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Gouripada Bandopadhya and ors. Vs. S. Banerjee, Secy. to the Govt. of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 12 of 1952 (Mandamus)
Judge
Reported inAIR1953Cal704
ActsWest Bengal Land Development and Planning Act, 1948 - Sections 2 and 4; ;Constitution of India - Articles 13(1), 19(1) and 19(5)
AppellantGouripada Bandopadhya and ors.
RespondentS. Banerjee, Secy. to the Govt. of West Bengal and anr.
Appellant AdvocateArun Kumar Dutt, Adv.
Respondent AdvocateJ. Majumdar, Asst. Govt. Pleader and ;Pramatha Kumar Chakravarty, Advs.
DispositionAppeal dismissed
Cases ReferredWest Bengal Settlement Kannungoe Cooperative Credit Society v. Mrs. Bella Banerjee
Excerpt:
- .....of agriculture, forestry, fisheries and industries.7. section 4 of the act empowers the state government if it is satisfied that any area specified in the notification is needed or likely to be needed for any public purpose to declare by notification in the official gazette a certain area to be a notified area. section 4 (2) confers on the prescribed authority to do certain acts for the purpose of facilitating a survey of the land comprised in that notified area. section 5 of the act provides that the state government may authorise the prescribed authority or if it thinks fit, any local authority or a company to prepare a development scheme in respect of the notified area.8. rule 5 (2) of the rules framed under section 14 of the act requires that the committee appointed under.....
Judgment:

G.N. Das, J.

1. This appeal is directed against the judgment of Bose J. dated 26-11-1951.

2. The facts are that a block of land was directed by a notification under section 4, West Bengal Land Development and Planning Act, 1948, to be a notified area in terms of that Section. The notification was duly published on 21-12-1950. Thereafter on 23-12-1950 a declaration was made under Section 6 of the Act read with Section 7 thereof whereby a, plot of land belonging to the appellant and lying within the notified area was declared to be needed for the purpose of settling immigrants from East Pakisthan. Before possession was taken by the Collector the appellant filed an application under Article 226 of the Constitution praying for the issue of a writ of mandamus directing the respondents not to proceed further in the matter. Bose J. issued rule nisi on 21-2-1951.

3. On a perusal of the affidavits filed in this case on behalf of the parties Bose J. discharged the Rule by his order dated 26-11-1951. It is against this order that the present appeal has been taken.

4. Mr. Butt who has appeared in support of the appeal ultimately pressed the following contentions ;

5. He contended that the notification under section 4 of the Act was an unreasonable restriction on the appellant's fundamental right to acquire, hold and dispose of his property under Article 19(1)(f) of the Constitution. In the second place he contended that the notification under section 4 was invalid being in contravention of Article 31(1) of the Constitution. In the third place he contended that notification under section 4 is not in compliance with the spirit of Section 4.

6. The West Bengal Land Development and Planning Act (Act 21 of 1948) was intended to make provision for the acquisition and development of land for purposes mentioned in the Act. Section 2 (d) of the Act defines the expression 'public purpose' to include (i) the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control, (ii) the establishment of towns, model villages and agricultural colonies, (iii) the creation of better living conditions in urban and rural areas, (iv) the improvement and development of agriculture, forestry, fisheries and industries.

7. Section 4 of the Act empowers the State Government if it is satisfied that any area specified in the notification is needed or likely to be needed for any public purpose to declare by notification in the official gazette a certain area to be a notified area. Section 4 (2) confers on the prescribed authority to do certain acts for the purpose of facilitating a survey of the land comprised in that notified area. Section 5 of the Act provides that the State Government may authorise the prescribed authority or if it thinks fit, any local authority or a Company to prepare a development scheme in respect of the notified area.

8. Rule 5 (2) of the Rules framed under Section 14 of the Act requires that the Committee appointed under Rule 3 (2) will cause a local enquiry to be made either by the Collector or by an officer authorised by the Collector, after giving all persons interested an opportunity of making representations, if any, against the scheme. Section 5 (2) read with the Rules makes provision for the framing of the Scheme and after the Scheme is framed for sanction thereof with or without modification by the State Government. Section 6 Of the Act then provides that when the State Government has sanctioned a development scheme and is satisfied that any land within a notified area is needed for execution of the development scheme, a declaration to the effect that such land is needed for public purpose, shall, unless already made in pursuance of Section 7, be made by the State Government. Section 7 of the Act provides that in case of urgency if the State Government is satisfied that the preparation of a development scheme is likely to be delayed, the State Government may at any time make a declaration under Section 6 in respect of such notified area or any part thereof, though no development scheme has been prepared or sanctioned by the State Government.

9. Section 6 (2) provides that a declaration made in terms of Section 6 shall be published in the official gazette and shall state certain of the particulars which are intended to apprise people alfected by the scheme of the details of the development scheme.

10. Section 3 of the Act provides that declaration under Section 6 shall be conclusive evidence of the public purpose mentioned in the declaration. The Section then provides that after making the declaration under Section 6, the State Government may acquire the land and thereupon the provisions of the Land Acquisition Act 1894 shall, as far as may be, apply. Proviso (a) to Section 8 provides that if the State Government so directs, the Collector may, at any time, after a declaration made under Section 6 take possession in accordance with the rules and thereupon the land, etc. of which possession has been taken, shall vest absolutely in the Government free from all incumbrances. Rule 8 of the rules framed under Section 14 of the Act (provides?) that the Collector may cause public notice to be given before taking possession. There is an explanation appended to 'the proviso which lays down that for the purposes of the clause, the decision of the State Government as to whether the land is or is not waste or arable shall be final. Proviso (b) to Section 8 provides that the value of the land as provided in Section 23 (1) (a), Land Acquisition Act, shall be deemed to be the market value on the date of publication of the notification under Section 4 (1) for the notified area subject to the condition that if such market value of the land on 31-12-194G, on the footing that the land was in the same condition on 31-12-1942, was in excess of the market value determined under Section 23 (a), Land Acquisition Act, no account shall be taken of the (excess.

The validity of certain provisions of this Act was called in question in the case of -- 'West Bengal Settlement Kanungoe Co-operative Credit Society v. Mrs. Bella Banerjee', : AIR1951Cal111 (A). We are informed that that decision is now under appeal to the Supreme Court. The Bench was of opinion that proviso (b) to Section 8 of the Act in so far as it fixes the compensation payable as the value of the land in its present condition on 31-13-1946 offends Article 31(2) of the Constitution and is voici; but as the provision is severable, the other part of the proviso to Section 8 is not hit by the Constitution. The Bench also decided that the existence or otherwise of the public purpose specified in the declaration is justiciable. The Bench also held that the provision contained in Section 8 which made the declaration conclusive was invalid. The Bench also decided that the Act did not suffer from any invalidity on the ground of absence of personal notice, because in the opinion of the Bench the provisions of Rule 5(2) of the Rules framed under the Act, entitle the owner to make representations against the details of the scheme or against the necessity of the acquisition. The Bench also decided that the decision that the land is waste or arable is not justiciable.

11. For the purposes of this appeal the learned Advocates proceeded on the footing that the decision of the Bench is binding on us and is correct. In the light of the principles discussed above we shall deal with the three contentions raised by Mr. Dutt.

12. The first contention of Mr. Dutt is that the notification under Section 4 is invalid as it interferes with the fundamental right of the appellant under Article 19(1)(f) of the Constitution which confers on every citizen the right to acquire, hold and dispose of his property. Conceding that Article 19(1)(f) of the Constitution does apply the question still remains whether the impugned piece of legislation can be said to be valid in view of the provisions contained in Clauses (5) of Article 19 which saves legislations which are enacted in the interest of the general public and contain reasonable restrictions in the exercise of the right conferred by Article 19(1)(f). In view of the decision in the case of -- 'West Bengal Settlement Kannungoe Cooperative Credit Society v. Mrs. Bella Banerjee', (A), already cited, the existence or otherwise of a public purpose is justiciable and the award of compensation on the footing of the market value as on 31-12-1948, is invalid. As such, the owner whose land is sought to be acquired under the Act is entitled to question whether the public purpose as recited in the declaration exists or not. He is also entitled to just and reasonable compensation in respect of his land. As the land is required for public purpose as defined in the Act it follows that the land is acquired in the interest of the general public. The payment of just and reasonable compensation amply safeguards the rights of the owner whose land is acquired. Compulsory acquisition of land may be necessary in the larger interest of the general public, and cannot per se be regarded as an unreasonable restriction. It cannot be said that even though the land is needed in the interest of general public and fair compensation is paid to the owner who is entitled to prefer objection to the scheme and the intended acquisition the notification u/s 4 should be per se regarded as an unreasonable restriction. I may point out that in the case already cited, the provisions of rule 5(2) provided for ample notice to the owners or persons interested to raise objection not merely to the details of the scheme but also to the acquisition itself. There is, therefore, no basis for the contention that the impugned legislation contains unreasonable restriction on the fundamental right of a citizen to acquire, hold and dispose of his property. In my opinion legislation is saved by cl. (5) of Article 19 conceding that Article 19(1)(f) of the Constitution is attracted in such cases.

13. The second contention of Mr. Dutt is based on Article 31(1) of the Constitution. Article 31(1) deals generally with expropriation of a person's property. Article 31(2) deals specifically with acquisition for a public purpose and contemplates cases like the present. In cases where land is acquired for a public purpose the Constitution provides for payment of compensation which obviously means just and fair compensation. If such compensation is paid, the Constitution authorises acquisition for a public purpose and a legislation intended to that end cannot, in my opinion, be said to offend Article 31(1) of the Constitution. There is, therefore, no force in the second contention raised by Mr. Dutt.

14. Tne 3rd contention of Mr. Dutt relates to the invalidity of the notification under Section 4 of the Act. The notification, is attacked on a two-fold ground. In the first place it is contended that although the Section speaks of the State Government, the notification recites 'Whereas it appears to the Governor '. The executive authority of the state Government is vested in the Governor, and therefore the use of the word 'Governor' in the notification means 'the State Government'. The fact that the words 'it appears to the Governor' occur in the notification is immaterial. The words 'it appears to the Governor', in my opinion, have the same connotation as the words in Section 4 which speaks of the satisfaction of the State Government.

It is also pointed out that the notification is defective because it recites only one of the purposes mentioned in Section 2(d)(i) viz., the settlement of immigrants. I do not understand the force of this contention. I have already quoted the 4 clauses of Section 2(d). The different clauses provided for different states of facts. Mr. Dutt seems to suggest that the notification ought to mention all these clauses. In my opinion such a statement would confuse the issues. The notification should specify the particular public purpose for which the acquisition is necessary under the Act so that the person interested may prefer objections under Rule 5(2). In my opinion the notification which was issued in this case is consistent with the terms of the Act and cannot be said to be invalid. It does not accord with the true spirit of the Act. The third contention raised by Mr. Dutt must also be negatived.

15. Nor can it be said that the notification contemplated by the Act is opposed to natural justice. The Act provides for a three-fold notification. First, a notification under Section 4, a notification of the declaration under Section 6 and a further notification before possession is taken. In my opinion the different notifications and the Rules framed under the Act amply safeguard the rights of the owner and give the persons interested sufficient opportunity of objecting either to the scheme or to the intended acquisition. It is true that the Act does not contain a provision similar to Section 5A, Land Acquisition Act, but the whole object of the present legislation is to acquire property tor public purposes and speedily in certain contingencies. Such a purpose will be frustrated if personal notices are required to be served on the owners and persons interested who may be various persons and whose whereabouts may be unknown at the time when the notification under Section 4 is issued. There is nothing in the Act which makes it opposed to the principles of natural justice.

16. The result is that this appeal fails and is dismissed with cost --- hearing-fee being assessed at three gold mohurs.

Debabrata Mookerjee, J.

17. I agree.


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