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HIGH COURT OF CALCUTTA
G. N. DAS, DEBABRATA MOOKHERJEE
GOLAM BARI MOLLA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O. (Mandamus) 204 Of 1952
Decided On : JULY 07, 1953
LAND DEVELOPMENT AND PLANNING ACT - CONSTITUTIONALITY - ARTICLE 19 (1) (F) - ARTICLE 31 - REASONABLE RESTRICTIONS - EMERGENCY - DEVELOPMENT SCHEME - PUBLICATION OF DECLARATION - WITHDRAWAL OF ACQUISITION - WRIT OF MANDAMUS - Section 7 of the West Bengal Land Development and Planning Act (Act 21 of 1948) is not void of the Constitution. The Act is a valid legislation under Article 31 (2) of the Constitution and does not suffer from any constitutional invalidity. The question of the existence of emergency or otherwise within Section 7 of the Act is not justiciable. In the absence of a specific denial on the part of the petitioner that a declaration under Rule 8 of the rules framed under the Act was not in fact published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground. The withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and there is no reason why the appellant should be allowed to complain of such a withdrawal.
Fact of the Case:
The petitioner challenged the constitutional validity of Section 7 of the West Bengal Land Development and Planning Act (Act 21 of 1948) and the proceedings taken thereunder for acquisition of his land. The petitioner alleged that he had no notice of the notification or declaration under the Act and that he first came to know about these facts when he found that building materials were being stacked on the disputed property.
Finding of the Court:
The Court held that Section 7 of the Act is not void of the Constitution and is a valid legislation under Article 31 (2) of the Constitution. The Court further held that the question of the existence of emergency or otherwise within Section 7 of the Act is not justiciable. The Court also held that in the absence of a specific denial on the part of the petitioner that a declaration under Rule 8 of the rules framed under the Act was not in fact published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground. The Court also held that the withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and there is no reason why the appellant should be allowed to complain of such a withdrawal.
Issues: 1. Whether Section 7 of the West Bengal Land Development and Planning Act (Act 21 of 1948) is void of the Constitution? 2. Whether the question of the existence of emergency or otherwise within Section 7 of the Act is justiciable? 3. Whether in the absence of a specific denial on the part of the petitioner that a declaration under Rule 8 of the rules framed under the Act was not in fact published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground? 4. Whether the withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and there is no reason why the appellant should be allowed to complain of such a withdrawal?
Ratio Decidendi: 1. The Court held that Section 7 of the Act is not void of the Constitution and is a valid legislation under Article 31 (2) of the Constitution because: (a) The Act is an existing law as defined in Article 13 (3) (b) of the Constitution and its constitutional validity must therefore be judged in terms of Article 13 of the Constitution. (b) Article 13 provides that such laws in so far as they are inconsistent with the provisions of part Ill (fundamental rights) shall, to the extent of such inconsistency, be void. (c) Part III of the Constitution deals with fundamental rights and Article 31 deals specifically with rights to property. (d) Article 19 (1) (f) deals with the right to acquire, hold and dispose of property, but this right is subject to reasonable restrictions imposed by law in the interest of the general public. (e) The impugned legislation is a piece of legislation which compulsorily acquires private properties for public purposes and therefore it is governed by Article 31 (2) of the Constitution. (f) The legislation need not in such a case conform also to the provisions of Article 19 (1) (f) of the Constitution. 2. The Court held that the question of the existence of emergency or otherwise within Section 7 of the Act is not justiciable because: (a) If the contention was valid, the result would be that in emergent' cases the proceedings under the Act would be held up pending an enquiry into the existence or otherwise of the state of emergency. (b) The Judicial Committee in the case of Bhagat Sing v. Emperor negatived a contention like the present and characterised the contention as "completely without foundation on the face of it." 3. The Court held that in the absence of a specific denial on the part of the petitioner that a declaration under Rule 8 of the rules framed under the Act was not in fact published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground because: (a) There is only a general allegation that notices were not served. (b) In the absence of a specific denial on the part of the petitioner that such a declaration in terms of Rule 8 was not in fact, published, it is impossible to hold that the petitioner is entitled to challenge the proceedings on such a ground. 4. The Court held that the withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and there is no reason why the appellant should be allowed to complain of such a withdrawal because: (a) Section 48 of the Land Acquisition Act provides for withdrawal of acquisition of land before possession is taken. (b) There is therefore no substance in this contention. (c) In fact, the withdrawal of certain plots from acquisition is entirely for the benefit of the appellant and there is no reason why the appellant should be allowed to complain of such a withdrawal.
Final Decision: The Court held that the judgment of Bose J. is varied to the extent that writ of Mandamus do issue on the respondents requiring them to proceed to frame a development scheme in terms of the West Bengal Land Development and Planning Act (Act 21 of 1948). The appeal having succeeded in part, the appellant will have his costs of this appeal, hearing fee being assessed at three gold mohurs. As the point on which the appeal has succeeded was not raised before Bose, J. , there will be no order for costs of the hearing before Bose, J.
( 1 ) APPEAL No. 157: This is an appeal from the judgment of Bose J. , dated 28-3-1952.
( 2 ) THE facts which have given rise to the present appeal may be stated as follows: On 6-1-1950, a notification under Section 4, West Bengal Land Development and Planning Act (Act 21 of 1948) was published stating that a certain plot of land described in Schedule 2 to the petition under Article 226 of the Constitution, was needed or likely to be needed for settlement of immigrants and for better living conditions in village Paikpara. On 27-4-1950, a notification under Section 6 read with. Section 7, West Bengal Land Development and Planning Act was published. After a declaration in terms of Rule 8 framed under Section 14 of the said Act, possession was taken of the said area with the exception of three plots being Cadastral Survey plots Nos. 259, 571 and 2490, on 16-12-1950.
( 3 ) THE petitioner's allegation is that he had no notice of the notification aforesaid or of the declaration under Rule 8 and that he first came to know on enquiry about these facts when he found that building materials were being stacked on the disputed property. The application under Article 226 of the Constitution was filed in this Court on 11-6-1951. This application was finally dismissed by Bose, J. on 28-3-1952. Against this judgment of Bose J. the applicant under Article 226 of the Constitution has preferred this appeal.
( 4 ) MR. Sinha, learned Advocate who has appeared in support of the appeal, has raised four contentions. In the first place, he has contended that Section 7 of the said Act is void of the Constitution. In the second place, he has contended that the question of urgency referred to in Section 7 is justiciable. In the third place, he has contended that the publication of the declaration under Rule 8 of the rules framed under the said Act is compulsory and in the absence of such publication, the delivery of possession must be regarded as ineffective. In the fourth place, he has contended that the withdrawal of the proceedings in regard to the three plots, already referred to, vitiated the entire proceedings. I shall deal with these contentions in the above order.
( 5 ) THE first question is whether Section 7, West Bengal Land Development and Planning Act is void of the Constitution. The West Bengal Land Development and Planning Act (Act 21 of 1948) came into force on 7-10-1948, on the expiry of the Ordinance which preceded the Act. It was thus an existing law as defined in Article 13 (3) (b) of the Constitution.
( 6 ) ITS constitutional validity must therefore be judged in terms of Article 13 of the Constitution. That Article provides that such laws in so far as they are inconsistent with the provisions of part Ill (fundamental rights) shall, to the extent of such inconsistency, be void.
( 7 ) PART III of the Constitution deals with fundamental rights. It has been classified under different heads. Articles 12 and 13 are headed as general. Articles 14 to 18 deal with right to equality. Articles 19 to 22 deal with right to freedom. Articles 23 and 24 deal with right of exploitation. Articles 25 to 28 deal with right to freedom of religion. Articles 29 and 30 deal with cultural and educational rights. Article 31 deals with rights to property. Articles 32 to 35 deal with the right to constitutional remedies.
( 8 ) IN this appeal we are concerned with Arts. 19 and 31, referred to above. The contention is that the West Bengal Land Development and Planning Act in so far as it expropriates a citizen is void of the Constitution because its constitutional validity must be tested not merely in terms of Article 31 but also in terms of Article 19 (1) (f) which confers on every citizen a fundamental right to acquire, hold and dispose of his property.
( 9 ) IN order to decide this contention, it is necessary to look into the different clauses of Article 19 and its relation to Article 31. Article 19 (1) (a) deals with freedom of speech an
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