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HIGH COURT OF CALCUTTA
Bose
TULSIDAS JEWRAJ - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Civil Rules 3167 Of 1951
Decided On : JULY 25, 1952
LAND ACQUISITION - WEST BENGAL LAND DEVELOPMENT AND PLANNING ACT, 1948 - SECTIONS 4, 6, 7 - NOTIFICATION AND DECLARATION FOR ACQUISITION OF LAND - VALIDITY - REASONABLENESS - ARTICLE 19 (1) (F) AND ARTICLE 19 (5) OF THE CONSTITUTION - APPLICABILITY - URGENCY FOR ACQUISITION - DETERMINATION BY GOVERNMENT - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a permanent tenure-holder, challenged the validity of a notification and a declaration issued under the West Bengal Land Development and Planning Act, 1948, for the acquisition of his lands for the settlement of immigrants. The petitioner contended that the declaration under Section 6 was invalid as it was made before the publication of the notification under Section 4, that Section 7, which allowed the government to acquire property without giving the owner an opportunity to be heard, was unreasonable and violated Article 19 (1) (f) and Article 19 (5) of the Constitution, and that the government's determination of urgency for acquisition under Section 7 was not justiciable.
Finding of the Court:
1. The declaration under Section 6 was not invalid merely because it was made before the publication of the notification under Section 4. Both sub-sections of Section 6 must be read together, and publication in the Gazette is necessary to give efficacy to the declaration. Until publication, the declaration remains inchoate, but on publication, it becomes operative. 2. Section 7 of the Act, which allows the government to acquire property without giving the owner an opportunity to be heard, does not violate Article 19 (1) (f) and Article 19 (5) of the Constitution. In cases of compulsory acquisition of property, the operation of Article 19 (5) and 19 (1) (f) is not attracted. The question of reasonableness of the provisions of the Act is not open to judicial review. 3. The government's determination of urgency for acquisition under Section 7 is not justiciable. The Legislature has committed to the Provincial Government the power to determine whether an urgency exists or whether delay is likely to be occasioned by the preparation or sanction of any scheme in respect of the acquisition. Even if the government has made an erroneous decision on the question of urgency, such determination cannot be interfered with by the Court under Article 226 of the Constitution.
Issues: 1. Whether the declaration under Section 6 was invalid due to its being made before the publication of the notification under Section 4? 2. Whether Section 7 of the Act, which allows the government to acquire property without giving the owner an opportunity to be heard, violates Article 19 (1) (f) and Article 19 (5) of the Constitution? 3. Whether the government's determination of urgency for acquisition under Section 7 is justiciable?
Ratio Decidendi: 1. The declaration under Section 6 is not invalid merely because it was made before the publication of the notification under Section 4. Both sub-sections of Section 6 must be read together, and publication in the Gazette is necessary to give efficacy to the declaration. Until publication, the declaration remains inchoate, but on publication, it becomes operative. 2. Section 7 of the Act, which allows the government to acquire property without giving the owner an opportunity to be heard, does not violate Article 19 (1) (f) and Article 19 (5) of the Constitution. In cases of compulsory acquisition of property, the operation of Article 19 (5) and 19 (1) (f) is not attracted. The question of reasonableness of the provisions of the Act is not open to judicial review. 3. The government's determination of urgency for acquisition under Section 7 is not justiciable. The Legislature has committed to the Provincial Government the power to determine whether an urgency exists or whether delay is likely to be occasioned by the preparation or sanction of any scheme in respect of the acquisition. Even if the government has made an erroneous decision on the question of urgency, such determination cannot be interfered with by the Court under Article 226 of the Constitution.
Final Decision: The petitions challenging the validity of the notification and declaration for the acquisition of land under the West Bengal Land Development and Planning Act, 1948, were dismissed. The petitioners were ordered to pay the costs of the opposite parties.
( 1 ) (CIVIL. Rule No. 2848 of 1951.) This is an application under Article 226 of the Constitution for an appropriate writ directing the opposite parties to forbear from giving effect to a notification and a declaration both dated 16-3-1951 and published on 5-4-1951 and 12-4-1951 respectively issued under the provisions of the West Bengal Land Development and Planning Act, 1948.
( 2 ) THE petitioner is a permanent tenure-holder in respect of a large area of land in Mouza Makla P. S. Utterpara in the district of Hooghly. By a notification dated 16-3-1951 bearing no. 3132 L. Dev. issued under Section 4 of W. B. Act 21 of 1948 and published in the Calcutta Gazette dated 5-4-1951 the Government of West Bengal declared that portions of the lands held by the petitioner, particulars whereof are set out in the second schedule to the petition, were likely to be needed for settlement of immigrants. By a declaration bearing No. 3134 L. Dev. and also dated 16-3-1951 issued under Section 6 read with Section 7 of the said Act 21 of 1948, it was made known that the said plots (which were the subject matter of the notification under Section 4 were needed for settlement of immigrants. This declaration was published in the Gazette on 12-4-1951. The petitioner has challenged the validity of the notification and the declaration on various grounds set out in para. 9 of the petition. But at the hearing the learned Advocate appearing for the petitioner has not pressed all these grounds.
( 3 ) THE first point raised by Mr. Atul Gupta is that the declaration under Section 6 read with Section 7 is not a valid declaration in as much as at the date when the declaration was' drawn up, the notification under Section 4 of the Act had not been published and there was therefore, no notified area in respect of which, the declaration under Section 6 could be made. Mr. Gupta has drawn my attention to the wordings of Section 4 and to the wordings of Section 6 and points out that a declaration of a notified area under Section 4 can be made only by publishing a notification in the official Gazette, but a declaration under Section 6 is made as soon as it is drawn up and signed, no matter whether it is published in the official Gazette or not. In other words, according to Mr. Gupta the declaration is complete without its publication and the publication is not an essential ingredient of the making of the declaration under Section 6 of the Act.
( 4 ) IT appears to mo that this contention of Mr. Gupta cannot bo accepted as sound. It is true that the wordings employed for making declaration under Section 4 are not the same as in Section 0. But the nett effect of the two sections in so far as making of the declarations is concerned, is the same. So far as declaration under Section 4 is concerned, the scheme of making the declaration is contained in one sub-section, being sub-section (1 ). But so far as the declaration under Section 6 is concerned the scheme is to be found distributed in sub-ss. (1) and (2) of Section 6. Publication' of the notifications in the official Gazette is necessary in order to give efficacy to the declarations whether made under Section 4 or under Section 6. Sub-section (2) of Section 6 shows that publication in the Gazette of the declaration is made obligatory. Until publication the declaration remains an inchoate declaration but on publication it becomes operative or effective. The observations made by me in Mohammed Safi v. State of Wed Bengal, 55. Cal. w. N. 463 at pp. 4 (58-469 in relation to the declaration under Section 4 are equally applicable to the declaration made under Section 6. The two sub-sections of Section 6 must be read together. It is only on publication on 12-4-1951 that the declaration came into force. If the declaration under 8. 6 in the present case had been simply drawn up and signed but was not published at all could it be said that the declaration was one which was under or as contemplated by Section 6 of the
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