JUDGMENT Arun K. Mukherjea J. This appeal has come to us upon a reference by a division Bench consisting of the late Chief Justice D. N. Sinha and myself who thought that this appeal is one which should be tried by a larger Bench. The reference was made under Rule I (ii) of Chapter 2, Part I of the Appellate Side Rules and the entire matter is now for determination by this Bench. The appeal arises in the following way: 2. The appellants are the owners of premises No. 104B, Lower Circular Road, Calcutta (hereinafter referred to as the said premises) which consists of a four storeyed building which had been leased out to one Kedarlal Sil. The first, second and third floors of the building were requisitioned by the Government of West Bengal in November 1952 in exercise of the powers of requisition vested in the Government under section 3 (1) of the West Bengal Premises Requisition and Control (Temporary provisions) Act. 1947 (hereinafter called "the said Act)". The lessee was offered a monthly compensation of Rs. 465/- by the Land Acquisition Collector. This was not, however, acceptable to the lessee and dispute regarding the quantum of compensation was referred to the arbitration of P. N. Lahiri, Additional District Judge, 24-parganas under the provisions of the said Act. The Arbitrator fixed the monthly compensation for the requisitioned portion of the building at Rs. 489-8-0. Thereafter, in July 1956 the lessee surrendered the lease to the petitioners. On 23 August, 1956 the appellants were served with a notice under section 4 (1) (b) of the said Act calling upon them to execute various repairs to the said premises. Particulars of the repairs are to be found in schedule (1) to the said notice and they consist of 18 items. It appears that the appellants sent their rent compensation bills to Government for the months of September 1956 to February 1957 under cover of a letter dated 10 April 1957. No payment was made in respect of these bills and on 26 April 1957 the Land Acquisition Collector wrote a letter to the appellant No. 1, Kartic Chandra De asking him to submit the rent compensation bills for the months of March and April 1957 "after showing therein a deduction of Rs.445.50P being the repair costs of the premises". No payment was made in respect of these bills and on 26 April 1957 the Land Acquisition Collector wrote a letter to the appellant No. 1, Kartic Chandra De asking him to submit the rent compensation bills for the months of March and April 1957 "after showing therein a deduction of Rs.445.50P being the repair costs of the premises". The appellant Kartic Chandra De was told that no payment was possible until and unless the desired adjusted bills were received. On 15 May 1957 Kartic Chandra De for himself and as trustee to the estate of Kamala Bala Dasi replied to the Land Acquisition Collector denying that the appellants were under any obligation to make the repairs which had been demanded earlier in the notice of 23 August 1956. The appellants refused to make a deduction of the alleged costs of repairs and asked that their bills for rent compensation should be paid up at once. In the same letter, the appellants made a demand from the Land Acquisition Collector of the charges of maintenance of operation of the electric water pump installed in the premises as well as charges for the common services including occupier's share of the Municipal taxes in respect of the requisitioned premises. He also complained about non-receipt of the compensation bills from September 1956 to February 1957. The Land Acquisition Collector, however, took no notice of this letter and, on the other hand, on 17 May 1957 served upon the appellants another notice under section 4 (1)(b)of the said Act calling upon them to make certain repairs to the unfiltered water supply system of the premises. The appellants thereupon made an application before this Court under Article 226 of the Constitution of India and asked for a writ of Mandamus calling upon the respondents to cancel or rescind the two notices dated 23 August 1956 and 17 May 1957. A Rule was issued and after the affidavits had been completed the application was heard by G. K. Mitter, J. The main contention of the appellants who were the petitioners in that application was that there was no legal obligation upon them to do the repairs which they had been called upon to execute by the Government under the provisions of the said Act. The main basis for this argument was the contention that the provisions of section 4 (1) (b) of the said Act are repugnant to the Constitution and void. G. K. Mitter, J. after hearing the parties dismissed the petition of the appellants who thereupon came on appeal from the decision of G. K. Mitter, J. As we have already said it was first heard by the late Chief Justice D. N. Sinha and myself and we made a reference of the matter to a larger Bench. 3. The arguments that have been advanced before us on behalf of the appellants were more or less the same as were advanced before G. K. Mitter, J. The main contention of the appellants was that clauses (b) and (c) of sub-section (1) of section 4 of the Act were unreasonable restrictions upon a person's right to acquire and hold a property and are, therefore, repugnant to Article 19 (1) (f) of the Constitution of India. Before we embark upon a discussion of the appellants' contentions before us it is necessary for us to indicate briefly the scheme of the said Act as welt as the specific provisions which are now being challenged as unconstitutional. 4. The said Act was originally a temporary Act which was enacted on first January, 1948 to provide for the requisition and control of premises in West Bengal. Subsequently the Act has not only been amended in many respects but also prolonged. Section 2, Clause (c) of the Act defines 'landlord' to mean any person who for the time being is receiving, or is entitled to receive, the rent of any premises whether on his own account, or on account or on behalf or for the benefit, of any other person, or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant". The 'tentant' is defined to mean "any person by whom, or on whose account, rent is or but for a special contract would be, payable for any premises and includes......a person continuing in possession after the termination of a tenancy in his favour". The 'tentant' is defined to mean "any person by whom, or on whose account, rent is or but for a special contract would be, payable for any premises and includes......a person continuing in possession after the termination of a tenancy in his favour". Sub-section (1) of section 3 of the Act gives power to the State Government to requisition any premises in any locality for any public purpose with or without any or all of the furniture, if any, in such premises. sub-section (4) of section 3 authorises the State Government to direct the Collector to take such further action as is necessary in connection with the requisitioning of the premises and to take possession of the premises requisitioned. Section 4 of the Act gives various power to the Collector and is in the following terms:- 4(1): Where any premises are requisitioned under this Act, the Collector may by notice in writing- (a) order the person in occupation of the premises, if any, to vacate the premises within a period of ten days from the service of the notice; (aa) order the landlord or the tenant, as the case may be, to remove the articles belonging to him, if any, and, where the premises are requisitioned without any furniture therein, such furniture, within a period of fifteen days from the service of the notice.; provided that the Collector may, for reasons to be recorded in writing, extend the said period up to two months; (b) order the landlord to execute such repairs as may be specified in the notice within such time as may be specified therein; (c) If a landlord fails to execute any repairs in pursuance of an order under clause (b) the Collector may cause the repairs specified in the order to be executed at the expense of the landlord and the cost thereof, may, without prejudice to any other mode of recovery, be deducted from the compensation payable. 5. We are more directly concerned with the provisions of clauses (b) and (c) of sub-section (1) of Section 4. 5. We are more directly concerned with the provisions of clauses (b) and (c) of sub-section (1) of Section 4. It will appear from these two clauses that the Collector has been given almost unfettered discretion to order the landlord to carry out any repairs which he may desire and that in the event of the landlord failing to comply with such an order the Collector may have the repairs done and then realise from the landlord the costs of such repairs. Section 5 provides that a landlord or any contractor, or workman or servant employed by the landlord shall not disturb any convenience or easement attached to any requisitioned premises except with the written consent of the Collector or except for the purposes of doing such repairs as the landlord is required to do under municipal requisition. Section 5A is very important for our purpose and we set out some of the provisions in extenso. 5A (1) The landlord of any premises requisitioned under this Act shall be bound at his own expenses to maintain therein such supplies and services as were provided by him for the premises immediately before the date of requisition and to make in the premises such repairs, not being petty repairs, as the Collector may consider necessary for the proper use and occupation thereof. Explanation: For the purposes of this section, "petty repairs" means repairs which do not cost more than ten rupees on anyone account in a period of twelve calendar months. (2) If, in respect of any premises, the Collector is satisfied that it is necessary to take any measures for the maintenance of any supply or service or for the making of any repairs which the landlord is, under sub-section (1), bound to maintain or make, the Collector may, by order served in the prescribed manner, require the landlord to take such measures within such time as may be specified in the order for maintaining the supply or service or for making the repairs, as the case may be. (3) If the landlord fails to comply with an order made by the Collector under sub-section (2), the Collector may himself, if the estimated cost of the proposed measures does not exceed one hundred and fifty rupees, or with the previous sanction of the State Government where it so exceeds cause the measures specified in the order to be taken and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the compensation payable to the landlord : Provided that the amount which may be so deducted in any year shall not exceed thirty-three and one-third per cent, of the total compensation payable to the landlord in respect of the premises for that year. 6. It is important for us to note that section 5A was inserted by the West Bengal Act XXIX of 1963. i.e. to say was inserted sometime after G. K. Mitter, J, had delivered his judgment in 1959. Section 6 of the Act deals with disposal of the premises after requisition. Under section 7 there are certain provisions giving power to the Collector to evict persons from the requisitioned premises for breach of terms of tenancy. Sections 8 and 9 provide for certain consequential matters in connection with the power given under section 7. Section 10 deals with release from requisition. Chapter III of the Act consisting of sections 11, 12, 13 and 14 contains provisions regarding compensation. Sec. II deals with the procedure for fixing compensation in respect of a requisitioned premises. Under Section 11, all persons interested in the premises which are requisitioned are entitled to certain compensation. The amount of compensation is to be fixed by agreement, if possible, If no such agreement can be reached, the State Government is to appoint the District Judge or the Additional District Judge as Arbitrator who will determine the amount according to certain principles mentioned in clauses (a), (b) and (c) of section 12. The matters to be considered are as follows: (a) The rent payable in respect of the premises including, the charges for use of furniture where such furniture are also requisitioned. (b) If, in consequences of the requisition of the premises the person interested is compelled to change his residence or place of business, then the reasonable expenses incidental to such change. (b) If, in consequences of the requisition of the premises the person interested is compelled to change his residence or place of business, then the reasonable expenses incidental to such change. (c) The damage or loss of income (if any) sustained by the person interested between the date of the order of requisition and the date when the Collector takes possession of the premises. Section 20 of the Act provides for penalties for contravention of any provisions of this Act or failure or omission to obey any order made therein. The penalty may extend to imprisonment for one year or an imposition of fine extending to Rs. 2000/- or both. Section 21 provides that no order made in the exercise of any power conferred by or under the Act shall be called in question in any court. Section 22 protects any action taken under the Act in good faith from suit or appeal or other legal proceedings. Section 24 confers powers on the State Government to make rules for carrying out the purposes of the Act. Incidentally no such rules seemed to have been framed and indeed no rules were placed before us at the time of hearing of the appeal. 7. Though we have given in brief the whole scheme of the Act, we are for the purpose of this appeal concerned only with sub-clauses (b) and (c) of sub-section (1) of section 4. It was argued before us that the provisions of the Act which make it obligatory on the landlord to execute at his expense whatever repairs are specified in the notice by the Collector and further provision that in the event of the landlord not carrying out such repairs the Collector may get the repairs done at his discretion and then realise the entire costs from the landlord either by deduction from the amount of compensation payable to the landlord or by other modes of recovery, are unreasonable restrictions on the landlord's right to hold and enjoy his property. G. K. Mitter. J. in his Lordship's judgment held that since the Act was a pre-Constitution Act it was not hit by Article 19 (1) (f) at all unless the restrictions it imposes are unreasonable. G. K. Mitter. J. in his Lordship's judgment held that since the Act was a pre-Constitution Act it was not hit by Article 19 (1) (f) at all unless the restrictions it imposes are unreasonable. Mitter, J. held that since the Act provides for payment of compensation and since it lays down the manner in which such compensation is to be ascertained and paid, there is nothing unjust or unreasonable in imposing an obligation upon the owner to execute necessary repairs to his own property. 8. After carefully considering all aspects of the matter we find ourselves unable to subscribe to the view expressed by his Lordship in his judgment. With great respect to his Lordship, we must say that the emphasis laid by the learned Judge on the payment of compensation is not quite correct. There is nothing in the Act which lays down anywhere that the landlord will get any compensation for the repairs that he effects or the repairs which are effected at his costs. The Act only provides for the manner of realising costs of repairs from the landlord. G. K. Mitter, J. observed in his Lordships Judgment, “I find nothing unjust in the owner being called upon to execute necessary repairs in his own property”. With great respect we may point out that the Act nowhere indicates that is only necessary repairs which will be done. Section 4 authorises the Collector by a notice in writing to order the landlord to execute such repairs as may be specified in the notice. Neither the question of necessity nor the reasonableness of the repairs finds any place in the Act. The whole matter is left entirely to the discretion of the Collector. The Collector may even require the landlord to replaster the entire house and to distemper all the walls. It is to be noticed that the new section 5A while requiring the landlord to maintain supplies and services provides that the landlord shall be bound at his awn expense to make in the premises such repairs, not being petty repairs, as the Collector may consider necessary far the proper use and occupation thereof. The words "necessary far proper use and occupation" introduce same kind of limitation on the power to be exercised by the Collector and also same canalisation of his power under this section. The words "necessary far proper use and occupation" introduce same kind of limitation on the power to be exercised by the Collector and also same canalisation of his power under this section. The provisions of clauses (b) and (c) of sub-section (1) of section 4 present a marked contrast in so far as there is absolutely no restriction an what the Collector may require the land lard to do under these clauses. Indeed the Act contains no guide lines at all as to what policy the Collector should follow in this matter. In considering whether the provisions of the Act are reasonable or not, one has to consider the extent of the power that is conferred upon the executive authorities and the manner in which such power is to be exercised. It is to be noticed that while the power given in clauses (b) and (c) are absolutely arbitrary and unrestricted the method of enforcement is also drastic. The Collector may require a landlord to execute very expensive and unreasonable repairs and then if the landlord is either unwilling or even unable to execute the repairs for financial disability the Collector may realise the casts from the compensation payable to the landlord and, since the costs may easily exceed the compensation payable to the landlord, proceed against the landlord by other modes of recovery. The fact that the landlord has not been given even a right of representation before the Collector as to the amount of repairs he is called upon to execute or as to the casts of it shows the extremely arbitrary nature of the powers that the Act has given to the Collector. The penalty provisions of the Act are wide enough to make it possible far the Collector to proceed against the landlord in a criminal action far noncompliance with the order to effect the repairs that are specified in his notice. It is not difficult to imagine that a landlord may be quite unable to execute repairs he is asked to execute. Even such a landlord would be liable to imprisonment. In our opinion, the Act provides competely arbitrary and unfettered powers to certain executive officers. There is no doubt at all that a landlord whose house is requisitioned will always be competely at the mercy of the Collector. Even such a landlord would be liable to imprisonment. In our opinion, the Act provides competely arbitrary and unfettered powers to certain executive officers. There is no doubt at all that a landlord whose house is requisitioned will always be competely at the mercy of the Collector. The Act does not contain a single provision to canalise the powers that have been given to the Collector. One could have understand if certain rules had been prescribed limiting the exercise of these powers by the Collector. But we have not been shown any such rules by the respondents and we presume no rules have been framed so far. 9. We have not the slightest doubt that the power conferred in clauses (b) and (c) of section 4(1) in so far as they impose an obligation an the landlord to effect whatever repairs he is asked to execute an pain of being made responsible far the casts and also liable to be imprisoned and fined for disobedience of the order is very unreasonable. 10. In this view of the matter we accept the appellant's contention that the provisions of clauses (b) and (c) of sub-section (1) of section 4 infringe the provisions of Article 19(1) (f) of the Constitution and are, therefore, invalid and void. In the result the two notices challenged by the appellants must be held also to have been invalid. We, therefore, pass the following order : 11. The appeal is allowed. The judgment and order dated 17 November 1959 of the learned trial Judge is set aside, we make the original rule issued upon the application of the appellants-petitioners absolute. Let a writ in the nature of Mandamus issue directing the respondents to rescind and cancel the notices dated 23 August 1956 and 17 May 1957. We make, however, no order as to costs. Sabyasachi Mukherji, J. : I agree M. M. Out, J. : I agree.