1. Land acquisition for immigrant settlement under West Bengal Land Development and Planning Act — emergency possession taken under Section 7 — dispute over necessity of framing development scheme. (Para 2 )
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1960 Supreme(SC) 183
SUPREME COURT OF INDIA
29th August 1960.
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO AND K.N. WANCHOO, JJ.
State of W.B. and others, Appellants
Versus
Naba Kumar Seal, Respondent.
Civil Appeal No. 212 of 1955.
Advocates Appeared
Mr. B. Sen, Sr. Advocate, (Mr. P. K. Bose, Advocate, with him), for Appellants; Mr. P. K. Ghosh, Advocate, for Respondent. Mr. S. C. Mazumdar, Advocate, for Intervener.
Advocates:
B.SEN, P.K.BOSH, P.K.GHOSH, S.C.MAJUMDER
B.SEN, P.K.BOSH, P.K.GHOSH, S.C.MAJUMDER
In emergency land acquisitions, the power to acquire land without a development scheme dispenses with the statutory necessity of framing one. Requiring a scheme after taking possession would defeat the purpose of the urgency provision.
Headnote:(A) Land Development and Planning Act - Sections 5, 6 and 7 - Land Acquisition Act - Emergency acquisition - Necessity of development scheme - In cases of urgency, if the State Government is satisfied that the preparation of a development scheme is likely to be delayed, it may make a declaration that land is needed for a public purpose even though no development scheme has been prepared or sanctioned - Section 7 completely dispenses with the statutory necessity of preparing a scheme of development as envisaged in Section 5 in cases where the Government decides to proceed without waiting for such a scheme - To insist upon the preparation of a development scheme after taking possession in cases of urgency would defeat the very purpose of declaring urgency and taking possession. (Paras 7, 8, 9)
(B) Constitution of India - Article 31B - Ninth Schedule - Acts and Regulations specified in the Ninth Schedule are immune from attacks based on the provisions of Part III of the Constitution relating to fundamental rights. (Para 11)
Facts of the case:
The respondent owned land which was notified as likely to be needed for public purposes. The State Government, exercising emergency powers, issued a declaration and took possession of the land without framing a development scheme. The High Court held that while emergency possession was permissible, the Government was still required to frame a development scheme after taking possession. The State Government appealed this decision.
Findings of Court:
The High Court erred in issuing a mandamus requiring the framing of a development scheme. Section 7 of the Act allows for acquisition without a development scheme in urgent cases, and this dispensement is absolute. Furthermore, the Act is protected by the Ninth Schedule of the Constitution.
Issues: Whether the State Government is obligated to frame a development scheme after taking possession of land under emergency provisions, and whether such emergency provisions are unconstitutional.
Ratio Decidendi: Section 7 acts as a proviso to Section 6, allowing the government to bypass the requirement of a development scheme under Section 5 in urgent cases. Once the declaration is made and possession taken, the purpose of urgency is served; requiring a subsequent scheme would render the emergency provision otiose and defeat the objective of speedy acquisition.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether emergency powers under Section 7 dispense with the requirement to frame a development scheme under Section 5 — challenge to the Act's constitutionality under Articles 14, 19, and 31. (Para 4 , 5 )
3. Section 7 allows acquisition without a development scheme in urgent cases; requiring a scheme post-possession would defeat the purpose of emergency provisions and the Act's objectives. (Para 6 , 8 , 9 )
4. Section 7 of the West Bengal Land Development and Planning Act, 1948, completely dispenses with the statutory necessity of preparing a development scheme in cases of urgency. (Para 8 )
5. Appeal allowed — High Court judgment set aside — petition challenging the vires of the Act dismissed. (Para 12 )
6. Does Section 7 of the West Bengal Land Development and Planning Act require a development scheme to be framed after emergency possession is taken?
No. Section 7 dispenses with the statutory necessity of preparing a development scheme under Section 5 in cases of urgency. Requiring a scheme after taking possession would defeat the very purpose of declaring an emergency. (Para 8 , 9 )
7. Is the classification of land acquisition into emergency and non-emergency categories under the Act discriminatory under Article 14?
No. The classification is based on rational considerations related to the Act's purpose, specifically the urgent need to resettle immigrants, and therefore does not constitute discrimination. (Para 10 )
8. Can the West Bengal Land Development and Planning Act be challenged on the grounds of violating fundamental rights under Articles 19(1)(f) and 31(2)?
No. The Act is listed in the Ninth Schedule of the Constitution, making it immune from attacks based on fundamental rights under Part III, as per Article 31B. (Para 11 )
Judgment
SINHA, C.J.I. : The only substantial question that arises for determination in this appeal, on a certificate granted by the Calcutta High Court under Art. 133 (1)(c) of the Constitution, is whether the Government of West Bengal was bound to frame a development scheme under the provisions of the West Bengal Land Development and Planning Act, 21 of 1948, which hereinafter will be referred to as the Act, when it exercised its power of emergency under S. 7 of the Act.
2. The facts of this case lie within a very narrow compass and are as follows: The respondent was the owner of about bighas of land in a certain village in the district of 24 Parganas. By a notification dated January 6, 1950, and published in the Calcutta Gazette dated January 12, 1950, under S. 4 of the Act, the Government declared that the cadastral survey plots, particulars whereof were given in the notification, were likely to be needed for the settlement of immigrants and for creation of better living conditions in the locality. Thereafter a notification was issued under S. 6 read with S. 7 of the Act and published in the Calcutta Gazette dated April 27, 1950, declaring that the plots covered by the notification under S. 4 aforesaid were needed for the very same purposes as stated in the notification under S. 4. On or about December 16, 1950, possession of those plots, except three, was taken by the Government. When the government started to erect certain structures on the land thus acquired and stored building materials nearabout, the respondent moved the High Court under Art. 226 of the Constitution challenging the vires of the Act and impugning the legality of the proceedings taken under the Act. The matter was heard by H. K. Bose, J. sitting singly. Before him the grounds urged in support of the petition were that the release of the three plots from the acquisition proceedings rendered the entire proceedings bad in law; that there was no urgency for the Government to take steps under S. 7 of the Act, and for issuing the notification under S. 6; and that the provisions of the Act infringed the fundamental rights of the respondent, petitioner in the High Court, enshrined in Art. 19 (1) (f) of the Constitution. The learned Judge, by his judgment dated March 28, 1952, negatived all those contentions and discharged the rule issued by the High Court on the Government of West Bengal and others under Art. 226 of the Constitution.
3. The respondent preferred an appeal under the Letters Patent. The appeal was heard by a Division Bench consisting of G. N. Das and Debabrata Mookerjee, JJ. By their judgment dated July 7, 1953*, it was held that the Act did not infringe the provisions of Art. 31 (2) of the Constitution and that therefore it became unnecessary to express any opinion with respect to the provisions of Art. 19(1) (f). But the Bench also examined the provisions of the Act in the light of Art. 19(1)(f) of the Constitution and came to the conclusion that there was no infirmity in the Act, even on that score. Having decided all the points raised on behalf of the appellant before it, the High Court allowed the appellant to raise another controversy, which had not been raised before the learned single Judge, namely, whether it was incumbent on the Government to frame a development scheme, after possession had been taken by it, of the land in question. Ordinarily, such a controversy should not have been allowed to be raised for the first time in the court of appeal. Be that as it may, it came to the conclusion that even though the Government was entitled to deal with the land on an emergency basis 18 under S. 7 of the Act, it was incumbent on the State Government to frame a development scheme after possession had been taken. The main reason for this conclusion as given by the High Court is that though S. 7 had armed the Government with the power to take possession of the property before framing a scheme of development, the section does not, in terms, dispense
