Sitabati Devi v. STATE OF WEST BENGAL — 1961 DIGILAW 16 (CAL)

JUDGMENT 1. This application under Article 226 of the Constitution is made toy one Sitabati Devi who is the owner and by one Hazari Prosad Singh who is the tenant in respect of certain cadastral survey plots in Mouza Makhla in Police Station Uttarpara in the district of Hooghly. The petitioner no. 2 who is the tenant under the petitioner No. 1 has a brick manufacturing business and one kiln for the firing of moulded bricks on some of these plots. On the 2nd of July 1951, an order of requisition issued under sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948, was served on the petitioner No. 2 and it was stated in the said order that possession of certain lands mentioned in the schedule to that order including the plots in the occupation of the petitioner No. 2 would be taken on the 22nd of August, 1957. The petitioners challenge the validity of this requisition order on various grounds. It may be noted at the very outset that the life of this West Bengal Land (Requisition and, Acquisition) Act, 1948, has been extended from time to time by various amending Acts and the last of such extension was made by West Bengal Act XII of 1957. 2. The petitioners challenge the validity of this requisition order on various grounds. It may be noted at the very outset that the life of this West Bengal Land (Requisition and, Acquisition) Act, 1948, has been extended from time to time by various amending Acts and the last of such extension was made by West Bengal Act XII of 1957. 2. The learned Advocate for the petitioners has placed in the forefront the submission that the West Bengal Land (Requisition and Acquisition) Act, 1948, is ultra vires inasmuch as it 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 right inasmuch as (1) 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 orders made under the Act, (2) the power of requisition conferred by the Act is an arbitrary power on the exercise of which there is no check or limitation imposed, (3) the power of delegation conferred on the State Government by Section 3 of the Act is unfettered and such delegation can be made in favour of 'any person', (4) there is no provision for appeal against the orders made under the Act and (5) 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 prevision for drastic punishment for contravention of any order made under the Act. (Section 10 of the Act. The learned Advocate for the petitioners has also urged grounds Nos. 5, 6, 7, 9, 10 and 11 as set out in the petition for challenging the validity of the Act and the requisition order. It may be pointed out at the very outset that these other grounds challenging the validity of the requisition order as put forward by the learned Advocate for the petitioners do not need to be considered if the first submission of the learned Advocate is sound. Logically therefore the first submission may be considered first. 3. It may be pointed out at the very outset that these other grounds challenging the validity of the requisition order as put forward by the learned Advocate for the petitioners do not need to be considered if the first submission of the learned Advocate is sound. Logically therefore the first submission may be considered first. 3. 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 Lakshmi Janardan Jieu v. The State of West Bengal (1) (63 C.W.N. 101) and the learned Judge was inclined to hold that the provisions of the impugned Act constitute an unreasonable restriction on the fundamental rights 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. At page 118, the learned Judge after referring to several decisions of the Supreme Court proceeded to observe as follows: "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. 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 Be v. The Director of Procurement and Supply and Ors. (2) (57 C.W.N. 397 at page 406). 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. " 4. Then, in a later part of the judgment, the learned Judge after dealing with certain other decisions made the following further observations: "it seems to me that the result of the decisions above-mentioned 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 and consequently what State acquires is only some of the bundle of rights which go to constitute the 'property' of the citizen. The question is as to whether in such circumstances Article 19 has any application. In such cases, there is only a partial acquisition of property and consequently what State acquires is only some of the bundle of rights which go to constitute the 'property' of the citizen. The question is as to whether in such circumstances Article 19 has any application. " The conclusion which the learned Judge recorded on this point is found at page 126 and is in these words: "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. " 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. 5. The Supreme Court, however, in the recent case of Kochuni v. States of Madras and Kerala (3) A.I.R. 1960 S.C. 108-0, has held by a majority judgment that after the Constitution (Fourth Amendment) Act, 1955, Article 31 (1) and (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, Art. 31 (1) with deprivation of property by authority of law and that the decision of the Supreme Court in Bhanji Munji's case (4) (A.I.R. 1955 SC. 41) 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. 6. 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. 6. 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 of the petitioners is based on a misconception of the true scope and implications of the judgment of the Supreme Court. In Kochuni's case (3) the Supreme Court had to consider the question of the validity of The Madras Marumakkathayam (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 Tarward 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 Art. 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 Art. 14 of the Constitution, (ii) it is also void because it deprives the sthanee of his fundamental right to hold and dispose of property and thereby offends against Art. 19 (1) (f) of the Constitution and is not saved by clause 5 of Art. 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 sthanams 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's case (5) (A.I.R. 1950 S.C. 27) 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 Manji's case (4) (A.I.R. 1955 S.C. 41) on which reliance was placed by the learned Counsel for the respondent in support of their contention that Art. 31 (1) excluded the operation of Art, 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 Art. 31 (1) and Art. 31 (2) dealt with different subjects, but Art, 31 (1) and Art. 19 (1) (f) must be held to be dealing with the same subject and so there was no question now of Art. 31 (1) excluding the operation of Article 19 (1) (f). It was further, in this context, that the Supreme Court made the observations, that the decision in Bhanji Munji's case (4) 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 (3) Kochuni's case is that after the Constitution (Fourth Amendment) Act, 1955, Art. 31 (1) of the Constitution cannot he construed as excluding the operation of Art. 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. The learned Advocate for the respondents has drawn the attention of the Court to a subsequent decision of the Supreme Court reported in (6) A.I.R. 1980 S.C. 1203 (Barkya Thakur v. State of Bombay) where the learned Chief Justice who was a party to the decision in (3) Kochuni's case 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 Art. 19 (1) (f) of the Constitution, the learned Chief Justice relied on and followed Bhanji Munji's case (4) (A.I.R. 1955 S.C. 41) and the case of Lilavati Bai v. State of Bombay (7) (A.I.R. 1957 S.C. 521) which have direct bearing on the question whether Art. 31 (2) of the Constitution excludes the operation of Art. 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 as contemplated by Article 31 (2) read with (2a) has the effect of excluding the operation of Art. 19 (1) (f). If paragraphs 6 (page 1205), 10 (page 1206) and 13 (page 1208) are read together that appears to be the net effect of the decision. In my view, therefore West Bengal Act II of 1948 which deals with requisition and acquisition as contemplated in Art. 31 (2) of the Constitution cannot be held to be ultra vires on the ground that it violates Art. 19 (1) (f) of the Constitution. 7. In my view, therefore West Bengal Act II of 1948 which deals with requisition and acquisition as contemplated in Art. 31 (2) of the Constitution cannot be held to be ultra vires on the ground that it violates Art. 19 (1) (f) of the Constitution. 7. The learned Advocate for the respondent has drawn my attention to the decision of the Supreme Court in the case of Hamdard Dawakhana v. Union of India and ors. (8) [1960 (1) S.C. A. 314] and relied on certain general propositions which are set out in pages 328, 332, 333, 338 and 339 to 340 for the purpose of showing as to how a statute is to be approached and interpreted in considering the question whether it violates the provisions of the Constitution. These propositions have been deduced from earlier decisions of the Supreme Court and there cannot possibly be any dispute raised now with regard to the correctness of these propositions. It is not, therefore, necessary to deal with the general principles enunciated in this case at any length. The learned Advocate for the respondent also drew the attention of the Court to a decision of the Bombay High Court reported in (9) A.I.R. 1956 Bom. 300 (Bapurao Dhondiba Jagtap v. The State) where Chagla, C. J. pointed out that it would be erroneous to suggest that in every case where a fundamental right is sought to be taken away by an administrative order, the provision of the law would be bad because it would not give the citizen the right to make a representation with regard to the deprivation of that right. The question must depend upon the particular right which is being taken away and upon the circumstances and the conditions under which the authority is empowered to take away the right and upon the safeguard provided by the legislation. But it has to be pointed out that in that case the learned Chief Justice was called upon to consider the question of validity of Section 37 (3) of the Bombay Police Act. This section empowered the Commissioner of Police to make orders of a temporary nature prohibiting assembly or taking out processions for the preservation of the public order. The orders could not remain in force for more than fifteen days unless the State Government sanctioned otherwise. This section empowered the Commissioner of Police to make orders of a temporary nature prohibiting assembly or taking out processions for the preservation of the public order. The orders could not remain in force for more than fifteen days unless the State Government sanctioned otherwise. It was not a case of an expropriatory statute depriving a person of possession of or title to his property. Moreover, it is quite clear that, the very object of the statutory provision which was impugned in that case would be defeated or frustrated if any provision for representation or appeal was made in the Act. If any provision for representation or appeal had been inserted in such an Act, then by the time the representation or appeal would be disposed of the emergency which necessitated the making of such an order might cease to exist or the mischief which it was intended to prevent might have been done. These cases, therefore; to which reference has been made by the learned Advocate for the respondent, are distinguishable from the facts of the present case. 8. The next point that has been argued by the learned Advocate for the petitioners is that section 3 of the West Bengal Act cannot be severed from the other provisions of the Act and so the whole Act has to be struck down. Reference is made to the decision of the Supreme Court reported in (10) (1957) S.C.R. 930 at 948 to 950 (R. M. D. Chamerbaugwala v. Union of India. In view of my finding on the first point that section 3 of the Act is not ultra vires it is not necessary to deal with this point and I refrain from expressing any opinion on this point. The further point that has been argued by Mr. Arun Kumar Dutt is that as the heading of the West Bengal Act is "an Act to provide for the requisition and speedy acquisition of land for certain purposes" there is possibility and scope for the Act being applied for purposes other than public purposes and so the Act should be struck down. This contention has no substance whatsoever. The Preamble of the Act and section 3 itself of the Act clearly specify the different purposes for which the provisions of the Act can be put into force. The machinery of the Act cannot be employed for any other purpose at all. This contention has no substance whatsoever. The Preamble of the Act and section 3 itself of the Act clearly specify the different purposes for which the provisions of the Act can be put into force. The machinery of the Act cannot be employed for any other purpose at all. Unless it is established that the purposes mentioned in section 3 of the Act are not public purposes, no fault can be found with the Act. This contention of Mr. Dutt therefore fails. 9. The next point argued by Mr. Dutt is that the expression "so to do" occurring in section 3 (1) of the Act has reference to the act of requisition and not to the public purposes mentioned in the section and so provides scope for the Act being used for purposes other than those mentioned in the section. Reliance is placed on the observations in the case of (11) Khusaldas Advani v. Province of Bombay (1950) S.C. Rep. 621 at 679. But the wordings of the section which was construed in Khusaldas Advanis's case are different from the wordings of section 3 of the West Bengal Act and so the observations made in that case have no application in so far as section 3 of the W. B. Act is concerned. This contention is also therefore without substance. 10. The further point that has been raised by the learned Advocate for the petitioners is that there was no legislative competency in the Legislature which enacted the West Bengal Act II of 1948 to enact such a law inasmuch as there was no entry or item in the legislative lists dealing with requisition, in the Government of India Act, 1935 although there was the item No 9 in List II which dealt with compulsory acquisition of land. It is argued that the only power under which an Act dealing with requisition could be enacted by the Provincial legislature was pursuant to a Notification issued under Section 104 of the Government of India Act, 1935 conferring a power to enact legislation with regard to requisitioning of property, but as no such notification was issued, the Act of 1948 was an invalid Act and it was a still born law. Reference is made to (12) A.I.R. (1946) Bom. 216 at 244-247 [tan Bug v. Collector of Bombay]. Reference is made to (12) A.I.R. (1946) Bom. 216 at 244-247 [tan Bug v. Collector of Bombay]. The attention of the court has however been drawn to the Notification dated the 21st, October. 1947 published in the Gazette of India, Extraordinary, dated the 25th October, 1947 (page 1189) which shows that the power to make laws with regard to requisitioning of land was conferred under section 104 on all the Provincial legislatures by the Governor-General. So this contention of Mr. Dutt is also devoid of substance. 11. The last point argued by Mr. Dutt is that the legislature in extending the life of the West Bengal Act II of 1948 by Act XII of 1957 was not really conscious of what it was doing and as there was no effective expression of intention by the legislature the Act XII of 1957 did not effectively extend the life of the Act of 1948. It is pointed out that the West Bengal Ordinance v of 1957 extended the life of the Act up to 31st. March, 1958 but the Act XII of 1957 ignored the Ordinance altogether and purported to substitute the date 31st March, 1962 in place of 31st March. 1957 which had already been replaced by the date 31st March, 1958 as a result of the Ordinance. But a reference to section 7 of the Amending Act XII of 1957 makes it clear that the legislature was fully conscious of what it was doing. It did apply its mind to the Ordinance but as it made Act XII of 1957 retrospective in operation from 29th March, 1957, that is the date when the Ordinance V of 1957 was promulgated, the date 31st March, 1962 was substituted in place of 31st March, 1957. Thus the last contention of Mr. Dutt also fails. The case reported in A.I.R. (13) I. L. R. (1959) Mad. 285 at 292-293 (Ramu v. Mathuvira) to which reference was made by Mr. Dutt is of no assistance to the petitioner on this point. 12. Thus the last contention of Mr. Dutt also fails. The case reported in A.I.R. (13) I. L. R. (1959) Mad. 285 at 292-293 (Ramu v. Mathuvira) to which reference was made by Mr. Dutt is of no assistance to the petitioner on this point. 12. Before I part with this case I must point out that at one stage of this case I was inclined to hold in favour of the petitioners on the first point and I actually delivered a judgment on this first point but before I had actually signed this judgment, the Civil Rule No. 3560 of 1958 (Kamala Bala Dassi v. State of West Bengal) which involved the self-same point, came up for hearing before me and after hearing the argument of Mr. Majumdar, the learned Advocate for the State, I felt that all the relevant aspects and authorities had not been placed before me by the learned Advocates appearing in this case and so I set this case down for further hearing and after hearing the learned Advocates further on the first point and on the other points raised I have come to the conclusions which I have recorded in this judgment. It is further to be noted that Mr. Arun Kumar Dutt the learned Advocate for the petitioners drew the attention of the Court to the Report of the Joint Committee on the Constitution Fourth Amendment Bill as published in the Gazette of India, Extraordinary, dated the 31st March, 1955 and to the Statements of Objects and Reasons of the Constitution Fourth Amendment Act. 1955 as published in the Gazette of India Extraordinary, Part II, Sec. 1 No. 27 dated the 28th April, 1955 but 1 do not think that they advance the case of the petitioners in any way. In the result, this petition must fail. The Rule is discharged. The interim orders are vacated. There will be no order as to costs. 13. Mr. Dutt, the learned Advocate appearing for the petitioners at the conclusion of this judgment has asked for a certificate under Article 132 (1) of the Constitution of India on the ground that the case involves a substantial question of law as to the interpretation of the Constitution but it appears to me that in view of the judgments of the Supreme Court in Kochuni v. Slates of Madras and Kerala (3) A.I.R. 1960 SC. 1080 and in Barkya Thakur v. State of Bombay (6) A.I.R. 1960 S.C. 1203, it cannot be said that the question involved in this particular case is. any longer a substantial question of law as to the interpretation of the Constitution. The only thing that is to be now done is to interpret the principles laid down in these two cases for the purpose of ascertaining the true scope and implications of Article 19 (1) (f) in its co-relation with Article 31 (1) and Article 31 (2) of the Constitution of India, and to apply the same to the facts of a particular case. In the circumstances, the certificate asked for is refused. Let the operation of this order remain in abeyance for eight weeks from today, as prayed for.