safeguards in Section 3 clearly made its provisions unreasonable and hence ultra vires. In this case the power of delegation came under challenge. Das, C. J., said as follows :
'It is said that the sections give unfettered and uncontrolled discretion to the State Government or to the officer authorised by it in the exercise of the drastic powers given by the sections. We are referred to the observations by Mukherjea, J. in : 1SCR803 . That case does not seem to us to have any application to the facts of this case. In the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing, officer as was done in Dwarka Prasad's case. It is true that the State Government may delegate the power to any officer or person but the tact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation.'
27. It is not quite clear whether the learned Chief Justice meant to lay down that whenever the power of delegation was given to Government, however wide that power may be, there should be a presumption that Government was not likely to abuse its powers. The same argument was advanced in Khagendra's case, : AIR1951Cal3 (supra). What Harries, C. J., said is as follows :
'What Mr. Sen has contended is that we must not assume that Government would delegate their powers to some humble officer or authority who or which could not be regarded as fitted to exercise such powers. However this Court is not presuming that the Government would abuse its powers by appointing some one not fitted to make the order. If the Government by a notification had delegated its powers to the humblest class of officers subordinate to the Government it would not be abusing its authority. It would be exercising a right which the Act actually gave it. It would not be doing something to circumvent the Act. On the contrary it would be doing something which it was entitled to do under the Act.'
28. The next point urged is that the provisions of the Act are unreasonable because there is no right of appeal from the decision of the Collection I have already referred to the case of : 1SCR803 (supra) wherein it was held that the provisions of Clause 4 (3) of the U. P. Coal Control Order was bad, inter alia because there was no higher authority prescribed in the order who could examine the propriety of the reasons given by the Collector or revise or review the decision of the subordinate officer. In : 1SCR1046 , the provisions of the Orissa Hindu Religious Endowment Act (4 of 1939) came under challenge. In the Act as originally promulgated, the scheme was to be settled by the Commissioner appointed under the Act, but it could be challenged by a party interested within six months of the publication of such Scheme by filing a suit in a civil Court. In 1953, the Act was amended by deleting the provision for filing a suit, and the scheme once made was final. This came under challenge in the above-mentioned decision. The Supreme Court declared Sections 38 and 39 and the proviso to Section 46 of the Act as invalid. It was held that the settling of the scheme under Sections 38 and 39 in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounted to an unreasonable restriction upon the right of property of the superior of the religious institution, which is blended with his office. Comparing it with the Madras Act Mukherjea, J. said as follows:
'The sections of the Act to which serious objections have been taken are Sections 38, 39,46,47 and 49. Sections 38 and 39 relate to the framing of a scheme. A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides for the framing of a scheme not by a civil court or under its supervision but by the Commissioner who is a mere administrative or executive officer. There is also no provision for appeal against his order to the court. Under Section 58 of the Madras Act, although the scheme is to be framed by the Deputy Commissioner, an appeal lies against his order to the Commissioner in the first place. A party aggrieved by the order of the Commissioner again has a right of suit in the ordinary civil court with a further right of appeal to the High Court'.
29. After this decision, the Orissa Act was again modified and an appeal to the High Court was provided. The Act again came under challenge in the case of Sadasib Prakash v. State of Orissa, (S) : 1SCR43 . Jagannath Das, J. said as follows:
'In order to judge whether the provisions in the present Act operate by way of unreasonable restriction for constitutional purposes what is to be seen is whether the person affected gets a reasonable chances by presenting his entire case before the original tribunal which has to determine judicially the questions raised and whether he has a regular appeal to the ordinarily constituted Court or Courts to correct the errors, if any, of the tribunal of first instance.'
The Act was held to be intra vires. 30. In Tika Ramji v. State of Uttar Pradesh, (S) : 1SCR393 the U. P. Sugar Cane (Regulation of Supply and Purchase) Act (24 of 1953) came under challenge. The provisions of the Act and the Rules framed thereunder were upheld on the ground that the powers given to the Cane Commissioner were made subject to an appeal to the State Government at the instance of a party aggrieved. It was held that this was a sufficient safeguard against any arbitrary exercise of his powers by the Cane Commissioner.
31. Summarising the above decisions, we find that the right to hold property is guaranteed under the Constitution. Any reasonable restriction upon the right which is in the public interest would be valid. But the decisions lay down that there must be certain safeguards. Firstly, the person whose property is being taken away must have an opportunity of making representations. The person responsible for making the order must be a qualified person and he should not be a law unto himself and there should be an appeal. The power should not be naked and arbitrary. Such being the limitations, if they are to be applied to the impugned Act, then there is little doubt that it must be struck down. Firstly, there is no provision for representation. Secondly, the order may be made by a person whose qualifications are not mentioned. Thirdly, there is no right, of appeal. On the other hand, the power of the courts are taken away and any infringement of an order made under the Act is subject to penalties which may amount even to imprisonment. But the next question that arises in this case is as to whether the guarantee under Article 19 is at all applicable to the facts of this case, and whether it is available to the petitioner. This aspect of the case I have discussed in my decision in Atulya Kumar De v. Director of Procurement and Supply, : AIR1953Cal548 . The question is as to whether in the case of compulsory acquisition or requisition of property the guarantee under Article 19(1)(f) or (g) is at all available. The learned Advocate General has argued in this case, as he argued in Atulya Kumar De's case (supra), that in the case of compulsory acquisition or requisition, of property no such guarantee is available. The first case cited on this point is A. K. Gopalan v. State of Madras, : 1950CriLJ1383 . It was decided there that the Act infringed upon the rights of the petitioner of free travel. It was held however that once he lawfully lost his freedom of locomotion, the guarantee under Article 19 was no longer available. Das, J. (as he then was) said as follows :
'But suppose a person loses his property by reason of its having been compulsorily acquired under Article 31, he loses his right to hold that property and cannot complain that his fundamental right under Sub-clause (f) of Clause (f) of Article 19 has been infringed. It follows that the rights enumerated in Article 19(1) subsist while the citizen has a legal capacity to exercise them. If his capacity to exercise them is gone ........ by reason of a lawful compulsory acquisition with respect to the right in Sub-clause (f), he ceases to have those rights while his incapacity lasts'.
In Chiranjit Lal v. Union of India, : 1SCR869 the same learned Judge said :
'The fundamental rights said to have been infringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by Article 31. In Gopalan's case (ibid), I pointed out that the right to property guaranteed by Article 19(1)(f) would likewise continue until the owner was, under Article 31 deprived of such property by authority of law'.
32. In the second Sholapur case, Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., : 1SCR674 the Supreme Court revised its decision in the first Sholapur case. There was a marked difference between Mahajan, J. and Das, J. on the scope and applicability of Articles 19 and 31. But even Mahajan, J. was of opinion that so far as compulsory acquisition of property was concerned the matter was wholly covered by Article 31 and there was no question of any fundamental rights under Article 19 being infringed.
33. Faced with this well-established proposition of law, Mr. Bose has advanced an argument which requires careful consideration. He argues that in order to corny within the mischief of the principle adumbrated above, the property must be completely acquired by the State, that is to say, there must be a substantial total deprivation of property. His argument is somewhat as follows :
34. He says that if a man's property Is completely taken away, then it is reasonable to say that there is no further question of a constitutional guarantee of holding and possessing the property. But on the other hand, if out of the bundle of rights which constitute the right to property, only some are taken away and others remain, then the principle does not come into operation, because there is still some right of property remaining in the citizen which is amenable to the constitutional guarantee given by Article 19. The first case that he cites in support of his proposition is the case of State of Bombay v. Bhanji Munji, (S) AIR 3935 S.C. 41. That was a case under the Bombay Land Acquisition Act (33 of 1948 as amended by Act 39 of 1950).
The facts of that case were as follows :
35. The Governor of Bombay, acting through the Assistant Controller of Accommodation, issued orders under Section 6 (4) (a) of the Bombay Land Requisition Act 1948, in Civil Appeals Nos. 145 and 146 of 1952 and under Section 5(1) in Civil Appeal No. 147 of 1952, requisitioning the premises of the three respondents. In Civil Appeal No. 145 of 1952 the respondents were uncle and nephew. The uncle was the tenant and the nephew and his family lived with the uncle. In Civil Appeal No. 146 of 1952 the respondents were the owners, being a trust. There was also a licensee living in the premises. In Civil Appeal No. 147 of 1952, there was only one respondent, a private limited company which was occupying the premises as tenant. The orders of requisition were attacked on a number of grounds, particularly under Articles 19(1)(f) and 31(2) of the Constitution. Civil Appeal No. 146 of 1952 was dismissed, but the other two appeals were allowed and the petitions were dismissed, that is to say, the orders of requisition were upheld. The facts were these : In the year 1947, the Government of Bombay passed the Bombay Land Requisition Ordinance and invited applications for the allotment of vacancies from the general public. Under the law, landlords and tenants were required to give notice of vacancies as they arose. It was found in practice that such notice was not being given, and tenants and landlords were not co-operating. Government accordingly introduced a rule whereby anyone who gave information about the suppressed vacancies would be allotted the same, provided he genuinely needed accommodation. In the case under question the allottees belonged to that class. The orders of requisition being challenged, the High Court of Bombay held that to set apart a section of much needed vacancies for the use, of spies or informers as a reward for their services, whether their need was as great as other houseless persons or not, was not equitable, and must be struck down. This decision was upset by the Supreme Court, inter alia on the ground that the public purpose was to find accommodation for the homeless and as long as that purpose was fulfilled, the order of requisition could not be challenged, although it might be possible to challenge it on the ground of fraud, discrimination, bribery or corruption. It was argued, as has been argued in this case, that an order of requisition did not amount to total deprivation of property and therefore the guarantee under Article 19 applied. Bose, J. said as follows :
'In our opinion Article 19(1)(f) does not apply to them. In State of West Bengal v. Subodh Gopal BOSE. : 1SCR587 and : 1SCR674 , the majority of the Judges were agreed that Articles 19(1)(f) and 31 deal with different subjects and covered different fields. There was some disagreement about the nature and scope of the difference. But all were agreed that there was no over-lapping. We need not examine those differences here, because it is enough to say that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised.
In our opinion, this was decided in principle in : 1950CriLJ1383 , where it was held that the freedoms relating to the person of a citizen guaranteed by Article 19 assume the existence of a free citizen and can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total deprivation of property which is already held and enjoyed, one must turn to Article 31 to see how far that is justified.
It was argued as against this that this Rule can only apply when there is a total deprivation of property and Article 19(1)(f) cannot be excluded if there is the slightest vestige of a right on which the article can operate. This has also been answered in substance in : 1SCR674 . These Articles deal with substantial and substantive rights and not with illusory phantoms of title. When every form of enjoyment: which normally accompanies an interest in this kind of property is taken away leaving the mere husk of title, Article 19(1)(f) is not attracted. As was said by one of us in : 1SCR674 :
By substantial deprivation is meant the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that we must seek.
'In the present case, right to occupy the premises is gone as also the right to transfer, assign, let or sublet. What is left is but the mere husk of title in the leasehold interest; a forlorn hope that the force of this law will somehow expend itself before the lease runs out'.
The order of requisition was upheld.
36. Mr. Bose argues that under the Bombay Land Requisition Act, 1948, a requisition had a more drastic consequence than under the Bengal Act. Under the Bombay Act, not only was the right to occupy the premises gone but also the right to transfer, assign, let or sub-let. He points out that Appeal No. 146 of 1952, in which the respondent was the owner was dismissed, but it was successful as regards those appeals in which the respondents were tenants or occupiers. He says that in the case of tenants or occupiers, if the light to possess or the right to sub-let is gone then nothing remains except the forlorn hope that the requisition may come to an end before the expiry of the lease, provided, however, that there is a lease for a term. Acquisition is however a more drastic operation. Under the Bengal Act, possession is taken over as a result of requisition, but the owner is not totally deprived of dealing with the property. For example, he can transfer it subject to the requisition, mortgage it, or assign the rent. It is, therefore, argued that in this case there has not been a substantial total deprivation of right in property and therefore the provisions of Article 19 are still applicable.
37. Plausible as this argument seems, it has not been advanced for the first time. In the first Sholapur case, : 1SCR869 the question arose as to what the word 'property' as used in Article 31 of the Constitution means. Mukherejea J, said as follows.
'According to Mr. Sctalvad, if a share-holder is not deprived of the entirety of his rights which he is entitled to exercise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contemplated by Article 31(b). It is difficult, in my opinion, to accept the contention formulated in such broad terms. The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietary right.'
38. On the same point Das J., (as he then was) said as follows:
'In my judgment the question whether the Ordinance or the Act has deprived the share-holder of his 'property' must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his 'property'. In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left untouched illusory and practically valueless, then there can be no question that in effect and substance the 'property' of the share-holder has been taken away by the Ordinance or the Act.'
39. The learned Judge also points out that the word 'property' means either the bundle of rights which the owner has over or in respect of a thing tangible or intangible, or it means the thing itself over or in respect of which the owner may exercise these rights. That being the meaning of the word 'property' as used in Article 31, the next thing to consider is the co-relation between Article 31, and Article 19. Upon this point, Das J., (as he then was says as follows:
'The fundamental rights said to have been infringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by Article 31. In Gopalan's case, (Supra) I pointed out that the rights conferred by Article 19(1) to (e) and (g) would be available to the citizen until he was, under Article 21, deprived of his life or personal liberty according to procedure established by law sind that the fight to property guaranteed by Article 19(1)(f) would likewise continue until the owner was, under Article 31, deprived of such property by authority of law'.
40. There is some conflict of opinion on the question as to what the word 'acquisition' means in Article 31 or whether Sub-clauses (1) and (2) of Article 31 mean the same thing or not. But there is no conflict on the question as to whether in the case of a compulsory acquisition of property there is any scope for the application of Article 19. Although that is so, Mr. Bose has pointed out that in several decisions of the Supreme Court, these two Articles have been linked together in the case of acquisition and requisition. I shall deal with this point presently.
41. In Province of Bengal v. The Board of Trustees for the Improvement of Calcutta, 50 Cal WN 825: (AIR 1946 Cal 416), it has been laid down that the requisition of land means the acquisition of an interest in land for a lime or for an uncertain period, its the case may be. Therefore, when land is requisitioned, it necessarily denotes a process which is less complete or less exhaustive than an out and out acquisition of property, In the case of Bhanjij Munji, (S) : 1SCR777 (Supra) and Lila Vati Bai v. State of Bombay, (S) : 1SCR721 , the Supreme Court upheld the provisions of the Bombay Land Requisition Act, 1948. Mr. Bose, however, tries to distinguish these cases on the ground that in both the cases the requisition affected either the tenant or the lessee and therefore, there was a substantial total deprivation of property, because a tenant or a lessee, deprived of the right of possession, has nothing left, while according to Mr. Bose, the case of an owner would be different. He has drawn my attention to the Supreme Court decision, Commissioner, Hindu Religious Endowment, Madras v. Sri L. T. Swami of Sri Shirur Mutt, : 1SCR1005 , where Mukherjea, J. held that the word 'property' as used in Article 19(1)(f) of the Constitution, should be given a liberal and wide connotation and there is no reason why it should not be extended to those well-recognised types of interests which have the insignia or characteristic or proprietary right. In that particular case, the learned Judge was dealing with the interest of a Mahunt of an endowment. It was pointed out by Mukherjea, J. that the expression of opinion by Shastri, J. in : 1SCR587 , to the effect that Article 19(1)(f) is concerned with only abstract right of property and not concrete property right, was not acceptable.
42. I shall now refer to some of the cases, where, according to Mr. Bose, both Article 19 and Article 81 are said to have been infringed. The first case is Wazir. Chand v. The State of Himachal Pradesh, : 1954CriLJ1029 . In that case, the police of India seized certain goods in possession of the petitioner in India at the instance of the police of Jammu and Kashmir. The seizure was not under any authority of law, inasmuch as no order was obtained from any Magistrate. It was held that the seizure was contrary to law and was an infringement of the petitioner's fundamental rights both under Article 19 and Article 31 of the Constitution. It will appear, however, that this was not a case either of acquisition or requisition of immoveable property. Therefore it presumably came under Article 31(1) which lays down that no person shall be deprived of his property save by authority of law. The case, therefore, does not throw much light on the question, we are considering here.
43. The next case cited is Saghir Ahamad v. State of Uttar Pradesh, : 1SCR707 In that case, the appellants were carrying on the business of plying motor vehicles as stage carriages on hire, in the State of Uttar Pradesh. The State tried to nationalise all bus services and to create a State monopoly therein. The first question arose as to whether, taken as a restriction, it was reasonable under Clause (6) of Article 19. In other words, whether a total extinction could be considered as a reasonable restriction. On this point, however, the Supreme Court did not give a final decision. The other point that arose was us to whether a mere deprivation of the petitioner's right to run buses on the road was sufficient to attract the operation, of Article 31(2) of the Constitution. The State sought assistance of the Legislature and the U. P. Road Transport Act (Act II of 1951) was passed. Thus it could not be said that deprivation of possession was not in accordance with law. It was held however that it did come under the scope of Article 31(2) of the Constitution, and the fact that the buses belonging to the appellants had not been acquired by the Government was not material. The property in a business might be both tangible and intangible. Under the Statute the Government might not deprive the appellants of their buses or any other tangible property, but they were depriving them of the business of running buses on hire on public roads. The Act was declared to be unconstitutional, because at the time that Act II of 1951 came into operation the State legislature had no power to enact it. Subsequently the Constitution was amended. In any event the particular point that we are considering did not come up for decision, and a decision was not obtained, because it was not finally decided as to whether Article 19 applied or not. In (S) : 1SCR393 , the U. P. Sugar Factory Control (Amendment) Act, 1952 and certain other notifications were challenged. It was held that the powers given under them were not absolute or unguided and therefore did not fall within the mischief of Article 19(1) and (g). It was further held that the impugned Act and the notifications were not violative of Article 81, as none of the petitioners was deprived of his property save by authority of law. It will thus be seen that the case did not deal with the point which arises for determination herein.
44. The next case cited is the State of Rajas-than v. Nath Mal, : 1SCR982 . In that case, the constitutional validity of the Rajasthan Food Grain Control Order, 1949 was considered. Clause (25) of that Order dealt with the power of the Com-missioner, etc., to freeze any stock of food grain held by any person. It further provided that such stocks shall also be liable to be requisitioned or disposed of under the orders of authority, at the rates fixed for the purpose of Government procurement. The last portion of the Clause to the effect that such stocks shall also be liable to be requisitioned or disposed of under order of authority at the rate fixed for the purpose of Government procurement was declared invalid on the ground that it violated Article 19(1)(g) as well as Article 31(2) of the Constitution. Mr. Boss argues that the requisition or acquisition of stock of food grain must necessarily amount to total deprivation and yet Article 19(1)(g) was said to be applicable. The only thing that I can say is that no argument had been advanced about the mutual exclusiveness of the two Articles and that is why no particular attention was given to that aspect of the matter.
45. It seems to me that the result of the decisions abovementioned can be stated to be as follows: Where property is acquired out and out, there is of course a complete deprivation of property. Where property is acquired by the State, then it must be held that Article 31 applies and not Article 19. Article 19 applies when the citizen has a right to property. Once it is compulsorily acquired, the right to property is gone and there can be no question of invoking the fundamental right to hold property which is guaranteed by the Constitution. A much more difficult position accrues where it is not a case of acquisition but a case of requisition. In such cases there is only a partial acquisition of property & consequently what the State acquires is only some of the bundle of rights which go to constitute the 'property' of the citizen. The question is as whether in such circumstances Article 19 has any application. The underlying idea of excluding Article 19 in the case of acquisition is that in the case of acquisition no right to property is outstanding in the citizen, & therefore there remains nothing to protect. But, if any right is Outstanding, then logically speaking it should require protection. On this point the consensus of opinion seems to be that the matter should be looked at from a practical point of view. It is true that the word 'property' means a bundle of rights. But it necessarily includes rights which are essential and others which are insignificant, of no moment that is why the phrase 'substantial deprivation' has been used. If what is acquired by the State constitutes the more important indicia of title that is to say, the more important rights that were vested in the citizen, leaving only insignificant rights outstanding, then the above principle becomes applicable. In other words, even though there has been no total deprivation but substantial deprivation, the principle will Del applicable. Therefore the whole question for determination in this case is as to whether in the facts and circumstances of this case, there has been a substantial deprivation of property. Mr. Bose argued that in each case there must not only be substantial deprivation but also total and substantial deprivation. To that extent the authorities do not support him. Coming to the facts of this case, we find that the petitioners are the owners of a certain piece of land, more or less vacant. It is being requisitioned by the State for the purposes of being used as a dumping ground of the municipality in connection with a sewerage scheme. Firstly, the possession is gone for an indefinite period. Secondly, the Act itself contemplates that a requisition can be followed by an acquisition. In the facts and circumstances of this case, there is very little doubt that it will be followed by acquisition. Then what remains in the owner? It is suggested that the petitioners can assign the land or mortgage the same. In my view, this is an argument of desperation, because in view of the use to which the land will be put, and the restrictions put by statute there is very little likelihood of such a transaction actually taking place. In my opinion, upon the facts of this case, I must come to the conclusion that there has been a substantial deprivation of property, and therefore Article 31 applies and not Article 19. In order, however, to test the constitutionality of Section 3, I realise that it is not sufficient to deal with the facts of this particular case and the question for determination would still be whether apart from the facts in this particular case, Section 3 and the exercise of the powders of requisition given under it could attract the provisions of Article 19. Because if it is capable of doing so, it must, for reasons stated above, be declared as bad. I must confess that the matter is not free from doubt. But giving the question my anxious consideration I have come to the conclusion that the compulsory requisition of any land under Section 3 of the Act which may be followed by compulsory acquisition amounts to a substantial, deprivation of the rights to property. Looking at Section 3 of the Act, we find that the requisition of land under it comes into operation if the State Government thinks that the requisition of land was necessary for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage. These are objects which indicate permanent user. At least, in most cases it means permanent deprivation of property, or at least of the right to possession. In fact, reading Sections 3 and 4 side by side, it is obvious that in most cases the act of requisitioning is only the preliminary step to acquisition. In the preamble it has been stated that the expediency is to provide for the 'the requisition and speedy acquisition of land'. Section 6 also indicates that where requisition is not followed by acquisition, the land will be released. In both acquisition and requisition, the possession is lost. After all, in the case of ownership of land the most important thing is possession. If possession is taken away from the owner, temporarily at first but with a possibility of it becoming permanent and for an indefinite time what is it but a substantial deprivation of property? In my view, therefore, requisition under the impugned Act amounts to substantial deprivation of property, and therefore what applies is Article 31 and not Article 19. So far as Article 31 is concerned, the only question is about the right of compensation. The question of unreasonable restriction does not come into the picture. It is not of course argued that there is any question of the particular Statute not providing for compensation.
46. I, therefore, hold that the provisions contained in Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948) are intra vires and valid.
47. Apart from the legality of the Act, two technical objections have been raised. The first objection is that the notice that was served upon the petitioners was issued and served only on the petitioner No. 2 and not upon the real owner, the petitioner No. 1, the deity Sri Sri Lakshmi Janardan Jew, and further that the copy that was served was signed by the Additional Collector and not endorsed by the Collector, who issued the order.
48. With regard to the notice served not having been endorsed by the Collector, it is admitted that the rules require that there should be such endorsement. Although this point has not been expressly dealt with in the affidavits the learned Advocate General has drawn my attention to the case of (S) : 1SCR721 . That was a case under the Bombay Land Requisition Act. It was held that the order requisitioning the premises was not in the nature of an order in a judicial proceeding, between the Government on the one hand and the parties on the other. In that case, an order was made against a person who was dead. It was however served on the widow of the tenant of the premises, who preferred objection. It was held that since it was not a judicial or quasi-judicial proceeding, the requisition proceeding could not be held to be void, as the petitioner had actually received notice, and while the name of the dead man should be considered as erased from the order, that would not affect the validity of the requisition. Of course, it depended to certain extent upon the wordings of 'Section 13(2) of the Bombay Act, but nevertheless it explains the nature of an order made under the requisitioning Acts. In this particular case, the petitioner No. 2 did get notice and did prefer objections. In fact, in the original petition filed before me, the point itself was not taken but was added later on by amendment. Howover, since notice has to be served on the petitioner No. 1 I think it would be better if a properly signed notice is served upon the petitioner No. 2 as well.
49. The second point, however, seems to be a matter of substance. The owner of the requisitioned property, whatever be the motive of the transfer effected by petitioner No. 2 to petitioner No. 1, is the deity. I cannot see how the requisition proceedings, can proceed without notice to the deity. As a matter of fact, no serious attempt was made to argue before me that the proceedings could proceed without notice upon the deity. The learned Advocate General did argue that under the Act there was no provision for service of notice. But then, the rules require that notice shall be served upon all parties interested. In this case the party primarily interested is the deity and therefore the requisition proceeding should not be allowed to continue without serving notice upon the deity.
50. The result is that this application in so far as it challenges the validity of the order made under Section 3 of the Act and in so far as it challenges Section 3, of the Act itself, fails, and to that extent the Rule must be discharged. But it must be made absolute in part and a writ in the nature of mandamus issued and the respondents must be restrained from proceeding further with the requisition proceeding without serving the order and/or notice upon the petitioner No. 1, the deity, Sri Sri Lakshmi Janardan Jew. A properly signed notice should be served upon petitioner No. 2 as well. The notices or orders should be served in accordance with law and then the requisition proceeding will proceed in accordance with the Act and the rules made thereunder.
51. There will be no order as to costs.