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Sm. Kamala Bala Dassi and ors. Vs. State of West Bengal Through the Secy. Land and Land Revenue and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3560 of 1958
Judge
Reported inAIR1962Cal269,65CWN868
ActsWest Bengal Land Requisition and Acquisition Act, 1948 - Section 3; ;Constitution of India - Articles 19(1), 31, 31(1), 31(2) and 31(2A); ;Constitution of India (Fourth Amendment) Act, 1955; ;West Bengal Land Requisition and Acquisition Rules, 1948 - Rule 3(1)
AppellantSm. Kamala Bala Dassi and ors.
RespondentState of West Bengal Through the Secy. Land and Land Revenue and anr.
Appellant AdvocateAnil Kumar Sen, Adv.
Respondent AdvocateJ. Majumdar and ;Pradyot Kumar Banerjee, Advs.
Cases ReferredAbanindra Kumar Maity v. A. K. Biswas
Excerpt:
- .....the order of requisition on several grounds. themain ground put forward is that section 3 of the westbengal land requisition and acquisition act, 1948(w. b. act ii of 1948) is ultra vires inasmuch asit violates the fundamental rights of the petitioners under article 19(1)(f) of the constitution, namely, the right to acquire, hold and dispose of property, and that the provisions of the west bengal act constitute an unreasonable restriction on such fundamental rights inasmuch as (i) no opportunity is afforded by any provision in the act to the person whose property is sought to be requisitioned or acquired to make representations against the order made under the act, (ii) the power of requisition conferred by the act is an arbitrary power on the exercise of which there is no check or.....
Judgment:
ORDER

H.K. Bose, J.

1. This is an application under Article 226 of the Constitution for an appropriate Writ for quashing or cancellation of an order of requisition made under the provisions of the West Bengal Land Requisition and Acquisition Act 1948.

2. The petitioners are the owners of several Cadastral Survey plots of Mouza Kalna in police station Mirpur in the district of Burdwan. The proceedings under the West Bengal Act appear to have been taken in connection with a scheme to construct a new Sub-Divisional hospital at Kalna in collaboration with the Kalna Municipality. It is alleged in the petition that three of the petitioners, namely petitioners 2, 7 and 11, received a notice of requisition purported to have been issued under Section 3 of the West Bengal Land Requisition and Acquisition Act, 1948 on or about the 20th September, 1958. But such notice purports to have been issued by the Land Acquisition Collector, Burdwan although the order of requisition appears to have been made by the Collector of Burdwan and further that this notice does hot bear any date or any signature of the authority issuing the notice excepting a facsimile signature of the Land Acquisition Collector, Burdwan. It Is alleged that other petitioner did not receive any notice at all.

3. The petitioners have challenged the validityof the order of requisition on several grounds. Themain ground put forward is that Section 3 of the WestBengal Land Requisition and Acquisition Act, 1948(W. B. Act II of 1948) is ultra vires inasmuch asit violates the fundamental rights of the petitioners under Article 19(1)(f) of the Constitution, namely, the right to acquire, hold and dispose of property, and that the provisions of the West Bengal Act constitute an unreasonable restriction on such fundamental rights inasmuch as (i) no opportunity is afforded by any provision in the Act to the person whose property is sought to be requisitioned or acquired to make representations against the order made under the Act, (ii) the power of requisition conferred by the Act is an arbitrary power on the exercise of which there is no check or limitation imposed, (iii) the power of delegation conferred on the State Government by Section 3 of the West Bengal Act is unfettered and such a delegation can be made in favour of 'any person', (iv) there is no provision for appeal against the order made under the Act (v) the right to have recourse to a Court of law against any order or decision, made in exercise of any power conferred by or under the Act is expressly barred (Sections 11 and 12 of the Act), but at the same time there is provision for drastic punishment for contravention of any order made under the Act (Section 10 of the Act).

4. It may be note'd at the very outset that the life of this West Bengal Act II of 1948 which was originally passed on the 11th March, 1948 as a temporary Act was extended from time to time by various amending Acts and the last of such extension was made by West Bengal Act XII of 1957.

5. Now it appears that the question of the vires of this very Act came up for consideration before D.N. Sinha, J. in the case of Sri Luxmi Janardan v. State of West Bengal : AIR1959Cal402 and the learned Judge was inclined to hold that the provisions of the impugned Act constitute an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(f) of the Constitution. But in view of several decisions of the Supreme Court referred to in his judgment, the learned Judge came to the conclusion that as the impugned statute was a legislation which came within the purview of Article 31 of the Constitution, there was no scope for the applicability of Article 19 of the Constitution and the question whether the provisions of the Act constitute an unreasonable restriction on the fundamental right to acquire, hold and dispose of property was not a relevant consideration at all. After referring to the relevant decisions of the Supreme Court on the point, the learned Judge proceeded to observe as follows: (page 125 (of Cal WN): (at p. 412 of AIR):

'It seems to me that the result of the decision 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 acquisi-tion of property and consequently what the State acquires is only some of the bundle of rights which go to constitute the 'property' of the citizen.'

6. The final conclusion which the learned Judge recorded on this point is to be found at page 126 of the report (Cal WN): (at p. 412 of AIR) and is as follows:

'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.''

7. So this was the ground on which the learned Judge upheld the validity of the Act and the order of requisition which was. challenged before him. This decision was given on the 25th August, 1958.

8. The attention of the Court has however, been drawn to a recent case of the Supreme Court reported in Kochuni v. States of Madras and Kerala : [1960]3SCR887 which has held by a majority judgment that after the Constitution (Fourth Amendment) Act, 1955, Article 31(1) and Article 31(2) cannot be held as dealing with the same subject-matter but they deal with two different subjects: Article 31 (2) and (2A) with acquisition and requisition. Article 31*(1) with deprivation of property by authority of law and that the decision of the Supreme Court in State of Bombay v. Bhanji Munji : [1955]1SCR777 , no longer holds the field after the Constitution (Fourth Amendment) Act, 1955. It has been further held by the Supreme Court in this case that the law depriving a person of his property will be invalid if it infringes Article 19(1)(f) unless it imposes a reasonable restriction on the person's fundamental rights. The State can however establish that a law though it purports to deprive a person of his fundamental right, in certain circumstances., amounts to a reasonable restriction within the meaning of Article 19(5).

9. It has been argued relying on this decision that the ground on which Sinha, J. refused to declare the West Bengal Act II of 1948 as ultra vires has been found by the Supreme Court to be an unsustainable ground. It appears to me that this argument on behalf bf the petitioners is based on a misconception of the true scope and implications of the judgment of the Supreme Court. In Kochuni's case, : [1960]3SCR887 the Supreme Court had to consider the question of the validity of The Madras Marurnakkathayam (Removal of Doubts) Act, 1955 (Act No. XXXII of 1955) which in the guise of dispelling 'doubts abolished a class of sthanams and converted them into Tarwad properties and deprived the sthanees of their right to their property. The Act had nothing to do with requisition or acquisition of property as contemplated in Article 31(2) of the Constitution. Paragraph 8 of the judgment (page 1084) makes it clear that the validity of the Madras Act was challenged on three points, namely, (i) the impugned Act is constitutionally void because it offends against Article 14 of the Constitution (ii) it is also void because it deprives thesthanee of his fundamental right to hold and dispose of property and thereby offends against Article 19(1)(f) of the Constitution and is not saved by Clause 5 of Article 19 and (iii) the impugned Act is further bad because it has been made by the legislature not in exercise of its legislative power but in exercise of judicial power. In answer to the second point raised by the learned Attorney-General challenging the validity of the Act, the learned counsel for the respondent argued that as the impugned Act purported to deprive the petitioners of his sihanams properties by authority of law within the meaning of Article 31(1) of the Constitution and as he was legally deprived of his property, Article 19(1)(f) of the Constitution had no application inasmuch as Article 19(1)(f) presupposed the existence of the petitioners' title to the sthanams and its properties and as he was deprived of his title therein by the impugned Act he could no longer rely upon his fundamental right under Article 19(1)(f). In paragraphs 20 and 21 of the Judgment the Supreme Court has made it abundantly clear as to what was the true nature and scope of the argument before them with regard to the second point raised by the learned Attorney General challenging the validity of the Madras Act. Then in paragraph 25 of the Judgment after dealing with Gopalan v. State of Madras : 1950CriLJ1383 in some detail Subba Rao, J. who delivered the judgment of the Supreme Court held that by reason of the Fourth Amendment Act 1955, Article 31(1) of the Constitution ceased to be part of the guarantee against acquisition or requisition of property without the authority of law and must therefore be construed on its own terms; and in paragraph 27 it was pointed out that the decision in Bhanji Munji's case, (S) : [1955]1SCR777 on which reliance was placed by the 1earned Counsel for the respondent in support of their contention that Article 31(1) excluded the operation of Article 19(1) was one which was based on the pre-existing law before the Constitution (Fourth. Amendment) Act 1955 but in view of the amendment of 1955 the position had been considerably altered and Article 31(1) and Article 31(2) dealt with different subjects, but Article 31(1) and Article 19(1)(f) must be held to be dealing with the same subject and so there was no question now of Article 31(1) excluding the operation of Article 19(1)(f). It was held further, in this context that the Supreme Court made the observation that the decision in Bhanji Munji's case (S) : [1955]1SCR777 no longer holds the field after the Constitution (Fourth Amendment) Act, 1955. Therefore, it is abundantly clear that all that the Supreme Court has decided in Kochuni's case, : [1960]3SCR887 is that after the Constitution (Fourth Amendment) Act, 1955 Article 31(1) of the Constitution cannot be construed as excluding the operation of Article 19(1)(f) of the Constitution. But it is no authority for the proposition that Article 31(2) of the Constitution does not exclude the applicability of Article 19(1)(f) of the Constitution.

10. The learned Advocate for the respondents, has drawn the attention of the Court to a subsequent decision of the Supreme Court reported in Barkya Thakur v. State of Bombay : [1961]1SCR128 where the learned Chief Justice who was a party to the decision in Kochuni's case, : [1960]3SCR887 had to consider the question of the validity of certain acquisition proceedings initiated under Section 4 of the Land Acquisition Act 1894. In repelling the contention that the land acquisition proceedings violated the fundamental right under Article 19(1)(f) of the Constitution, the learned Chief Justice relied on and followed Bhanji Munji's case, (S) : [1955]1SCR777 and the case of. Lilavati Bai v. State of Bombay : [1957]1SCR721 which has direct bearing on the question, whether Article 31(2) of the Constitution excludes the operation of Article 19(1)(f). Although the observations of the learned Chief Justice are very cryptic on the point, there can be hardly any room for doubt that Sinha, C. J. intended to hold that a legislation dealing with acquisition or requisition I as contemplated by Article 31(2) read with (2A) has the effect of excluding the operation of Article 19(1)(f). If paragraphs 6 (page 1205), 10 (page 1206) and 13 (page 1208) are read together that appears to. be the nett effect of the decision.

11. In my view, therefore, West Bengal Act II of 1948 which deals with requisition and acquisition as contemplated in Article 31(2) of the Constitution cannot be held to be ultra vires on the ground that it violates Article 19(1)(f) of the Constitution.

12. The further point that has been raised by Mr. Anil Kumar Sen, the learned Advocate for the petitioners is that even assuming that the case of : [1961]1SCR128 Has held that the case of (S) : [1955]1SCR777 and the case of (S) : [1957]1SCR721 were available to the petitioners in that case for successfully resisting the attack of constitutional invalidity of the land acquisition proceedings. based on Article 19(1)(f) of the Constitution, it was so held because the Land Acquisition Act 1894, was an existing law and it was a statute which had been enacted prior to the coming into force of the Constitution (Fourth Amendment) Act 1955, and wag therefore not affected by the amendment of the Constitution by the Fourth Amendment Act which had no retrospective operation. Consequently the principle enunciated in Bhanji Munji's case and in Lilavati's case was applicable to consideration of questions of constitutional invalidity arising out of the Land Acquisition Act, 1894. But as the life of the present West Bengal Act II of 1948 has been extended by the West Bengal Ordinance V of 1957 and the West Bengal Act XII of 1957 and certain substantial alterations have been made in the provisions of the Act of 1948 by the said Ordinance and Act of 1957, the West Bengal Act II of 1948 should be regarded as a Statute enacted after the Constitution (Fourth Amendment) Act 1955, to which the principles enunciated in Bhanji Munji's case or in Lilavati's case do not apply.

13. Reliance is placed on the decision of this Court in Satyanarayan Nathani v. State of West Bengal : AIR1957Cal310 in support of the argument that the West Bengal Act II of 1948, must be regarded as a Statute enacted or passed after the Constitution (Fourth Amendment) Act 1955, by reason of its life being extended by the Ordinance and the Act of 1957. But it appears to me that the Calcutta decision on this particular point cannot be regarded as good. law in view of the decision of the Supreme Court in Lilavati's case : [1957]1SCR721 where a similar question arose in connection with the Bom-hay Land Requisition Act (Act 33 of 1948), and it was held that merely by reason of the life of the original Act being extended by Amending Acts passed after the coining into force of the Constitution and by reason of certain substantial changes being effected in the body of the original Act, the Statute of 1948 did not cease to be an ''existing law' within the meaning of the Constitution, and the substantive Act remained the same. (Paragraphs 5 and 6 of the Judgment, pages 524, 526).

14. In view of this decision in Lilavati's case,(S) : [1957]1SCR721 the W. B. Act II of 1948, cannot be regarded as a Statute passed or enacted after the Constitution (Fourth Amendment) Act 1955.

15. I hold that Section 3 of the West Bengal Land Requisition and Acquisition Act 1948, is not invalid. 16. The next point that has been urged on behalf of the petitioners is that the copy of the Requisition Order served on the petitioner is not in compliance with Rule 3(i) of the West Bengal Land Requisition and Acquisition Rules 1948 as it does not at all bear the personal signature of the competent authority namely the Collector, but only a facsimile or lithographic signature of the Land Acquisition Collector who is not the competent authority. It is further submitted that in any event the affixation of a lithographic signature is not a sufficient compliance with Rule 3(i) of the West Bengal Land (Requisition and Acquisition) Rules 1948. Rule (3)(i) is as follows:--

'Save as otherwise provided in this rule, an order under Sub-section (1) of Section 3 shall be served by delivering or tendering a copy thereof endorsed by the Collector to the person on whom the order is to be served.'

17. It is clear that this Rule requires that the copy of this Requisition Order is to bear the endorsement of the Collector.

18. In construing a somewhat similar Rule made under the Bengal public Demands Recovery Act this Court has taken the view that the personal signature of the Certificate Officer or thesignature of a duly authorised ministerial officer was necessary in order theat there might be a proper compliance with Rule 2 of the Bengal Public Demands Recovery Rules framed under Section 38 of the Bengal Public Demands Recovery Act and a lithographic signature was not sufficient. Abanindra Kumar Maity v. A. K. Biswas : AIR1954Cal355 of the judgment. The learned Judges (Lahiri J. and Mitter, J.) differed from a former Division Bench Judgment of this Court reported in Kara Prasad v Gopal Chandra : AIR1927Cal315 . In my opinion the view taken by Lahiri, J. and Mitter, J. in : AIR1954Cal355 is perhaps the more correct view and prefer to follow the same.

19. In an English case reported in R. v.F. Cowper, (1890) 59 LJ QB 265 it was also held V Fry, L. J. (Lord Esher, dissenting) agreeing with the judgment of the Divisional Court that alithographic endorsement of a Solicitor's name was not a compliance with the provisions of Order 6, Rule 10 of the County Court Rules 1889 which required that the Solicitor should 'endorse on the particulars his name or firm.''

20. The judgment of the Divisional Court is reported at page 26 of the same volume of 59 LJ QB. It appears that Lord Coleridge, C. J. and Mathew, J. constituting the Divisional Court came to the conclusion, though not without some amount of reluctance, that ''endorse' in the Rule was equivalent to 'sign' and in the absence of the personal signature of the Solicitor the document was bad.

21. Mr. Mazumdar appearing for the Respondents does not dispute the fact that the copy in question does not bear the personal signature of the Collector and the notices were all in this form. In the circumstances it must be held that the copy of the Requisition Order actually served on the petitioners is not in Compliance with the requirements of Rule 3(i) of the West Bengal Land Requisition and Acquisition Rules, 1948, and on this last ground the petition should succeed.

22. In the result the Rule is made absolute. Let a Writ in the nature of Mandamus issue directing the opposite parties Nos. 1 to 3 to forbear from giving effect to the Order of Requisition complained of in the petition. The opposite parties will however be at liberty to enforce the order of requisition after duly complying with the Rules.

23. There will be no order as to costs.


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