Sachindra Mohan Nandy v. State of West Bengal

Sikri, C.J. The following question has been referred to the Constitution Bench under the proviso to art. 145(3) of the' Constitution :

"Whether the West Bengal Land (Requisition and

Acquisition) Act 1948 is ultra vires the

Constitution under art. 19(1)(f) read with

art. 19(5)?

The learned counsel for the appellant, Shri Arun Kumar Dutta, challenges the West Bengal Land (Requisition and Acquisition) Act, 1948-hereinafter referred to as the impugned action theground that it does not impose reasonable restrictions withinart. 19(5) of the, Constitution. He urges three ground in thisrespect. First, he says, that there is no provision for a noticeto the owner or the occupier of the property before an order of requisition is passed, secondly, there is no provision for an appeal against the order of requisition, and thirdly, a civil suit is barred under s. 1 1 of the impugned Act. In order to appreciate the points raised by the learned counsel it is necessary to set out the scheme of the Act. The impugned act was enacted in order to provide for requisitioning and speedy acquisition of land for a number of public purposes. These purposes are-: (1) maintaining supplies and services essential to the life of the community; (2) provide proper facilities for transport, communication, irrigation or drainage; and (3) creation of better living conditions in urban or rural areas by the construction or re-construction of dwelling places in such areas. The State of West Bengal,was faced with many emergent problems created. by the partition of India, and this Act was designed to meet these problems in a speedy manner. Section 3 enables the State Government to requisition land for the purposes mentioned above. A Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta, when authorised by the State Government in this behalf, may exercise within his jurisdiction the powers of requisitioning conferred by sub-s. (1). Sub-s. (2) of s. 3 provides for service of this order in the prescribed manner on the owner of land and also on the occupier not being owner of land. Under sub-s. (3) of S. 3 the Collector, or any person authorised by him in writing in this behalf is entitled to execute the order in the manner mentioned therein, if the order passed under sub-s. (2) is not complied with by any person. There is nothing in the impugned Act which prevents a person on whom an order has been served under sub-s. (2) to make a representation to the Collector Or the State Government against the order of requisition Section 4 enables the State Government to use or deal with the land for the purposes aforesaid. We are not concerned with acquisition in this case but we may mention that the State Government may acquire 'any land requisitioned under the Act by publishing a notice in the official gazette that such land is required for a public purpose referred to in sub.s. (1 ) of, s . 3. Section 6 enables the St-ate Government to derequisition or release from requisition any land.

The impugned Act provides for fair. compensations in respect, of the requisitioned land under 8. 7(3) and s. 7(4). Sub-s. (3) provides that where any land is requisitioned under S. 3, there. shall be paid to every person interested compensation in respect. Of-

(a) the, requisition of such land; and

(b) any damage done during the period of

requisition to such land other than what may

have been sustained by natural causes.

Sub-s. (4) lays down the principles to be followed in determining the compensation. If the Collector and the person interested agree to the compensation the Collector is enabled to make an, award ordering payment of the agreed compensation. If there is disagreement, sub-s. (4) provides that the compensation pay-able shall, be the amount determined by the- Court on reference made by the Collector under cl. (b) of sub-s. (1) of s. 8. Under s. 8 the Collector is obliged to refer the matter to the decision of the Court if there is any disagreement with regard to compensation, and sub-s. (2) of s. 8 prescribes the same procedure as the Land Acquisition Act, 1894, in this regard, and the State Government is directed to apply the principles set out in sub-s, (1) of s. 23 of that Act, and in cl. (a) of sub-s. (2) of s. 7 of the, impugned Act, which provides

"7(2)(a) When the compensation has been deter-

mined under subsection (1) the Collector shall

make an award in accordance with the

principles set out in section 11 of the Land

Acquisition Act, 1894, and no amount referred

to in sub-section (2) of section 23 of,

that Act, shall be included in the award :

Provided that interest at the rate of six per

centum per annum on the amount of compensation

under the, award from the date of the

publication of the- 'notice, under sub-section

(1a) of section 4 until payment shall be

included in the amount payable under the

award."

It seems to us that these provisions give fair compensation and' enable a Civil Court to determine the question in case of a dispute. An appeal lies under s. 8 A from the award made by a Court on- a reference under s. 8 as if such award was an Originals decree passed by the Court in exercise of its civil jurisdiction. Not only therefore fair compensation is provided but the determination of the amount of compensation rests with a Civil Court in case of a dispute. Although the learned counsel took objection to the court which has to make an award, we see nothing– wrong with the definition of the word "Court" the word "Court" has been defined to mean:

" "Court" means a principal Civil Court of

original jurisdiction, and includes the Court

of any Additional Judge, Subordinate Judge or

Munsif whom the State Government may appoint,

by name or by virtue of his office, to perform

concurrently with any such principal Civil

Court, all or any of the functions of the

Court under this Act within any specified

local limits and, in the case of a Munsif, up

to the limits of the pecuniary jurisdiction

with which he is vested under section 19 of

the Bengal, Agra and Assam Civil Courts Act,

1887."

Section 1 1 provides that "save as otherwise expressly pro-vided in this Act, no decision or order made in exercise of any power conferred by or under this Act shall be called in question in any Court." It seems to us that if any order is made for any collateral purpose or has been made for purposes not mentioned in s. 3 or is mala fide, it can always be challenged.

We are, therefore, of the opinion that it is difficult to hold that restrictions imposed by the impugned Act are unreasonable. Fair compensation has been provided for requisitioning, which is determinable by a Civil Court and ultimately by the High Court ,or the Supreme Court. Regarding the necessity for requisitioning it must necessarily be left to the State Government. It is true that there is no express provision to make a.representation against an order of requisition but there is no bar to a representation being made after an order is served under s. 3 (2) of the Act. We have no doubt that if the representation raises a point which overrides the public purpose it would be favourably considered by the State Government or other Government authorities as the case may be.

Accordingly the question referred to us is answered in the negative. The case will now go back to the Division Bench for disposal according to law.

V.P.S. Act held intra vires.

Separate opinion

Sikri, C.J. In our order dated March 10, 1970, we stated that we will give our reasons later for rejecting the points raised before us. We now proceed to give those reasons. This is an appeal against the judgment of the High Court of Calcutta (Bose, C.J., and Mitra, J.) dismissing the appeal of Sachindra Mohan Nandy and ja Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., discharging the rule obtained by the appellants under Art. 286 of tile Constitution; In Order to appreciate, the points, raised before us it is necessary to state the relevant facts.

On October 9, 1960 and October 10, 1960, the Collector- of Hoogly made two orders under S. 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948-hereinafter referred to 7 97 as the Acquisition Act. The Collector' purported to requisition land belonging to the appellants for certain public purposes. He had issued the orders in exercise of the powers which had been conferred upon him by notification No. 3775-L.A. dated May 11, 1948, published in the Calcutta Gazette., Part 1, on May 27, 1948. 'This notification had authorised the Collector to exercise the powers under s. 3(1) of the Acquisition Act. When this notification was passed Chandernagore, where the requisitioned land is situate, was not part of West Bengal and it is on this fact that one argument, shortly to be mentioned, rests. According to the appellants the Acquisition Act has never been extended and made applicable to Chandernagore. For appreciating this particular point it is necessary to state the history of Chandernagore. It is well-known that it was a French settlement in India, and it was only on October 2, 195,4, that it was merged in the, State of Bengal., Section 3 of the Chandernagore (Merger) Act, 1954 (XXXVI of 1954) provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the State Government shall provide for the administration of Chandernagore by constituting it into a new sub-division of the District of Hoogly. Section 17 provided that "all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, come in to force in, Chandernagore." Section 1 8 has not much relevance but the learned counsel relied on it. Section 1 8(1) reads thus

"18(1) Repeal of Corresponding laws and

savings

Any law in force in Chandernagore immediately

before the appointed day (hereafter in this

Act referred to as the " corresponding law")

which corresponds to any law referred to, in

section 17, whether such corresponding law is

in force in Chandernagore by virtue of the

Chandernagore (Application of Laws) Order,

1950, or by virtue of any notification issued

under the Chandemagore (Administration)

Regulation, 1952 (Reg. 1 of 1952) or

otherwise, shall, as from that duty, stand

repealed in Chandernagore.

The word "law" was defined in the

Chalidernagore (Merger) Act, 1954, as follows

: (S. 2(d)

" "law" means so much of any enactment, Ordin-

ance, Regulation, order, rule, scheme,

notification, bylaw or any other instrument

having the force of law as relates to matters

enumerated in List I and List III in the

Seventh Schedule to the Constitution."

After this the Legislature of West Bengal enacted the Chan-dernagore (Assimilation-,of Laws) Act, 1955. Section 2(c) of this Act defined "law" to mean "so much, of any Act, Ordinance, Regulation, order, rule, scheme, notification, bye-law or any other instrument having the force of law as relates to matters enumerated in List III in the Seventh Schedule to the Constitution of India." Section 3 provides that "all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, come into force in Chandernagore." Section 4(1) provided for repeal of corresponding laws and reads,

"4(1) Any law in force in Chandemagore imme-

diately before the appointed day (hereinafter

in this Act referred to as "corresponding

law") which corresponds to any law referred to

in section 3, whether such corresponding law

is in force in Chandernagore by virtue of the

Chandemagore (Application of Laws) Order, 1950

or by virtue of any notification issued under

the Chandernagore (Administration) Regulation,

1952, or otherwise, shall as from the day

stand repealed in Chandernagore."

Section 8, which was inserted in 1959, removed certain doubts regarding the extension of certain acts to Chandernagore, in the following terms:

"8. Notwithstanding anything to the contrary,

in any judgment or decision of any court,

tribunal or authority, the following Acts,

that is to say The West Bengal Land

Development and Planning Act, 1948, The West

Bengal Non-Agricultural Tenancy Act, 1949 and

The West Bengal Estates Acquisition Act, 1953

shall extend to and be deemed always to have

extended to Chandemagore with effect from the

appointed day."

We may here set out the notifications empowering Sri. B. K. Chatterjee, I.A.S. to perform the functions of the Collector in the District of Hooghly under the Acquisition Act. By the first notification dated September 15, 1959, the Governor was pleased "to specially appoint Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to perform the functions of a Collector under the said Act in the District of Hooghly." Another notification issued on the same day had authorised Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to requisition by order in writing any land within the local limits of the District of Hooghly. The two requisition orders purport to have been signed by the Collector of Hooghly. The notification dated May 11, 1948, to which reference has been made above read's as follows:

"No. 3775 L.A. (P.W.) 11^th May, 1948. In ex-

ercise of the powers conferred by Sub-section

(1) of Section 3 of the West Bengal Land

(Requisition and Acquisition) Act 1948 (West

Bengal Act 11 of 1948), the Governor is

pleased hereby to authorise each of the

Collector and the Deputy Commissioners

mentioned in the Schedule below to req uisition,

by order in writing, in pursuance of the

provisions of the said Sub-section (1) of the

said Section 3, (torn) land within the local

limits of his jurisdiction and (torn) to make

such further orders as appear to him to be

necessary or expedient in connection with the

requisitioning

Schedule.

Collector of Hooghly District The learned counsel has raised the following points before us (1) that the orders of requisition were illegal as the Acquisition Act under which they were issued, did not apply to the territory previously known as French Chandernagore; and (2) that under the notification dated-May 11, 1948, the Collector could exercise the powers of requisition only in respect of lands within the local limits of the territories then forming part of the Hooghly District.

Regarding the first point, it seems to us that there is no force in the contentions. Section 3 of the Chandernagore (Merger) Act, 1954, made Chandernagore part of the State of west Bengal, and s. 17 extended the Acquisition Act to it. The Acquisition Act was a law within the meaning of "law" contained in s. 2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enumerated in List 11 in the Seventh Schedule to the Constitution. List 11, as it then existed, contained the following entries

" 36. Acquisition or requisitioning of

property, except for the purposes of the

Union, subject to the provisions of entry 42

of List Ill."

Entry 42 of List III was to the following effect

"Principles on which compensation for property

acquired or requisitioned for the purposes of

the Union or of a State or for any other

public purpose is to be determined, and the

form and the manner in which such compensation

is to be given."

7—L1100 Sup.CI/71 Insofar as the Acquisition Act related to entry 42 of, List III it was applied by S. 3 of the Chandernagore Assimilation of Laws) Act 1955, and s. 17 of the Chandernagore (Merger) Act, 1954, read with the definition of the word "law" in s. 2(d) of the latter Act.

The learned counsel further urged before us that this law was not in force in the State of West Bengal "generally" because it provided that it shall remain in force upto a certain date and this date had been changed from time to time. In 1954 it was provided that it shall remain in force upto Match 31, 1957. We are unable to appreciate how the word "generally" has any reference to the duration of the time during which an act has to operate. We, agree with the High Court that the word generally" refers to the territory of West Bengal.

Another argument that was urged before us was that because there was no corresponding law within the meaning of s. 17 of the Chandernagore (Merger) Ac, 1954, and s. 4 of the Chandernagore (Assimilation of Laws) Act, 1955, s. 3 of the latter Act did not have the effect of extending the Acquisition Act to Chandernagore. We are unable to appreciate this reasoning. Section 4 has a limited effect and that is that if there is a corresponding law then that law shall, as from that.date, stand repealed in Chan-dernagore. If. there is no. corresponding law then s. 4 does not operate and it has no effect on the scope of s. 3. It was finally urged in this connection that as there was no law on the subject of requisitioning of property in French territory, the citizens enjoyed the privilege of immunity and any order to deprive the citizens of that immunity, should have been much more specific. We agree with the High Court that there is no, force in this contention. If by virtue of S. 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore all privileges and immu-nities in conflict with that Act would cease to exist. Coming to the second point, we agree with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a collector then the notification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning land existing in Chandernagore because Chandemagore had come within the limits of his jurisdiction. The notification must be construed to refer to the limits of the District as it exists on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S., Additional District Magistrate, then he had authority by virtue of the notification dated September 15, 1959, mentioned above.

The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of "collector" ("the Collector of a district and includes a Deputy Commissioner- and any officer specially appointed by the State 'Government to perform the functions of a Collector under this Act) urged that the Additional District Magistrate was not "specially appointed." There is no force in this point. The notification of September 15, 1959, amounts to special appointment within the definition of "Collector." We referred the following question to the Constitution Bench which has answered it in the negative :-

"Whether the West Bengal Land (Requisition and

Acquisition) Act 1948 is ultra vires the

Constitution under Art. 19(1)(f) read with

Art. 19(5) ?"

In the result the appeal fails and is dismissed with costs. G.C. Appeal dismissed.

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