Paresh Chandra Chatterjee Vs. The
State of Assam & ANR [1961] INSC 241 (9 August 1961)
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
HIDAYATULLAH, M.
SHAH, J.C.
DAYAL, RAGHUBAR
CITATION: 1962 AIR 167 1962 SCR (3) 88
CITATOR INFO :
RF 1972 SC2301 (42) RF 1977 SC1825 (60)
ACT:
Requisition of Land-Tea Estate land
requisitioned-State Legislation-Constitutionality of If makes provisions for
payment of compensation--Assam Land (Requisition and Acquisition) Act, 1948
(Assam 25 of 1948) ss. 3,6,7,8-Tea Act, 1953(29 of 1953) 2,10,15-Constitution
of India, Arts 3.
31 (2), 372, Sch. VII, List I, Entry 52-Land
Acquisition Act, 1894 (1 of 1894), ss. 23, 24, 25.
HEADNOTE:
Certain lands out of the petitioner's tea
estate were requisitioned by the State under the Assam Land (Requisition and
Acquisition) Act, 1948. The petitioner challenged the constitutionality of the
Act on the ground-, that it was ultra vires the State Legislature in so far as
it provided for the requisition and acquisition of tea estates as tea industry
was a matter for exclusive legislation by Parliament and that it offended
Art.31(2) of the Constitution as it neither provided for payment of
compensation for property requisitioned nor specified the principles and the
manner in which compensation was to be determined.
Held, that the Act was not ultra vires the
Assam Legislature and was valid. The Act was valid when it was made in 1948
and, would by reason of Art. 372 of the Constitution, continue in force after
the commencement of the Constitution until altered, repealed or amended by a
competent legislature. The Act in essence provided only for requisition or
acquisition of lands in the public interest;
it had nothing to do with the tea industry.
The Tea Act, 1953, made by Parliament, which was mainly concerned with the
development of the tea industry and had nothing to do with the requisition and
acquisition of land, did not in any way alter, repeal or amend the Assam Act.
Further, the Assam Act did not offend Art. 31 (2) of the Constitution.
There were provisions in the Act for the
payment of agreed compensation and in case of disagreement for a reference to
the court, in which reference the provisions of the Land Acquisition Act, 1894,
would mutatis mutandis apply. Though the Land Acquisition Act, 1894, did not
provide for requisition of land its provisions relating to payment of
compensation for acquisition of land could be applied to requisition of land
after due alterations.
ORIGINAL JURISDICTION : Petitions Nos. 236
and 237 of 1960.
Petitions Under Art. 32 of the, Constitution
of India for enforcement of fundamental rights.
K. B. Bagchi and R. C. Dutta, forpetitioner.
A. V. Viswanatha Sastri and Naunit Lal, for
respondents.
1961. August 9. The Judgment of the Court was
deliverd by SUBBA RAO, J.-The Petitioner owns a tea estate called the
Urrunabund Tea Estate in village Udarbund in the District of Cachar in the
State of Assam. The extent of the Tea Estate is about 2682 acres. Out of the
said area, 553.73 acres are under tea cultivation and the rest, according to
the Petitioner, is utilised for the purpose of tea industry :and for purposes
connected with the said industry. The respondents do not admit this fact and
state in the counteraffidavit that the remaining area is lying fellow and
unutilised. On December 4,1959, the Deputy Commissioner of Cachar at Silchar,
respondent No. 2 issued a notification requisitioning an area of 183 bights of
land of the said Tea Estates, and by another notification dated December 5,
1959, he requisitioned another extent of 149 bighas 19 cottahs and 11 chattacks
of land of the said Tea Estate. The petitioner filed two petitions in this
Court under Art. 32 of the Constitution praying for the issue of writs of
mandamus directing the respondents to forbear from giving effect to the said
orders.
Learned counsel appearing for the petitioner
raised before us two contentions, namely, (i) tea industry is a matter for
exclusive legislation by the Parliament under Entry 52, List I of the Seventh
Schedule to the Constitution,, and therefore, the Assam Land (Requisition and
Acquisition), Act of 1948, hereinafter called the Act), in so 90 far as it
provides for the requisition and acquisition of a tea estate or lands
appertaining, to it, is ultravires the :State Legislature ; and (ii) the said
Act is also constitutionally void as it offends Art. 31(2) of the constitution,
inasmuch as it does not. either provide for payment of compensation' for the
property requisitioned or specify the principles on which and the manner in
which compensation is to be determined.
To appreciate the first contention, it is
necessary to state some facts. The Assam Land, (Requisition and Acquisition)
Act, 1948, was passed by the Assam Legislature and it received the assent of
the Governor on November 14, 1948.
It is a pre-Constitution Act, presumably made
under Entry 9, List II of the Seventh Schedule to the Government of India Act,
1935, which related to "'compulsory acquisition of land". Entry. 34,
List I of the Seventh Schedule to the said Act was ,'development of industries,
where development under Federal control is declared by Federal law to be
expedient in the public interest". It is not stated that there was any
Federal law declaring that the development of tea industry was expedient in the
public interest.
Therefore, at the time when the Act was
passed b the Assam Legislature, even on the assumption that the entry relating
to development of industries would cover legislation to prevent acquisition and
requisition of land forming part of a tea estate, there was no Federal law
declaring that development of tea industry was expedient in the public,
interest, with the result the Act was constitutionally valid at the time it was
made. If so the said law, by reason of Art. 372 of the Constitution, would
continue to be in force after the commencement of the Constitution until
altered, repealed or amended by a competent Legislature or other competent
authority. The Tea Act of 1953 was a Central Act which received the assent of
the resident on May 28, 1953.
It was passed by 91 the Parliament in
exercise of the power to make laws with respect to matters enumerated in Entry
52, List I of the Seventh-,.Schedule to the Constitution. Entry 52. reads,
"industries, the control of which by the Union is declared by Parliament
by law. to be expedient in the public interest".. Section 2 of the Tea Act
in specific terms declares that it was expedient in the public interest that
the Union should take under its control the tea industry.
The question, therefore, is not whether at
the time the Act was passed by the Legislature of the Province it had
constitutional competence to make it-there cannot be any doubt about its
competence at the time it was passed-but whether by reason of the passing of
the Tea Act, the Act was either altered, repealed or amended within the meaning
of Art.372. of the Constitution. This leads us to the consideration of the
scope of the both the Acts.
First taking the Act, the preamble shows that
it was passed to provide for the requisition and speedy acquisition of premises
and land for certain purposes. Section 3 confers on the Provincial Government a
power to requisition any land for the purpose of maintaining supplies and
services essential to the life of the community or for providing proper
facilities for accommodation, transport, 'communication, irrigation or
drainage. Section 4 enables the Government to require the land so requisitioned.
Section 6 provides for the release of the
land from requisition. Sections 7 and 8 prescribe the mode of awarding
compensation for requisition or acquisition of land, as the case may be. The
Act in essence provides only for requisition or acquisition of lands in public
interest.
It has nothing to do with tea industry, and
as for that matter any industry.
The Tea Act was enacted for a different,
purpose altogether.
The long title given in the Act shows that it
was enacted ""to provide for the control by the Union of the tea
industry, including 92 the control, in pursuance of the International Agreement
now in force, of the cultivation of tea in, and of the export of tea from, India
and for that purpose to establish a Tea Board and levy a customs duty on tea
exported from India" Chapter II provides for the establishment and
constitution of the Tea Board and a. 10 therein describes its duties and
functions; its functions are mainly intended to promote the development of the
tea industry, to regulate the production and extent of cultivation of tea, to
improve its quality and to regulate the internal and external trade in tea.
Chapter III prescribes the method of control over the extension of tea
cultivation and Ch. IV, the control over the export of tea and tea seeds.
Chapter V deals with finance, accounts and audit. Chapter VI regulates the
power of the Central Government to control price and distribution of tea or tea
waste. Chapter VII provides for miscellaneous matters such as licensing of
brokers, tea manufacturers etc., power of inspection and penalties for the
commission of certain offences created by the Act. It is, therefore, manifest
that the Tea Act mainly concerned with the development of the tea industry, and
it has nothing to do with the requisition or acquisition of lands, though the
said lands may from part of a tea estate or used for purposes incidental to the
tea industry. Indeed, s.15(1)(b) of the Tea Act provides for the contingency of
a part of a land on which tea is planted being compulsorily acquired under the
provisions of the Land Acquisition Act, 1894 (Act 1 of 1894) or by any other
law for the time being in force and no longer carries tea. In such an event,
the said section authorises the owner of the tea estate in Which such land is
situate to apply to the Board for permission to plant tea on land not planted
with tea. The Tea Act, therefore, not only does not expressly prohibit the
acquisition of any land, but also in express terms provided for the replacement
of the area acquired by other land for the purpose of tea plantation.
Though the 93 Tea Act does not in terms
visualize the contingency of requisition as distinguished from acquisition, we
cannot come to a different conclusion in respect of it, for the word
"acquisition" must have been used in a comprehensive sense so as to
include requisition also. That apart, the provisions of the Act do not
expressly or by necessary implication prohibit requisition of a land used
directly or incidentally for the purpose of plantation of tea. The rules made
under the Act only provide for the control of tea industry and they have no
bearing on the question of' requisition or acquisition of land. A comparative
study of both the Acts makes it clear that the two Acts deal with different
matters and were passed for different purposes.
The Tea Act in no sense of the term can be
described as one altering, repealing or amending the Act passed by the Assam
Legislature. This contention is, therefore, rejected.
There are no merits in the second contention
either.
Article 31(2) of the Constitution reads :
"No property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of a
law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or specifies the
principles on which, and the manner in which, the compensation is to be
determined and given;
and no such law shall be called in question
in any court on the ground that the compensation provided by that law is not
adequate." Under this Article, the law made for acquiring or
requisitioning a property is conditioned by two circumstances, namely, (i) the
existence of a public purpose, and (ii) the payment of compensation. If the law
provides for compensation and either fixes the amount of compensation or
specifies the principles on which, and the manner in which 94 the compensation
is to be determined, the. adequacy of the compensation is not justiciable,
:.The question is whether the Act satisfies the said conditions. The relevant
provisions of the Act dealing with compensation in the case of requisition of
land areas under.
Section 6. (1) Where any land requisitioned
under section 3 is not acquired and is to be released from requisition, it will
revert to the owner and the Collecter will deliver the possession of the land
to such owner or interested person who was recognised under section 7(3).
Section 7. (3) Where any land is
requisitioned under section 3 there shall be paid to every person interested
such compensation as may be agreed upon in writing between such person and the
Collector, in respect of (a) the requisition of such lands ; an (b) any damage
done during the period of requisition to such land other than what may have
been sustained by natural causes.
Section s. (1) The Collector shall in every
casex x x x x x (b) where there is anydisagreement with regard to the
compensation payable under sub-section (3) of section 7 between the Collector
and the person to whom possession of any land is delivered under section 6
reefer the matter to the decision of the Court.
(2) The provisions of the Land Acquisition
Act, 1894, shall mutatis, apply 95 in respect of an reference made to the Court
under subsection (1).
These provisions provide for the payment of
agreed compensation, and, in the case of disagreement between the Collector and
the person. to whom possession of any land is delivered under s.6, for a
reference to the Court. In respect of any such reference to the Court, the,
provisions of the land Acquisition Act, 1894, shall mutatis mutandis apply. The
argument is that in the matter of requisition, the Land Acquisition Act, 1894,
does not prescribe any principles for awarding compensation and, therefore, in
respect of requisition, either sub-s. (2) of s.8 is not applicable or becomes
otiose with the result that the Act does not lay down any principles on which
and manner in which the compensation is to be determined. This argument ignores
the expression "mutatis mutandis" in sub-s.(2) of s.8. The said
expression means "with due alteration of details". The Land
Acquisition Act applies only, to acquisition of land as distinguished from
requisition of land. Acquisition deprives the owner permanently of his land;
and requisition deprives him only of his right to present. possession. When the
necessity for which the land was requisitioned ceased, it may be made to revert
to him.
Sub-s.(2) of s. 8 of the Act makes the
provisions of the Land Acquisition Act, 1894, with due alterations of details
or appropriate changes apply in respect of any reference made to the Court.
Part III of the Land Acquisition' Act provides for a reference to the Court and
the procedure thereof. With appropriate modifications the provisions of that
Chapter. apply to a reference in respect of compensation for requisition.
Sections 23, 24 and 25 lay down the principles for ascertaining the amount of
compensation able to a person whose land has been acquired. We do not see any
difficulty in applying those principles for paying compensation in the 96
matter of requisition of land. While in the case of land acquired, the market
value of the land is ascertained, in the case of requisition of land, the
compensation to the owner for depriving him of his possession for a stated
period will be ascertained. It may be that appropriate changes in the
phraseology used in the said provisions may have to be made to apply the
principles underlying those provisions. To illustrate s.23 of the Land
Acquisition Act says :
(1) In determining the amount of. compensation
to be awarded for land acquired under this Act, the Court shall take into
consideration first, the market value of the land at the date of the
publication of the notification under Section 4, subsection (1);
secondly, the damage sustained by the person
interested, by reason of the taking of any standing crops or trees which may be
on the land at the time of the Collector's taking possession thereof, thirdly,
the damage if any sustained by the person interested, at the time of the
Collector's taking possession of the land, by reason of severing such land from
his other land;
fourthly, the damage if ally sustained by the
person interested, at the time of the Collector's taking possession of the
land, by reason of the acquisition injuriously affecting his other property,
movable or immovable, in any other manner, or his earnings;
fifthly if, in consequence of the land by the
Collector, the person interested is compelled to change his residence or place
:of business, the reasonable expenses if any incidental to such change; and 97
sixthly, the damage if any bona fide resulting from diminution of the profit s
of the land between the time of the publication of the declaration under
Section 6 and the time of The Controller's taking possession. of the land.
(2) In addition to the market value of the
land as above provided, the Court shall in every case' award a sum of fifteen
per centum on such market value, in consideration of the compulsory nature of
the acquisition.
If instead of the word
"acquisition" the word "requisition" is read, and instead
of the words "the market value of the land" the words "the
market value of the interest in the land" of which the owner has been
deprived are read, the two subsections of the section can, without any
difficulty, be applied to the determination of compensation for acquisition of
a land. So too, the other section can be applied. If the argument of learned
counsel for the petitioner be accepted, we would be attributing to the
Legislature an incongruity, namely, that while it provides principles of
compensation in the matter of acquisition, it omits to do so in the matter of
requisition, though in both the cases a reference to the Court is provided. For
the aforesaid reasons, we reject this contention.
No other point is raised. In the result, the
petitions fail and are dismissed with costs.
Petitions dismissed.
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