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