S. M. Nandy & Ors Vs. State of
West Bengal & Ors [1971] INSC 59 (19 February 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) MITTER,
G.K.
HEGDE, K.S.
GROVER, A.N.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 961 1971 SCR (3) 791 1971
SCC (1) 688
CITATOR INFO:
RF 1973 SC1461 (1041)
ACT:
West Bengal Land (Requisition and
Acquisition) Act, 1948-If ultra vires Constitution under Art. 19(1) (f) and
(5).
HEADNOTE:
On the question whether the West Bengal Land
(Requisition and Acquisition) Act, 1948, was ultra vires the Constitution under
Art. 19 (1) (f) read with 19(5).
HELD : The State of West Bengal was faced
with many emergent problems created by the partition of India and the impugned
Act was enacted in order 'to provide for requisitioning and speedy acquisition
of land under s. 3 for a number of public purposes mentioned therein. The
necessity for requisitioning must necessarily be left to the State Government.
Though there is no express provision to make a representation against an order
of requisition under s. 3(2) there is no bar to such a representation being
made and to its being considered by the State Government or appropriate
Governmental Authorities. If. however, any order is made for any collateral
purpose, or has been made for purposes not mentioned in s. 3 of the Act, or is
mala fide., it can always be challenged in a civil court. Under ss. 7(3) and
(4), 8 and 8A of the Act, fair compensation has been pro- vided for
requisitioning which is determinable by a civil court, if there is a dispute
regarding the amount, and ultimately by the High Court and this Court.
Therefore, the restrictions imposed by the impugned Act are not ,unreasonable.
[792 C, D; 794 D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 500, of 1967.
Appeal from the judgment and order dated January
13, 1965 of the Calcutta High Court in Appeal from Original Order No. 104 of
1963.
Arun Kumar Datta and D. N. Mukherjee, for the
appellants.
Niren De,-Attorney-General and P. K.
Chakravarti, for the respondent.
The Judgment of the Court was delivered by
Sikri, C.J. The following question has been referred to the Constitution Bench
under the proviso to art. 145(3) of the' Constitution :
"Whether the West Bengal Land
(Requisition and Acquisition) Act 1948 is ultra vires the Constitution under
art. 19(1)(f) read with art. 19(5)? 792 The learned counsel for the appellant,
Shri Arun Kumar Dutta, challenges the West Bengal Land (Requisition and
Acquisition) Act, 1948-hereinafter referred to as the impugned action the ground
that it does not impose reasonable restrictions with in art. 19(5) of the,
Constitution. He urges three ground in this respect. First, he says, that there
is no provision for a notice to the owner or the occupier of the property
before an order of requisition is passed, secondly, there is no provision for
an appeal against the order of requisition, and thirdly, a civil suit is barred
under s. 1 1 of the impugned Act.
In order to appreciate the points raised by
the learned counsel it is necessary to set out the scheme of the Act.
The impugned act was enacted in order to
provide for requisitioning and speedy acquisition of land for a number of
public purposes. These purposes are-: (1) maintaining supplies and services
essential to the life of the community; (2) provide proper facilities for transport,
communication, irrigation or drainage; and (3) creation of better living
conditions in urban or rural areas by the construction or re-construction of
dwelling places in such areas. The State of West Bengal,was faced with many
emergent problems created. by the partition of India, and this Act was designed
to meet these problems in a speedy manner. Section 3 enables the State
Government to requisition land for the purposes mentioned above. A Collector of
a district, an Additional District Magistrate or the First Land Acquisition
Collector, Calcutta, when authorised by the State Government in this behalf,
may exercise within his jurisdiction the powers of requisitioning conferred by
sub-s. (1). Sub-s. (2) of s. 3 provides for service of this order in the prescribed
manner on the owner of land and also on the occupier not being owner of land.
Under sub-s. (3) of S. 3 the Collector, or any person authorised by him in
writing in this behalf is entitled to execute the order in the manner mentioned
therein, if the order passed under sub-s. (2) is not complied with by any
person. There is nothing in the impugned Act which prevents a person on whom an
order has been served under sub-s. (2) to make a representation to the
Collector Or the State Government against the order of requisition Section 4
enables the State Government to use or deal with the land for the purposes
aforesaid.
We are not concerned with acquisition in this
case but we may mention that the State Government may acquire 'any land
requisitioned under the Act by publishing a notice in the official gazette that
such land is required for a public purpose referred to in sub.s. (1 ) of, s .
3.
Section 6 enables the St-ate Government to
derequisition or release from requisition any land.
793 The impugned Act provides for fair. Compensations
in respect, of the requisitioned land under 8. 7(3) and s.7(4). Sub-s. (3)
provides that where any land is requisitioned under S. 3, there. shall be paid
to every person interested compensation in respect. Of- (a) the, requisition of
such land; and (b) any damage done during the period of requisition to such
land other than what may have been sustained by natural causes.
Sub-s. (4) lays down the principles to be
followed in determining the compensation. If the Collector and the person
interested agree to the compensation the Collector is enabled to make an, award
ordering payment of the agreed compensation. If there is disagreement, sub-s.
(4) provides that the compensation payable shall, be the amount determined by
the- Court on reference made by the Collector under cl. (b) of sub-s. (1) of s.
8. Under s. 8 the Collector is obliged to refer the matter to the decision of
the Court if there is any disagreement with regard to compensation, and sub-s.
(2) of s. 8 prescribes the same procedure as the Land Acquisition Act, 1894, in
this regard, and the State Government is directed to apply the principles set
out in sub-s, (1) of s. 23 of that Act, and in cl. (a) of sub-s. (2) of s. 7 of
the, impugned Act, which provides "7(2)(a) When the compensation has been
deter- mined under subsection (1) the Collector shall make an award in
accordance with the principles set out in section 11 of the Land Acquisition
Act, 1894, and no amount referred to in sub-section (2) of section 23 of, that
Act, shall be included in the award :
Provided that interest at the rate of six per
centum per annum on the amount of compensation under the, award from the date
of the publication of the- 'notice, under sub-section (1a) of section 4 until
payment shall be included in the amount payable under the award." It seems
to us that these provisions give fair compensation and' enable a Civil Court to
determine the question in case of a dispute. An appeal lies under s. 8 A from
the award made by a Court on- a reference under s. 8 as if such award was an
Originals decree passed by the Court in exercise of its civil jurisdiction. Not
only therefore fair compensation is provided but the determination of the
amount of compensation rests with a Civil Court in case of a dispute. Although
the learned counsel took objection to the court which has to make an award, we
see nothing-- 794 wrong with the definition of the word "Court" the
word "Court" has been defined to mean:
" "Court" means a principal
Civil Court of original jurisdiction, and includes the Court of any Additional
Judge, Subordinate Judge or Munsif whom the State Government may appoint, by
name or by virtue of his office, to perform concurrently with any such
principal Civil Court, all or any of the functions of the Court under this Act
within any specified local limits and, in the case of a Munsif, up to the
limits of the pecuniary jurisdiction with which he is vested under section 19
of the Bengal, Agra and Assam Civil Courts Act, 1887." Section 1 1
provides that "save as otherwise expressly pro- vided in this Act, no
decision or order made in exercise of any power conferred by or under this Act
shall be called in question in any Court." It seems to us that if any
order is made for any collateral purpose or has been made for purposes not
mentioned in s. 3 or is mala fide, it can always be challenged.
We are, therefore, of the opinion that it is
difficult to hold that restrictions imposed by the impugned Act are
unreasonable. Fair compensation has been provided for requisitioning, which is
determinable by a Civil Court and ultimately by the High Court ,or the Supreme
Court.
Regarding the necessity for requisitioning it
must necessarily be left to the State Government. It is true that there is no
express provision to make a representation against an order of requisition but
there is no bar to a representation being made after an order is served under
s.3 (2) of the Act. We have no doubt that if the representation raises a point
which overrides the public purpose it would be favourably considered by the
State Government or other Government authorities as the case may be.
Accordingly the question referred to us is
answered in the negative. The case will now go back to the Division Bench for
disposal according to law.
V.P.S. Act held intra vires.
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