THE STATE OF WEST BENGAL AND OTHERS versus NABA KUMAR SEAL

SINHA C. J.-The only substantial question that arises for determination in this appeal, on a certificate granted by the Calcutta High Court under Art. 133 (l)(c) of the Constitution, is whether the Government of West .Bengal was bound to frame a development scheme under the provisions of the West Bengal Land Development and Planning Act, 21of1948, which hereinafter will be referred to as the Act, when it exercised its power of emergency under s. 7 of the Act.

p. 369

The facts of this case lie within a very narrow compass and are as follows : The respondent was the owner of about 18 bighas of land in a certain village in the distric~ of 24 Pargauas. By a notification dated January 6, 1950, and published in the Calcutta Gazette dated January 12, 1950, under s. 4 of the Act, the Government declared that the cadastral survey plots, i:;a.rticulars whereof were given in the notification, were likely to be n~ecled for the settlemt•nt of immigrants and for crc·n.tion of better living conditions in the locality. Thereafter a notification was issued under s. 6 read with s. 7 of tho Act and published in tho Calcutta Gazette dated April 27, 1950, declaring that the plots coverod by the notification under s. 4

pp. 369–370

'd d d h a1ore8a1 were nee e ior t e very same purposes as stated in thl'I notific11tion under s. 4. On or about December 16, 1950, pcssessiun of those plots, except three, was taken by the Government. When tho Government started to erect certain structures on the land thus acquired and stored building materials nearabout, t.be respondent moved the High Court under Art. 226 of the Constitution challenging the vires of the Act and impugning the legality of the proceedings taken under the Act. The matter was heard by H. K. Bose, J., sitting singly. Before him the grounds urged in support of the petition were that the relea8e of the three plots from the acquisition proceedings rendered the entire procoodings bad in law; that there was nu nrgenJy for the Government to take steps under s. 7 of the Act, and for issuing tho notifi. cation under s. 6; and that the provisions of the Act infringed the fundamental rights of the respondent, pecit.ioner in the High Court, enshrined in Art. 19(1)(f) of the Constitution. The learned Judge, by his judgment dated March 28, 1952, negatived all those contentions and discharged the rule issued by the High Court on tlw Government of West Bengal and others under Art. 226 of the Constitution.

p. 370

The respondent preferred an appeal under the Letters Patent. The appeal was heard by a Division Bench consisting of G. N. Das and Debabrata. ~fooker­ jee, JJ. By their judgment d'ited July 7, 1953, it was held that the Act did not infringe the provisions of Art. 31 (2) of the Constitution and that therefore it became unnecessary to express any opinion with respect to the provisions of Art. Hl(l)(f). But the Bench also examined the provisions of the Act in the light of Art. 19(l)(f; of the Constitution and came to the conclusion that there was uo infirmity in the Act, even on that score. Having decided all the points raised on behalf of the appella11t b_efore it, the High Court allowed the appellant to raise another controversy, which had not been raised before the learned single Judge, namely, whether it was incumbent on the Government to frame a development scheme, after possession had been taken by it, of the land in question. Ordinarily, such a controversy should not have been allowed to be raised for the first time in the court of appeal. Be that as it may, it came to the conclusion that even though the Government was entitled to deal with the land on an emergency basis under s. 7 of the Act, it was incumbent on the State Governmlmt to frame a development scheme after possession had been ·taken. The main reason for this conclusion as given by the High Court is that though s. 7 had armed the Government with the power to take possession of the property before framing a scheme of development, the section does not, in terms, dispense with the necessity of framing a development scheme, after the emergency had been declared and possession taken. In that view of the matter, the court of appeal allowed the appeal in part and directed a writ of mandamus to issue to the respondents before it, requiring them to proceed to frame a development scheme in terms of the Act. The State of West Bengal and other officials who had been impleaded as respondents in the High Court applied for leave to appeal to this Court from the said judgment of the appeal court. The High Court granted the leave prayed for, on condition that the appellants paid for the representation of the respondent before this Court by a junior Advocate of this Court. That is how the matter comes before this Court.

pp. 370–371

It was argued on behalf of the appellants that the appeal court had misapprehended the scope and effoct of ss. 4, 5, 6 and 7 of the Act; that the Act contemplated two categories of acquisition proceedings, namely, (1) acquisition under s. 6, after compliance with the provisions of s. 5 and (2) acquisition in case of an emergency under s. 7 read with s. 6 of the Act; that the condition precedent laid down in s. 5 necessitating 3i2 Sl!PHEME C:Ol:HT REPOBTS [ UlGl] the framing of a scheme before rlcclaration under

pp. 371–372

6 of the Act was made, is spedfically excluded in cases of emergency once a declaration of emergency under 7 is made. The High Cout was, therefore, in error in insisting upon the framing of a development scheme under s. 5 of the Act, whlm that section had not be!'n made applicable to the case of an emergency

p. 372

0 h I acqms1t10n. nee t e property las uccn acquire< it vests in the Government and thereafter the original holder of the property has no Hay in the matter, cxc·cpt· on the question of amount of compensation. '.\Ir. ~en, for thn appellants, finally contended that if the High Court was right in insisting uron a heme uf de\'elopment being framed, the whole p•1rpos!1 of declaring an emergpncy would be defeated.

p. 372

The learned counsel for the respondcut has nut rn1Ldc any serious attempt to meet the euntentiuns raised ou behalf of the appellants, but ha" attempl!'d to show that the provisions of the Act, in so far as thcv "ivc special powers to Government to d(,clare an cnwrgeucy and thPn to proceed with the acquisitiou without the nece8sity of framing scheme of developmcut, were unconstitutional, bot.h in view of the rrov is ions of Art. 31(2) and Art. 19(l)(f). Ill' abo made ven· feeble attempt to rely upon the pr"visions of Art. 14 of the Constitution and to suggest that the l'l'8]Ju11dcnt was being discrimiwLted against in the appli(>ation of the emcrgeucy provisions of the Act to his case.

p. 372

In our opinion, the coutentions raised on behalf uf the appellants are n:anifestly well-founded and the High Court was clearly in orrnr in issuing the mandamus against the appellants.

p. 372

Before dealing with tl1e content.ions raised on behalf of the parties, it is convenient, a.t this stag(., to set out the relevant prnvisior1s of th<' Act. The Act. replaced t ht· West Bengal Laud Denlopmcnt and Planning Ordinance, I I of 1948, which was in similar terms. Tho Aet and t.he Orclinanct', which it replac:cd, were enacted apparently as a result of the emergency created by the continua.I !'XOdus of Hindus from East. l'akistan mass scale a11d tlw consequent iznrnigration of very large population iuto West lle11gal, as a result of the partition. The Act was enacted " to provide for the acquisition and development of land for public purposes". It adopts the definitions of" land", "Collector" and "company" as in the Land Acquisition Act, I of 1894, to which it is, in its terms, supplementary. In the definition section 2, "development scheme" means a scheme for the development of land for any public purpose ; and a" notified area " has been defined as an area declared as such under sub-s. (1) of s. 4. "Public purpose" has been defined in cl. (d) of s.2 as including (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, and (iv) ·the improvement and·development of agriculture, forestry, fisheries and industries; but does not include a purpose of the Union. Section 3 authorises the State Government to appoint the "prescribed authority " for carrying out the purposes of the Act. Section 4 is, in terms, analogous to s. 4 of the Land Acquisition Act and authorises the State Government by notification in the Official Gazette to declare any area to be a notified area on being satisfied that that specified area is needed or is likely to be needed for any public purpose. The Act was amended in 1955 bv the West Bengal Act, XXIII of 1955, and one of tl;e amendments made by that Act was to add s. 4A making provision for objections to be taken by any person interested in any land within the notified area, fo~ an opportunity of being heard and for an enquiry bemg made on the merits of such objections, and finally for submission to the State Government of a report on the objections raised. We are no.t concerned in this case with s. 4A because it was inserted into the Act after the decision of the case by the High Court. Section 5, with which we are mainly concerned in this case is in these terms :-

pp. 372–373

" 5(1). The State Government may direct the prescri?ed authority, or, if it so thinks fit in any case, authonse any Company or local authority, to prepare in accordance wiith the rules, a development schem~ 3i4 Kt.:PREl\lE COVRT REPOHTS [ 1961] in respect of any notifiP<I area and thereupon such scheme shall be prepared accordingly and submitted, together with such part icularn as may be prescribed by the rules, to the State Government for it8 sanction :

pp. 373–374

Provided that no scheme shall be ne.ce8sary for acquisition of land for the public purpose Rpecified in. sub-clause (i) of clause (d) of section 2.

p. 374

2 ). A eve opment scheme submitted to the State Government under sub-section (I) may, after taking into consideration any report submitted under subsection (2) of section 4A, be sanctioned by it either without any modification or subject. to such modifications as it may deem fit."

p. 374, margin D

The proviso to s. 5 was added by the same amending Act (West Bengal Act XXIlI of 1955) and is likewise inapplicable to this •Jase. Section 6 again is, in terms, analogous to s. 6 of the Land Acquisition Act, which provides for the declaration to be published in the Official Gazette to the effect that the State Govnnment was satisfied that any land in a notified area, for which a development scheme has been sanctioned under s. 5(2) of the Act, is needed for the purpose of executing such a scheme, unless there already has been a declaration made un<lPr s. 7 of the Act. Section 7, w hi oh is another section, the construction of which is involved in this casr, is in these terms:-

p. 374, margin D

"In cases of urgency, if in respect of any notified are11. the State Government is satisfied that. the preparation of a de\·elopmcnt scheme is likPly to be delayrcl, the St11.te Government may, 1it any time, make a declaration under section 6, in respect of such notified area or any' part thereof though no develop. ment scheme has either been prepared or sanctioned under section 5."

p. 374, margin D

Section 8 makes the provisionH of the Land Acquisition Act applicable to acquisition proceedings taken in pursuance of the declaration made, either under s. 6 or s. 7 of the Act, subject to certain reservations made in pursuance of the prol'isos to s. 8, relating to taking possession, determination of the amount of compensation, and of market value. The other sections of the Act are not relevant to the point in controversy in this case and, therefore, need not be a.d vertod to.

p. 374, margin D

It will be noticed thats. 7 is in the nature of a proviso to s. 6. Section 7 provides that in cases of urgency, if

p. 375

. . fi d h h . the S tate G overnment sat1s e t at t e preparation of a development scheme is likely to be delayed, it may make a declaration under.s. 6 that the land was needed for a public purpose, even though no development scheme has either been prepared or sanctioned under s. 5. The section, therefore, in clear terms, authorises the State Government to issue the necessary declaration under s. 6, which puts the machinery of land acquisition proceedings into motion, if it is satisfied t,hat the public purpose necessitating the acquisition of the land in question would be subserved without the preparation of a development scheme.. The Act itself came into existence in circumstances of great urgency. Naturally, therefore, in suitable cases, where the preparation of a development scheme would cause delay, the Government was authorised to proceed with the acquisition of land after making the necessary declaration under s. 6. As already indicated after that declaraltion has been made by Government in the Official Gazette and the necessary enquiry made about compensation and the making of the award, the property becomes vested in the Government. The question naturally arises whether there is anything in the Act which makes it obligatory on the State Government to prepare a scheme of development thereafter. The High Court has recognised the need for taking speedy action to meet the emergency created by the heavy influx of immigrants. The High Court has observed that s. 7 does not, in terms, dispense with the framing of a development scheme and that it merely says that the Government may issue a declaration under s. 6, even though no development scheme has been framed. But the High Court has farther observed that even after taking possession of the property under r. 8, framed under the Act, within three days, there is no reason why the normal process envisaged in the Act should not be gone through. The argument proceeds further that the Act itself contemplated land planning and development and therefore the framing of a development scheme was an essential part of the :liG f.>UP.IUDIE COCRT HEPORTS [ l!J(il l process. Hence, in the view of the High Court the framing of a de\•elopmt•nt scheme was neceRsary in tho normal ''01irse, bpfore the declaration under s. 6 is made hy the (;overnm1•nt, and in the cas<' of urgency under s. 7, afwr taking possession of the land in question. In our opinion, such a construction of the provisions of th~ Act is nut warranted hy the terms of the Act.. The addition of the proviso to s. 5, quoted above, makes it cle11r that the Legislature has recugnis£>d the necessity in special circumstances of not framing a scheme in the case of the public purpose cont-0mplatcd in cl. (d)(i) of s. 2, namely, for the purpose of settlement of immigrants. On a fair reading of tho relevant provisions of the Statute, it becomes clear tha•, the Act contemplat-Od acquisitions of two distinct classes, namely, (I) where the Government had first considered and sanctioned a development scheme under the provisions of s. 5 and then made a declara, tion that the land in a notified area was needed for the purpose of executing the particular development scheme and (2) where t.he notification under s. 6 is made without any development scheme being prepamd and sanctioned under s. 5. Once the deelaration is made under s. 6, the machinery of the Land Acquisit.ion Act, I of 1894, cPmes into opera! ion, of course •uhject tot he resrrn.t.ions contained in the provioR to s. 8, as aforesaid. Th<' Land AcC]uisition Act it.self does not contemplalf• th" preparation of any such scheme of (leveloprnt>nt. In other words, s. 7 compleLely rlispensrs with the Rtatutory necessity of preparing a scheme of development as envisaged ins. 5 of the Act in cases where the Government has taken the decision that it is necessary to proceed furthn with the acquisition proceedings without waiting for the preparation of a scheme. To insist upon the preparation of development scheme would amount to rendering tbl' provisious of s. 7 otiose. There is no justification for the observation made by the High Court that the Legislature did not intend that the State Government should proceed with the land acquisition proceedings under the Act without framing a Mcheme of development.

pp. 375–376

The High Court has recognised the legal position that it is open to the Government to take possession of the land under acquisition within three days after · the making of the declaration of urgency under s. 7, but has insisted that, even after taking possession as a measure of urgency, the Government was bound to prepare a scheme of. development. If that were so, the question naturally arises: to what use the land so taken possession of was to be put. The taking of possession in cases of urgency would itself predicate the use of the land thus taken possession of by the Government. But if the Government were to wait for the preparation and sanction of the scheme before putting the land acquired to any use, the very purpose of declaring the urgency and the taking of possession would be defeated. It is clear, therefore, that the Legislature did not mean to insist upon the preparation of a scheme of development in cases of land acquisition brought within the purview of s. 7 of the Act.

p. 377

That disposes of the appeal. Bnt the learned counsel for the respondent appealed to the provisions of Arts. 14, l9(l)(f) and 31(2) of the Constitution in aid of his contention that s. 7 of the Act was ultra vires. Apparently, there is no discrimination. As already indicated, there. are two classes of cases into which the land acquisition proceedings envisaged by the Act fall. The two classes can be easily identified and the purpose of the classification is based on a rational consideration, having due regard to the purpose ·and policy underlying the Act, namely, to acquire land for tho public purpose, inter alia, of resettling immigrants who had to leave their hearth and home on account of circumstances beyond their control. Such cases of urgency, as come nnder s. 7, are clearly meant to serve the main purpose of the Act. In our opinion, therefore, there is no substance in the contention that discrimination is implicit in the provisions of s. 7.

p. 377

The attack on the Act based on Arts. 19(l)(f) and 31(2) of tho Constitution is futile in view of the provisions of Art. 31B, which is in these terms:- 3iS SL' l'HE~IE COL' J{T HEPOHTS [!!Jul]

pp. 377–378

"Without prejuuicu to the generality of the provisio11s contained in article :HA, none of the Acts and Regulatio11s Hpccified in the l\i11th Schedule nor any of the pruvisio11H thereof shall be deemed to be void, or c\'1)r·to have hecorne void, on thu ground that such Aet, Hegulat ion or provision is inconsistent with, or take,; a11iL.1· or abridges •~n.v of the nghts conferred b_r, any pro1·isious of thi8 P<J.rL, au<l notwithstanding auy judgnwut, <focrcc or vrd1,r of any court or tribuual tu the tt«Lr.1-, each of the Haid Acto; aud ~{egulatious shall, subject to the power of any competeut L<'gislatun• to repeal or 1tn.:cn<lcd it., continue in force." The Act in question is t.he last entry (serial number 20) in th'' :\inth S"hedule. Article 31B, quoted above, which renders tne Act.immune from all attaeb based on the provisiims of Part Ill of the Constitution relating to fundamental rights, makes it unuecessa.ry to discuss with reference to the provisions of the sta.tme that, cveu if the question were open, the Act does not suffer from any such infirmity, as is attributed to it.

p. 378

In view of the considerations set out above, we allow this appeal, ~et a.side the judgmoul under appeal with costs here 1tnd in the High Court. The respondent's petitiun questioning the 1·iros of the Act is dismistie<l.

p. 378

Appeal allowed.

p. 378