State of Bhopal & Ors Vs.
Champalal & Ors [1963] INSC 257 (19 December 1963)
19/12/1963 AYYANGAR, N.
RAJAGOPALA AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1965 AIR 124 1964 SCR (6) 35
CITATOR INFO:
RF 1968 SC1344 (8)
ACT:
Bhopal Reclamation and Development of Land
(Eradication of Kans) Act (Bhopal XIII of 1954) ss. 4, 7-If s. 4 is violative
of Art. 19(1)(f) of the Constitution-Possession by Reclamation officer-If
taking possession within Art. 31(2) of the Constitution-Demand for contribution
Legality.
HEADNOTE:
The respondents are owners of agricultural
land in Bhopal.
Their lands were taken possession of by the
appellant under a notification under s. 4 of the Bhopal Reclamation and Development
of Land (Eradication of Kans) Act. The object of this Act was to eradicate by
'deep tractorisation Kans weeds which are harmful to the productivity of land.
The Act provides for the taking possession of the land infested with kans,
after issuing notifications under s. 4 of the Act, and for the deep ploughing
of the land by tractors.
The expenses incurred by the Government were
to be apportioned among the owners in the area whose lands had been occupied
and ploughed. Demands were made on the respondents whose lands were occupied
and tractorised to pay the costs so apportioned. Thereupon they filed writ
petitions before the Judicial Commissioner challenging the legality of the Act
as well as the legality of the levy.
even assuming that the Act was valid. The
Judicial Commissioner allowed the petitions. Thereupon the State appealed to
this Court with certificate of fitness under Art. 133(1)(c) of the
Constitution.
In the appeals before this Court the same
contentions as those which were raised before the Judicial Commissioner were
canvassed.
36 Held. (i) The Act contains no provision
for the person interested having an opportunity to establish that the
particular land in which he was interested was not kans infested and therefore
did not stand in need of any eradication operation. Section 4(1) read in
conjunction with the power contained in s. 4(4) coupled with the absence of any
provision for entertaining objections would, in the circumstances of there
being admittedly patches of land in the same tehsil which had been cleared at
least in 1941 must be characterised as arbitrary and imposing an unreasonable
restriction on the right to hold and enjoy property within Art. 19(1)(f) of the
Constitution.
(ii) The possession of the Reclamation
Officer is exclusive and amounts to taking possession within Art. 31(2). The
shortness of the duration during which the owner is deprived of his possession
has no relevancy to the question whether there has been a taking of possession
of land by the State.
If the duration is short the compensation
payable might be small. The exemption from payment of land revenue 'during the
period of occupation by the State as provided in the proviso to s. 6(2) of the
Act cannot in any sense be treated as compensation for the deprivation of
possession, it only alleviates his loss. Section 4(1) read with s.6(1)(h) is
unconstitutional as violative of Art. 31(2).
(iii) Section 7 of the Act is mandatory and
that as admittedly there was no compliance with it no lawful demand could be
made for the contribution payable by any landhorder by the Central Government
or by the State Government at the instance of the Central Government without
recourse to the machinery provided by s. 7. The notices of demand were
therefore illegal.
(iv) The extension of the Madhya Pradesh Act
to the Bhopal area would be of no avail to the State because the Act was
brought into force prospectively and not retrospectively.
If therefore the demand when made was illegal
or invalid it cannot be sustained on the basis of the Madhya Pradesh Act.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 379 to 383 of 1959.
Appeals from the judgment and orders of the
ex-Judicial Commissioner's court, Bhopal (Now Madhya Pradesh High Court) dated
April 9, 30, 1956, in Misc. Civil Case Nos. 13 of 1954 and 21 and 35 of 1955,
dated April 9, 27, 1956 in Misc.
Civil Case No. 25 of 1955 and dated April 9,
17, 1956 in Misc. Civil Case No. 49 of 1955.
B. Sen, and I. N. Shroff, for the appellants.
M. C. Setalvad and M. S. Gupta, for respondents
(in C.A. No. 380/59).
K. K. fain, for respondents in (C.A. Nos.
381-383/59.) December 19, 1963. The Judgment of the Court was delivered by 37
AYYANGAR J.-These five appeals which have been consolidated for hearing, raise
for consideration principally two points:
(1) the constitutional validity of the Bhopal
Reclamation and Development of Lands (Eradication of Kans) Act, 1954 (Act XIII
of 1954) which will be hereafter referred to as the Apt, and (2) whether the
provisions of the Act, even if constitutionally valid, were complied with in
the case before us.
The Act the provisions of which we shall set
out and ,examine later, empowered the State Government to notify areas of the
State as "Kans infested areas" and on such notification officers of
the State were enabled to enter on the lands within the notified areas and
conduct deep ploughing tractorisation operation with a view to eradicate the
kans. We might mention even here that Kans are a species of weeds which infest
large areas of land in and ,around the former State of Bhopal now forming part
of Madhya Pradesh. The weeds are hardy, quick growing, rapidly expanding the
area of their infestation and sap the fertility from the soil and thus lead to
very poor yield of the land and if the growth is more extensive, practically
prevent any crops. The Act provided for the cost incurred in these eradication
operations being recovered from the farmers on whose lands the tractorisation
was effected.
Acting under the said law, considerable
extents of land in the former State of Bhopal were tractorised and demands were
made on the owners of the lands for the payment of the charges claimed as due.
Five of these farmers on whom these demands were made thereupon filed petitions
under Art. 226 before the Judicial Commissioner, Bhopal challenging the
constitutionality of the Act as well as the legality of the levy, even assuming
the law to be valid, and these petitions were allowed, and the learned Judicial
Commissioner holding the Act to be unconstitutional and the levy illegal,
granted the declaration and mandamus prayed for. The appellants thereafter
applied for and obtained from the Judicial Commissioner certificates of 38
fitness under Art. 133(1) (c) and have preferred the appeals which are now
before us.
We shall narrate a few facts which serve as a
background to the enactment of the legislation now impugned, and which would
also throw some light on some of the points urged by the respondents. It was
recognised as early as the first decade of this century that without the
eradication of Kans there could be no improvement in the return from the land
in the Bhopal and surrounding areas. The question was as to how this was to be
accomplished. With this end in view research was conducted by the Imperial
Council of Agricultural Research from about 1940 onwards, and as a result it
was concluded that the only method of eradicating the pestilential weed was by
deep ploughing of the land with tractors which would reach a sufficient depth
wherefrom the roots of the weed could be pulled out and exposed and thus
destroyed. This conclusion was accepted by the then Government of Bhopal who
between the years 1944-48 carried out experiments by tractorisation or deep
ploughing of lands in several areas of the State. The experiments demonstrated
that tractorisation would increase the outturn of crops.
This experimental ploughing was, however,
confined to particular villages and areas in the State but the results achieved
in them showed that if done systematically, deep ploughing by tractors would
help to eradicate the pest and increase the yield from the land. In order to
carry out this purpose an Ordinance XXXVIII of 1949 was promulgated on October
20, 1949 whose provisions were substantially identical with those contained in
the Act which we shall presently read. The notifications now impugned defining
the areas to undergo tractorisation (which included in them the places where
the lands of the respondents are situated) were issued under this Ordinance.
Similarly, the notices demanding payment of sums from the respondents whose
validity is likewise challenged were also issued under it' The Ordinance,
however, it is now admitted, was constitutionally incompetently promulgated and
had, therefore, no legal validity. All action, however, taken under the
Ordinance was validated by the Act and by its 39 s. 17 "all acts done,
notifications issued, authorisations, inquiries made, duties assigned, notices
served, or any action taken with respect to or on account of eradication of
kans during the period commencing October 20, 1949 and ending with the date of
the commencement of this Act etc. shall be as valid and operative as if they
had been done, issued, made, assigned, served or taken in accordance with the
law." The validity of this provision which was upheld by the Judicial
Commissioner is not challenged before us and therefore notwithstanding that the
notifications which will be referred to later were issued anterior to the
enactment of the Act, that circumstance is immaterial for considering their
effectiveness.
Before however, proceeding with the narration
of the facts and particularly with those touching the issue of the impugned
notifications and the notice of demand, we consider it would be convenient to
set out the relevant provisions of the Act, and in particular those whose
constitutional validity is challenged. It may be mentioned that the Act
received the assent of the President on November 7, 1954 and was published in
the State Gazette on November 25, 1954.
Its preamble recites that it was enacted
"to provide for the reclamation and development of lands by eradication of
kans weed in certain areas of the State of Bhopal." Section 2 contains the
definitions and cl. (c) defines a 'kans area' wherein eradication operations
are to be conducted under the provisions of the Act as meaning "the area
which the Government may, by notification, declare under sub-s. (1) of s. 4 to
be an area infested with kans." Section 3 empowers the Government to
appoint a Reclamation Officer. Section 4 is one of the main provisions whose
validity is challenged and has, therefore, to be set out in full "4. (1)
If the Government is of opinion that any area is infested with kans, it may, by
notification, declare such area, giving full particulars thereof, to be a kans
area for the purpose of this Act.
(2) Such notification shall be a sufficient
notice of the fact stated therein to all persons holding 40 or having interest
in the land comprised in such area.
(3) The Reclamation Officer shall give
publicity to the notification issued under sub-section (1) in such manner as he
deems fit.
(4) The Reclamation Officer may enter upon
any land in such area and take possession thereof for such period as may be
necessary for the purpose of eradication of k ans from such area and carry on
other ancillary subsidiary operations therein." Section 5 provides for the
constitution of a Reclamation Board-a provision to which we shall have occasion
to refer at a later stage. Section 6 deals with the consequences of a notification
under s. 4(1) and with the matters which take place thereon and is thus
intimately connected with s. 4 and we shall therefore set it out in full :
"6. (1) On issue of a notification under
subsection (1) of section 4, the Reclamation Officer and his subordinates and
workmen, authorised by him in this behalf, may, notwithstanding the provisions
of the Bhopal Land Revenue Act, 1932, (TV of 1932),(a) enter upon any land in
the kans area for the purpose of survey and any other ancillary purpose, and
(b) taken possession of the whole or any part of the kans area and carry on
eradicating and other ancillary and subsidiary operations therein.
(2) No person shall use the land so notified
for any purpose till such date as the Reclamation Officer, after the completion
of the reclamation and demarcation operations, may, by notification in the
official Gazette, specify for the restoration of the same to the person who
was, on the date of taking over, in lawful 41 possession of the same or was
entitled to such possession:
Provided that no revenue shall be charged
from a person whose land has been taken over by the Reclamation Officer under
this section in respect of the period during which the land has so remained in
the possession of the said Officer.
(3) For the purposes of this section, any
reference to the person entitled to take possession of land notified above,
shall, if he is dead, be deemed to include a reference to his successors in
interest.
(4) The notification mentioned in subsection
(2), shall be final, and full discharge of the Government from all liability in
respect of such delivery of possession, and the possession of the land shall,
on the date specified in this behalf, be deemed to have been delivered by the
Government to the person entitled to it." Section 7 provides the machinery
for ascertaining the share of the cost which has to be paid by persons having
interest in the land who have benefited by the tractorisation ,and it is the
procedure contained in this section that is stated to have been departed from
in making the demands on the respondents by reason of which the respondents
successfully resisted the demands made on them. Section 7 runs:
"7. (1) The total expenditure incurred,
or to be incurred, by the Government on eradicating or other ancillary or
subsidiary operations in the kans area, shall be equitably apportioned by the
Reclamation Board between the several holders of, or persons having interest in
the lands comprised in the Kans area.
(2) Every person holding, or having interest
in the land in which eradicating or other ancillary, or subsidiary operations
have been carried out or intended to be carried on, shall be liable to pay the
costs of such operations on his land.
42 (3) The Reclamation officer shall fix the
amount of costs payable by each holder or other person having interest in the
land comprised in the kansa area. The amount so fixed shall be charged on the
land to which it relates, and shall not be called in question in any suit or
other legal proceedings.
(4) The Reclamation Officer shall also
determine whether the amount so apportioned shall be paid by the person
holding, or having interest in the land in one lump sum or by such annual installments
as he may fix for the amount.
(5) The payment mentioned in sub-section (4),
may be made in cash or agricultural produce of such land or both.
(6) If the actual cost of the eradicating or
other subsidiary or ancillary operations exceeds or falls short of the amount
to be payable by a holder of, or other person having interest in, the land, the
difference shall be returned to, or recovered from, the person concerned, as
the case may be." The machinery for collection is contained in s. 8 and it
is enough to point out that it makes provision for the Reclamation Officer serving
on the person holding or having interest in the land in which eradication
operations have been carried out a notice of demand which in the context would
mean such sum as has been determined under s. 7 and for the recovery of the
said sum as an arrear of land revenue, Section 9 makes provision for the
payment of compensation and it is one of the sections of the Act which have
been struck down for unreasonableness. It enacts:
"9. (1) Any person may, within thirty
days from the date of the taking over of the land under section 6, apply to the
Reclamation Board for payment of compensation for destruction of or damage to
any plant, tree, building, hut or-other structure in his land as a result of
the eradicating operation.
43 (2) On receipt of such application, the
Reclamation Board may make such inquiry as it deems fit, and, if in its
opinion, the payment of compensation is justified, it may grant such
compensation as it deems fit.
(3) The decision of the Reclamation Board
shall be final in all respects, and shall not be called in question in any
court of law." Though some of the other sections of the Act have been
dealt with and examined by the learned Judicial Commissioner, they do not bear
materially on the points which have been urged before us in the appeals and we
do not therefore, consider it necessary to refer to them.
To resume the narration of the facts leading
to the filing of these petitions, it would suffice to mention those relating to
any one of these petitions, as those of the others are substantially similar.
We shall refer to the facts in Case 18 of 1954 from which C.A. 379 of 1959 has
arisen as illustrative of the rest. On January 18, 1951 a notification was
issued by the Chief Commissioner under s.
4(1) of the Ordinance declaring all the
villages in seven tehsils which were set out in it as "Kans areas"
and this was published in the Gazette on January 27, 1951. This notification
was amended by a further notification dated May 30, 1951 by which all the
villages in two more tehsils were added to the original seven. Among these
newly added was Tehsil Huzur in which the lands of the petitioners who number
thirty, were situate. Needless to add that this amendment was also published in
the Gazette. Subsequently on November 21, 1952, there was a notification
stating inter alia that 10 named villages in Tehsil Huzur were being taken over
for tractorisation operations "during the ensuing season" and after
this these operations were conducted on the lands of the petitioners.
Thereafter on February 4, 1953, a communication was addressed by the Land
Reclamation Officer, Bhopal to the Tahsildar, Huzur among other Tahsils which
read, to quote the material passage:
"I forward herewith demand lists of
villages of your Tehsil in respect of the tractorisation charges for the season
1951-52.
Pending final decision 44 regarding exact
rates of bush clearance and ploughing, it has been found advisable that
collection may be made at the rate of Rs. 10, per acre towards first instalment
of the demand. As soon as the rates are finalised intimation as to the exact
rate will b e sent to you to adjust the account likewise." This was
finalised at a later date on receipt of intimation from the Government of India
on August 12, 1953, but the figure was modified slightly in March 1954 and
again in October, 1954 by a revision to a lower figure but nothing 'turns on
the modifications, because the challenge in the petitions to the demand does
not turn on the quantum of the levy or its unreasonableness quoad the service
rendered.
When demands were made on the petitioners for
the payment of the first installment at Rs. 10 per acre they filed the petition
18 of 1954 and sought relief primarily by way of:
(1) a declaration that the Ordinance and the
Act which repealed and re-enacted it with retrospective effect were
unconstitutional and void, (2) a permanent injunction restraining the State and
its authorities from enforcing the demands on them. The petition also prayed
for certain other reliefs which were not granted and are no longer material.
The Judicial Commissioner substantially
allowed the petition and granted the principal reliefs sought and hence this
appeal. As stated earlier, the contents of the other petitions are
substantially the same, and all these five were dealt with by a common judgment
and so it is unnecessary to set them out.
Four points were urged by Mr. Sen-learned
counsel for the appellant: (1 ) That the learned Judicial Commissioner was
wrong in holding that the principal and operative sections of the Act were
unconstitutional and void,(2) that the procedure prescribed by ss. 7 and 8 of
the Act for enabling the demand to be made was substantially complied with,(3)
that even if the Act be unconstitutional, still it must be taken to have been
validated by the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act,
1957 by which the Madhya Pradesh Act, whose constitutional validity was not
open to challenge had been extended to the Bhopal 45 area, (4) that in any
event, having regard to the benefit that had been conferred on the farmers by
the tractorisation operations, the charges which were demanded, could be
recovered under s. 70 of the Indian Contract Act.
We shall deal with these submissions in that
order.
The first of the sections of the Act which
has been held unconstitutional is s. 4(1). Under it would be seen, the
Government is empowered, by notification, to declare areas as 'kans areas'
"if it is of opinion that any area is infested with kans". Two points
were urged in support of the challenge to the validity of this provision and
both of them have been accepted by the learned Judicial Commissioner. They
were, first, that the provision constituted an excessive delegation of
legislative power, and, secondly, that the power thus conferred was arbitrary
and constituted an unreasonable restriction on the right to hold and enjoy
property and therefore violative of Arts. 14 and 19 (1 ) (f) of the
Constitution. We agree with Mr. Sen that s. 4 (1) does not suffer from the vice
of excessive delegation of legislative power. The preamble and long title of
the Act make it clear that the enactment is one "for the reclamation and
development of lands by the eradication of kans weed in certain areas in the
State", the purpose being specified as the eradication of kans in areas
infested with it. The legislative policy behind the provision is thus writ
large, and what remains and is left to the executive is to carry out that
mandate and give effect to the law so as to achieve the purposes 'of the Act.
'The areas infested' is manifestly not
capable of legislative definition but must obviously be left to the executive
to determine having regard to the intensity of the weed infestation and its
distribution. There is thus legislative guidance offered of the criteria which
must be borne in mind by the Government before any area is declared as a 'kans
area' and if the determination of the particular area is left to the executive
it cannot be said to be any delegation of legislative power at all.
The second point, however, about the power
conferred being unreasonable in the context of the other provisions of the Act
deserves more serious consideration. In this connection it is necessary to
notice certain admitted facts.
46 The notification under s. 4(1) dated
January 18, 1951, read in conjunction with the addition made by a further notification
dated May 30, 1951 already referred to, declared all the villages in 9 tehsils
which were named to be 'kans areas'. It was the complaint of the respondents
who were the petitioners in the writ petitions that their lands were not kans
infested and that the notification was issued and the subsequent proceedings
there under taken without giving them an opportunity of establishing that fact.
No doubt, it was the case of the State that this complaint was not correct and
that the lands were, in fact, kans infested. In this connection, however, it is
necessary to refer to one fact which is a matter of admission. Among the
affidavits filed in support of the written statement by the State was one by
Syed Majid Ali who had conducted previous experiments under the Imperial
Council of Agricultural Research and who was one of those on whose
recommendation it was decided that tractorisation was the best method of
eradicating kans. He stated in paragraph 9 of his affidavit:
"Before I started my experiments in the
State of Bhopal a statement showing kans infestation tehsil-wise had already
been prepared by the State authorities and it is filed in the case.
A corresponding map was also prepared and
that is also filed in the case." The map that was prepared then and which
was filed in the case showed the lands in the State divided into three groups
of areas dependent on the intensity of the kans infestation and these three
groups of areas were differently coloured, The highest intensity comprised
areas in which the infestation was 60 per cent, those between 40--60 per cent
formed the second class, while those below 40 per cent formed the last. A
glance at the map which is part of the record before us shows an uniform
colouring throughout these three groups of areas which is apt to indicate that
in all the tehsils which are included in any of these three groups there was
uniform infestation to the percentages indicated.
Mr. Sen strongly relied on this map as
establishing this.
But that this is not a correct picture of the
spread of infestation -appears to be made out by the statement prepared in July
47 1941 which is the document first referred to by Syed Majid Ali. In this
statement which is marked as Ex. N/4 the State is divided into two
districts-one western and the other eastern-the former comprising 7 tehsils and
the latter ll. It gives a break-up of the occupied and the unoccupied land, the
area of each tehsil-wise, the area which has been cleared of kans in each
tehsil and the area still remaining similarly infested. Taking the 1st of the
tehsils which is included in the notification dated January 18, 1951Nasrullaganjit
is seen from Ex. N/4 that of the occupied land 8478-86 acres were kans infested
while 2101603 acres were areas which had been cleared. It might not be clear
from these figures whether the areas cleared were merely some isolated fields
or larger contiguous patches, but one thing is clear that the entire tehsil, or
rather the entire occupied land in the tehsil was not kans infested as the map
would indicate, but there were considerable portions in which eradication
operations had been carried out already.
It is possible that between the years 1941
when this statement was prepared and January 1951 when the notification under
s. 4(1) of the Act was issued, lands which had once been cleared might again
have become infested but anyway it would show that before there was any
interference with the right of the farmers to their property they should have
been given an opportunity to prove to the satisfaction of the authorities that
their land was not kans infested and therefore did not need tractorisation. The
provision contained in s. 4 (4) under which the Reclamation Officer is empowered
to enter upon any land in the area so declared under s. 4( 1) and commence and
complete eradication operations has also to be taken into account in this
context. If at least at the stage when the Reclamation Officer selected the
particular land in which the eradication operation was to be conducted there
was notice required to be given to the owner or the occupier, in order to give
him an opportunity to establish that notwithstanding his land being included in
the notification under s. 4(1) the particular land in which he was interested
was not kans infested and therefore did not stand in need of any eradication
operation, the provision in s. 4(1) 'would not have been open to serious
challenge. But even at the second stage when the officer was empowered to select
48 the land for the purpose of giving effect to the provisions of the Act and
conduct tractorisation operations thereon, the Act contains no provision for
the persons interested having such an opportunity. We consider, therefore, that
s. 4(1). read in conjunction with the power contained in s. 4(4) coupled with
the absence of any provision for entertaining objections would, in the
circumstances of there being admittedly patches of land in the same tehsil
which had bead cleared at least in 1941 must be characterised as arbitrary and
imposing an unreasonable restriction on the right to hold and enjoy property
within Art. 19(1) (f). The operation of the several sub-sections of s. 6 to
which we shall immediately make reference reinforces our conclusion as regards
the unconstitutionality of the provisions of s.
4(1) read with, s. 4(4). Under s. 6(1)(b)
immediately on the issue of a notification under s. 4(1) the Reclamation
Officer is empowered to take possession of the whole or any part of "the
kans area" and "carry on eradicating and other ancillary and
subsidiary operations therein." Now, in regard to this it was submitted
that this provision under which the land-owner is deprived of the possession of
his property is unconstitutional as violative of Art.. 31 (2) as it originally
stood before the 4th amendment. That Article then ran:
"No property, movable or immovable....
shall be taken possession of or acquired for public purposes under any law
authorising the taking of such possession.... unless the law provides for
compensation for the property taken possession of.... 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." The argument
urged on behalf of the respondents and which the learned Judicial Commissioner
accepted was based on the circumstance that no compensation was provided for
the taking possession by the State or an officer acting on its behalf, of the
lands notified under s. 4(1) and (4). Mr.
Sen, however, submitted two answers to this
objection. The first was that the duration during which the owner was 49
deprived of possession, if at all, was so short as not to amount to
"taking possession" within Art. 31 (2). This was ,also presented in a
slightly modified form by stating that there was in reality no taking of
possession at all but that the Reclamation Officer merely entered on the land
and carried out the tractorisation operation without disturbing the possession
of the owner. The argument that the landowner is not disturbed in his
possession by the tractorisation operations and that he is not deprived of the
same by the operation of the Act, proceeds upon overlooking the provisions
which directly point to possession of the land statutorily passing to the
Reclamation authorities on the issue of the notifications. Section 6(2) enacts
a ban on the owner using the land notified under s. 4(1) until there is in
effect a renotification of that land by the Reclamation Officer and the lawful possession
of the land is restored to the owner. In the circumstances, it is clear that
the possession of the Reclamation Officer is exclusive and amounts to taking
possession within Art. 31(2). Nor is there any force in the point about the
shortness of the duration during which the owner is deprived of possession or
rather the period during which the State through the Reclamation Officer is in
possession of the land.' As regards this it might be pointed out that the Act
itself specifies no period of time within which the reclamation should be
completed. Nor are we satisfied that the mere fact that this duration is not
considerable has any materiality or relevance for considering whether there has
been a taking possession of the land by the State. If the period during which
the owner is deprived of possession be short the compensation payable to him
might be less but that does not, in any manner, affect the reality of the dispossession
or rather the taking of possession by the State within the meaning of Art.
31(2). We thus reach the position that there has been a taking possession by
the State of the immovable property of the owner within the Article.
The second submission related to the question
which arises whether "the law provides for compensation for the property
taken possession of", for it was not disputed that if it did not, the law
providing for the "taking" would be unconstitutional. In regard to
this Mr. Sen relied on the proviso to s. 6(2) as providing compensation. That
proviso, 134-159 S.C.-4.
50 it would be recollected, enacted that
during the period when the land was in the possession of Government for the
conduct of the eradication operation, no land revenue would be charged to the
land owner. Mr. Sen urged that there was in law an obligation cast upon the
owner to pay land revenue and the foregoing of this payment during the period
when the owner was out of possession would, in the eye of law, amount to
compensation and therefore satisfied the requirements of Art. 31 (2) as it
originally stood. We consider this, wholly without substance. In the first
place, the framers of the Act knew what compensation was and they made provision
for compensation in s. 9 in respect of the injury suffered by the owner. In the
context of this provision and its language they could certainly not be treated
as considering the abstention from charging land revenue during the period when
the land was not available to the owner as compensation. Secondly, even a
cursory examination would demonstrate the fallacy underlying this submission.
If the exemption from payment of land revenue should suffice as compensation
for deprivation of possession for a time, it would follow that for possession
of property being taken for ever or say for 99 years exemption from land revenue
for that period would suffice as compensation. This would illustrate the utter
untenability of this argument.
Normally speaking, land revenue is charged on
the basis that the owner is free under the law to utilise the land for
profitable use. When, therefore, he is deprived of the opportunity of so
utilising it, the State exempts him from payment of the same. This can in no
sense be treated as compensation for the deprivation of possession. Besides,
the theory of land revenue is that it represents a proportion of the income
which the owner derives from the land, and is in theory fixed on the basis of
allowing him some surplus over the State's share. When by deprivation of
possession he is prevented from making any income from the land, the exemption
from payment of land revenue, offers him no compensation, only it alleviates
his loss. In this view it is unnecessary for us to consider the question
whether under Art. 31(2) as it stood at the relevant date, the compensation
even if provided need be adequate and how far the adequacy could be
justiciable. We have, therefore, no hesitation in saying that s. 4(1) read 51
with s. 6(1)(b) is unconstitutional as violative of Art. 31 (2).
The learned Judicial Commissioner has also
struck down s. 6(2) as unconstitutional and Mr. Sen did not question the
correctness of this conclusion. There are other minor points about s. 6 which
also have been held to render that section unconstitutional but to these it is
not necessary to refer in the view that we have expressed about the provisions
we have discussed. If the appellant State is unable to sustain the validity of
ss. 4 and 6, which are the key provisions of the Act, Mr. Sen conceded that it
would not be necessary to consider the validity of the other provision and we
accordingly refrain from doing so.
This takes us to the second principal ground
on which the respondents have succeeded, viz., that even if the Act be valid,
the provisions of s. 7 were not complied with and as a result the demand made
on the respondents for payment of an installment of the tractorisation charges
was unauthorised and illegal. It was Mr. Sen's contention that the learned
Judicial Commissioner was in error in upholding this contention. The point
arises this way. Section 5 makes provision for the constitution of a
Reclamation Board. The Board consisted at the relevant date of the Development
Commissioner as the Chairman, six non-official members who were members of the
Legislative Assembly of the State besides five other officials with the
Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts
this Board with the duty first of ascertaining the total expenditure incurred,
or to be incurred, and then to equitably apportion it among those land-owners
on whose lands eradication operations have been or would be conducted. Now, in
the present case the facts were that the Central Government incurred the
expenditure in the first instance by utilising the Central Tractor
Organisation-a body set up by the Central Government and then intimated to the
State Government both the total amount which they had expended and which was
repayable to them by the State, as well as the manner in which the amount thus
recoverable from the State was to be allocated among the several landholders.
It is common ground that the Reclamation Board never met and consequently
neither computed the total expenditure incurred or 52 to be incurred for the
eradication operations, nor did it make the allocation among the holders of the
lands -on which eradication operations were conducted. After referring to these
features the respondents pointed out in their petitions that, without the
requirements of s. 7 being satisfied, they were informed of the contents of a
letter dated October 29, 1954 from an Under Secretary :to the Government of
India to the Secretary to the Government of Bhopal-Development Department, in
which the amount to be recovered from the land-owners for the deep ploughing of
their lands was mentioned, which amount, the revenue officials of the State
were directed to recover. It is now admitted that this is the basis on which
the impugned demands were made on the respondents. The learned Judicial
Commissioner held that the terms of s. 7 were mandatory and that unless the
mind of the Reclamation Board was brought to bear on the question, and the
Board computed the total expenditure as well as the proper allocation of this
sum among the several land-owners no lawful demand could be made under s. 8,
nor could the same be recovered from the respondents. We find ourselves in
entire agreement with the learned Judicial Commissioner in holding (1) that the
procedure prescribed by s. 7 is mandatory and (2) that as admittedly there was
no compliance with it no lawful demand could be made for the contribution
payable by any landholder by the Central Government or by the State Government
at the instance of the Central Government without recourse to the machinery
provided by s. 7. The notices of demand were, therefore, properly quashed as
illegal.
It is only necessary to add that the validity
of these notices of demand would arise only in the event of the crucial
provisions of the Act-s. 4 and s. 6-being valid and in view of our conclusion
as regards the constitutional validity of those provisions, even in the event
of the terms of s. 7 being complied with there could be no lawful demand made
on the respondents.
There remain two minor points which were
urged by Mr. Sen but neither of these need detain us long. The first of these
was the effect on the present demand of the Madhya Pradesh Reclamation of Lands
(Extension to Bhopal) Act, 53 1937. By this enactment the Madhya Pradesh Act
which is somewhat analogous to but not identical with the Act now under
consideration was extended to the Bhopal area. The argument of Mr. Sen was that
by virtue of this extension of the Madhya Pradesh Act, even if the Bhopal Act
were invalid, the demand made could be iustifiel as made under the Madhya
Pradesh Act. But the extension of the Act, in the present case, is of no avail to
the appellant because that Act was brought into force only prospectively and
not retrospectively. If, therefore, the demand when made was illegal or invalid
it cannot be sustained on the basis of the Madhava Pradesh Act. In the
circumstances, it is unnecessary for us to consider the provisions of the
Madhya Pradesh Act to find out how far, if retrospective, they would affect the
validity of the demand.
The last of the points urged was that even if
the Act was invalid and the demand could not be justified as a legal demand
having regard to the terms of s. 7, still as eradication operations which are
beneficial in their nature had been conducted on the lands of the respondents
which had derived benefit there from, lands which the respondents still retained,
the provisions of s. 70 of the Indian Contract Act were attracted and that on
the basis of a quasi contract which that section postulates, the claim for
compensation might be sustained. This raises larger questions for which there
might be sufficient answers, but in view of the circumstances that it was not
pleaded as a defence to the writ petitions before the Judicial Commissioner nor
put forward in arguments before him, nor in the grounds of appeal or even in
the statement of the case filed in this Court, we have not thought it proper to
permit learned counsel to urge the ground at this stage.
The facts of the other appeals being
substantially similar, and the points arising in them being identical. they do
not require to be dealt with separately. What we have stated regarding Civil
Appeal 379 of 1959 would equally apply to them.
The appeals fail and are dismissed with
costs-one hearing fee, Appeals dismissed.
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