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TMI Blog1958 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... re a number of Mills in the locality and the problem of sewerage is acute. So far as the Municipality was concerned, it was unable to execute any such scheme for lack of funds. On 2-6-1936 the Executive Engineer, Western Division, Public Health Department of the Government of Bengal, prepared a report in respect of the sewerage scheme. This was revised by the Chief Engineer, Public Health Department, in September, 1939. At this juncture, the World War No. II broke out and the work of implementing the scheme became impossible, Alter the cessation of the War, the scheme was again taken up by the Government and was revised, because due to rise of prices of commodities and increase in population, the original scheme had become inadequate. A second revised scheme was prepared and thereafter a third revised scheme. The expenditure under the third revised scheme was expected to be in the neighbourhood of ₹ 14,24,055/-. Subsequently, it was revised again for the fourth time and the cost of the scheme was raised to ₹ 17,22,700/-. It was this scheme that was finally sanctioned by the Government. Under the scheme, the different Mills who would be benefited by the scheme were to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contributions from the Mills and the Municipality, as also the contribution to be made by Government, were finally fixed at figures indicated above. It appears that the District Magistrate of Hooghly called a conference of the representatives of the various Mills concerned, who agreed to pay their respective contributions towards the capital cost. The Government also sanctioned the payment to be made by itself, as also the loan payable to the Municipality, and necessary provisions were made in the budget. The execution of the scheme was entrusted by Government to the Chief Engineer, Public Health Department, and a programme of work was drawn up, to be spread over a period of five years commencing from the financial year 1950-51. 5. On the 6th December, 1950 the Chairman of the Serampore Municipality wrote a letter to the Member, Board of Revenue, a copy whereof is Annexure II to the said affidavit of Sri Prafulla Kumar Chakravarty. It was stated that at a conference of the representatives of the Mills and other interested parties, held on 6-11-1950, it was resolved that the Government be moved for the summary acquisition of the required land by application of the West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishore Gupta in his individual capacity on 15-6-1954. On 16-6-1954 the said petitioner filed a petition before the District Magistrate and Collector of Hoogly stating, inter alia, that the land belonged to the said deity and was used for worship of the deity since 1945. The requisition of the land was objected to. This objection was not entertained and as the respondents continued to act under the impugned order, this application has been made challenging the order of requisition, I might mention here that even before the order of requisition was made, the land was being surveyed, in contemplation of acquisition and in fact other lands were being requisitioned for the Sewerage Scheme from time to time under Act II of 1948. It is in evidence that on 2-4-1954 a survey party walked over the land in question and inspected it and on 4-4-1954, Sri Krishna Kishore Gupta wrote a letter to the Chairman of the Serampore Municipality protesting against such action. It is on 1-6-1954 that the land was dedicated to the deity by a registered Arpannama. 10. In this application, Mr. Bose, appearing on behalf of the petitioners, has taken the following points: (i) That the requisition of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioners at a meeting, proceed to acquire it under the provisions of the Land Acquisition Act, 1894 . 12. It is argued that in this case the land was required within the limits of the Municipality for the purposes of the Act and the Commissioners at a meeting could request the State Government to acquire such land under the previsions of the Land Acquisition Act, 1894. It is stated that the Municipality is a statutory body and therefore its powers are limited to the statute of its incorporation. If it proceeds to acquire land under the provisions of the Bengal Municipal Act, 1932, it can only do so in the manner provided and in no other manner. There can be no doubt that the principle propounded is unexceptionable. A statutory body is severely restricted to the powers granted to it under its statute of incorporation. It must limit its action within the four corners of such statute. In the case of Manick Chand v Corporation of Calcutta, ILR 48 Cal 916: (AIR 1921 Cal 159) it was held that the special powers of the Corporation for the purposes of acquiring land cannot be used to enable another body to acquire land through them, however, estimable the purpose. The power to acquire i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached Government to acquire for them at their expense. The land was being requisitioned for implementation, not of a Municipal scheme, but of a State scheme. The entire scheme, has been framed by the Government and the Public Health Department is carrying it out. In fact, it was found necessary to do so Because the nature of the scheme and the immense expenditure involved, put it beyond the capacity of the Municipality, to either frame a scheme or to implement it if however the resolution at the special meeting be taken to be a request, as contemplated in Section 98, then also I do not think that there is anything wrong, on the face of the resolution. That resolution merely states that land acquisition proceeding should be started. This is no contravention of the provisions of Section 98. The subsequent letter by the Chairman, pointed out that regard being had to the urgency of the matter proceedings should be taken under the summary provisions of the West Bengal Land (Requisition and Acquisition) Act, 1948, because the scheme was not a Municipal scheme but a State scheme, Comment has been made to the effect that the Chairman had no authority or jurisdiction under Section 98 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person authorised in this behalf by the Provincial Government it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage, the Provincial Government or the person so authorised, as the case may be, may, by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning: Provided that no land used for the purpose of religious worship shall be requisitioned under this section . 16. Before I proceed further, I might consider the short history of the West Bengal Land (Requisition and Acquisition) Act of 1948, being West Bengal Act II of 1948, (hereafter referred to as the Act ). The original Act was passed by the West Bengal Legislature and it came into operation on 11-3-1948. It was to remain in force up to 31-3-1951. By Amending Act VII of 1951, the date up to which it was to remain in force was extended up to 31-3-1954 By Amending Act VIII of 1954, it was further extended to 31-3-1957. By Amending Act XII of 1957, there has been a further exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of public amusement was the Commissioner of Police, and that the order of cancellation was not an order by the Commissioner but merely an intimation by him of an order passed by another authority, namely, the Government of Bombay, which had no jurisdiction whatever to make such an order. The order was, accordingly, set aside. 17. It is argued by Mr. Bose that the facts of the present case are exactly on all fours, the Collector of Hooghly having acted upon an order of Government. In my opinion, the argument is not one of substance. In Gordhandas's case (supra), the letter of the Commissioner of Police itself showed that the order was not being made by him but by the Government of Bombay. In this case, it is true that the Assistant Secretary to the Government wrote to the Collector of Hooghly to take steps under the Act, but there is nothing to show that the Collector, upon the materials placed before him, did not himself arrive at that opinion. The various inter-departmental requests are part of the administrative machinery. The Collector of Hooghly is part of that machinery, and to a certain extent he did follow the order of Government. But in making an order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship and consequently the proviso is not attracted. This disposes of points Nos. (i) and (iii). It remains for me to deal with point No. (ii) which has been exhaustively argued by Mr. Bose and appears to be a point of some complexity. 19. The way that it has been formulated is as follows: Compulsory acquisition or requisition of land, it is argued, necessarily involves and constitutes an invasion of the fundamental rights of a citizen under Article 19(1)(f) of the Constitution, namely, to acquire, hold or dispose of property. A law which invades this right can only be supported under Clause 5 of Article 19, if it is a reasonable restriction on the exercise of such right imposed in the interest of general public. It is argued that this Act II of 1948 is a Statute containing unreasonable restrictions and is therefore not saved under Article 19(5). The reason why it is said that the provisions of the statute are unreasonable may be summarised as follows : (a) That the Act contains no provision whereby an opportunity is given to the person whose property is affected to prefer an objection. No such objection can either be preferred or heard. (b) Section 3(1) of the Act confers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundations within five days of the day when he alleged that he had sent notice. The house had reached the second storey, when the Board, without notice to Cooper, sent their workmen to the site and razed the building to the ground. Cooper brought an action for trespass. The defence was that the Board had acted within its legal rights under Section 76, of the Metropolis Local Management Act, 1855, which did not provide for the issue of any notice before action was taken. Erle, C. J. said: The contention on behalf of the plaintiff has been, that although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the District Board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without having an opportunity of being heard..... .I think the power which is granted by the 76th section is subject to the qualification suggested ......... I think the Board ought to have given notice to the plaintiff, and to have allowed him to be heard . Willes, J., in the same case laid down, the law in these t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licit in this decision that a person whose property was being compulsorily acquired was entitled to be heard and deprivation of that right would amount to unreasonable restriction. 23. On the question of the power given to Government under Section 3(1) of the Act to make a delegation, Mr. Bose has cited Khagendra Nath De v The District Magistrate of Dinajpore . In this case it was held that Section 38 of the West Bengal Security Act 1950 which entitles Government to delegate its powers to any officer subordinate to it irrespective of whether that officer is fit to make such order is a procedure which is wholly unreasonable and therefore, ultra vires and not saved by Clause 5 of Article 19. Harries, C.J. said as follows: One of the powers conferred by the Act is the power of making an externment order and clearly by Section 38 of the Security Act Government can delegate that power to any officer Or authority subordinate to the State Government. Officers or authorities subordinate to the State Government may be officers or authorities of a high standing or they may be officers or authorities of a comparative lowly kind.. A Commissioner of Police in the city of Calcutta or a Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which relates to the granting and refusing of licenses. The licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any license under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable ....... .... Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does. This safeguard, in our opinion, is hardly effective, for there is no higher authority prescribed in the Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer.....It was pointed out and with perfect propriety by Mr. Justice Mathews in the well known American case of Yick Wo v. Hopkins, 118 US 356, that the action or non-action of officers placed in such position may proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of delegation. 27. It is not quite clear whether the learned Chief Justice meant to lay down that whenever the power of delegation was given to Government, however wide that power may be, there should be a presumption that Government was not likely to abuse its powers. The same argument was advanced in Khagendra's case, (supra). What Harries, C. J., said is as follows : What Mr. Sen has contended is that we must not assume that Government would delegate their powers to some humble officer or authority who or which could not be regarded as fitted to exercise such powers. However this Court is not presuming that the Government would abuse its powers by appointing some one not fitted to make the order. If the Government by a notification had delegated its powers to the humblest class of officers subordinate to the Government it would not be abusing its authority. It would be exercising a right which the Act actually gave it. It would not be doing something to circumvent the Act. On the contrary it would be doing something which it was entitled to do under the Act. 28. The next point urged is that the provisions of the Act are unreasonable because there is no rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Sadasib Prakash v. State of Orissa, (S) . Jagannath Das, J. said as follows: In order to judge whether the provisions in the present Act operate by way of unreasonable restriction for constitutional purposes what is to be seen is whether the person affected gets a reasonable chances by presenting his entire case before the original tribunal which has to determine judicially the questions raised and whether he has a regular appeal to the ordinarily constituted Court or Courts to correct the errors, if any, of the tribunal of first instance. The Act was held to be intra vires. 30. In Tika Ramji v. State of Uttar Pradesh, (S) the U. P. Sugar Cane (Regulation of Supply and Purchase) Act (24 of 1953) came under challenge. The provisions of the Act and the Rules framed thereunder were upheld on the ground that the powers given to the Cane Commissioner were made subject to an appeal to the State Government at the instance of a party aggrieved. It was held that this was a sufficient safeguard against any arbitrary exercise of his powers by the Cane Commissioner. 31. Summarising the above decisions, we find that the right to hold property is guaranteed under the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lawful compulsory acquisition with respect to the right in Sub-clause (f), he ceases to have those rights while his incapacity lasts . In Chiranjit Lal v. Union of India, the same learned Judge said : The fundamental rights said to have been infringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by Article 31. In Gopalan's case (ibid), I pointed out that the right to property guaranteed by Article 19(1)(f) would likewise continue until the owner was, under Article 31 deprived of such property by authority of law . 32. In the second Sholapur case, Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., the Supreme Court revised its decision in the first Sholapur case. There was a marked difference between Mahajan, J. and Das, J. on the scope and applicability of Articles 19 and 31. But even Mahajan, J. was of opinion that so far as compulsory acquisition of property was concerned the matter was wholly covered by Article 31 and there was no question of any fundamental rights under Article 19 being infringed. 33. Faced with this well-established proposition of law, Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to give notice of vacancies as they arose. It was found in practice that such notice was not being given, and tenants and landlords were not co-operating. Government accordingly introduced a rule whereby anyone who gave information about the suppressed vacancies would be allotted the same, provided he genuinely needed accommodation. In the case under question the allottees belonged to that class. The orders of requisition being challenged, the High Court of Bombay held that to set apart a section of much needed vacancies for the use, of spies or informers as a reward for their services, whether their need was as great as other houseless persons or not, was not equitable, and must be struck down. This decision was upset by the Supreme Court, inter alia on the ground that the public purpose was to find accommodation for the homeless and as long as that purpose was fulfilled, the order of requisition could not be challenged, although it might be possible to challenge it on the ground of fraud, discrimination, bribery or corruption. It was argued, as has been argued in this case, that an order of requisition did not amount to total deprivation of property and therefore the guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he substance that we must seek. In the present case, right to occupy the premises is gone as also the right to transfer, assign, let or sublet. What is left is but the mere husk of title in the leasehold interest; a forlorn hope that the force of this law will somehow expend itself before the lease runs out . The order of requisition was upheld. 36. Mr. Bose argues that under the Bombay Land Requisition Act, 1948, a requisition had a more drastic consequence than under the Bengal Act. Under the Bombay Act, not only was the right to occupy the premises gone but also the right to transfer, assign, let or sub-let. He points out that Appeal No. 146 of 1952, in which the respondent was the owner was dismissed, but it was successful as regards those appeals in which the respondents were tenants or occupiers. He says that in the case of tenants or occupiers, if the light to possess or the right to sub-let is gone then nothing remains except the forlorn hope that the requisition may come to an end before the expiry of the lease, provided, however, that there is a lease for a term. Acquisition is however a more drastic operation. Under the Bengal Act, possession is taken over as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by Article 31. In Gopalan's case, (Supra) I pointed out that the rights conferred by Article 19(1) to (e) and (g) would be available to the citizen until he was, under Article 21, deprived of his life or personal liberty according to procedure established by law sind that the fight to property guaranteed by Article 19(1)(f) would likewise continue until the owner was, under Article 31, deprived of such property by authority of law . 40. There is some conflict of opinion on the question as to what the word 'acquisition' means in Article 31 or whether Sub-clauses (1) and (2) of Article 31 mean the same thing or not. But there is no conflict on the question as to whether in the case of a compulsory acquisition of property there is any scope for the application of Article 19. Although that is so, Mr. Bose has pointed out that in several decisions of the Supreme Court, these two Articles have been linked together in the case of acquisition and requisition. I shall deal with this point presently. 41. In Province of Bengal v. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not a case either of acquisition or requisition of immoveable property. Therefore it presumably came under Article 31(1) which lays down that no person shall be deprived of his property save by authority of law. The case, therefore, does not throw much light on the question, we are considering here. 43. The next case cited is Saghir Ahamad v. State of Uttar Pradesh, In that case, the appellants were carrying on the business of plying motor vehicles as stage carriages on hire, in the State of Uttar Pradesh. The State tried to nationalise all bus services and to create a State monopoly therein. The first question arose as to whether, taken as a restriction, it was reasonable under Clause (6) of Article 19. In other words, whether a total extinction could be considered as a reasonable restriction. On this point, however, the Supreme Court did not give a final decision. The other point that arose was us to whether a mere deprivation of the petitioner's right to run buses on the road was sufficient to attract the operation, of Article 31(2) of the Constitution. The State sought assistance of the Legislature and the U. P. Road Transport Act (Act II of 1951) was passed. Thus it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al deprivation and yet Article 19(1)(g) was said to be applicable. The only thing that I can say is that no argument had been advanced about the mutual exclusiveness of the two Articles and that is why no particular attention was given to that aspect of the matter. 45. It seems to me that the result of the decisions abovementioned can be stated to be as follows: Where property is acquired out and out, there is of course a complete deprivation of property. Where property is acquired by the State, then it must be held that Article 31 applies and not Article 19. Article 19 applies when the citizen has a right to property. Once it is compulsorily acquired, the right to property is gone and there can be no question of invoking the fundamental right to hold property which is guaranteed by the Constitution. A much more difficult position accrues where it is not a case of acquisition but a case of requisition. In such cases there is only a partial acquisition of property consequently what the State acquires is only some of the bundle of rights which go to constitute the 'property' of the citizen. The question is as whether in such circumstances Article 19 has any application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 31 applies and not Article 19. In order, however, to test the constitutionality of Section 3, I realise that it is not sufficient to deal with the facts of this particular case and the question for determination would still be whether apart from the facts in this particular case, Section 3 and the exercise of the powders of requisition given under it could attract the provisions of Article 19. Because if it is capable of doing so, it must, for reasons stated above, be declared as bad. I must confess that the matter is not free from doubt. But giving the question my anxious consideration I have come to the conclusion that the compulsory requisition of any land under Section 3 of the Act which may be followed by compulsory acquisition amounts to a substantial, deprivation of the rights to property. Looking at Section 3 of the Act, we find that the requisition of land under it comes into operation if the State Government thinks that the requisition of land was necessary for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage. These are objects which indicate permanent u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he one hand and the parties on the other. In that case, an order was made against a person who was dead. It was however served on the widow of the tenant of the premises, who preferred objection. It was held that since it was not a judicial or quasi-judicial proceeding, the requisition proceeding could not be held to be void, as the petitioner had actually received notice, and while the name of the dead man should be considered as erased from the order, that would not affect the validity of the requisition. Of course, it depended to certain extent upon the wordings of Section 13(2) of the Bombay Act, but nevertheless it explains the nature of an order made under the requisitioning Acts. In this particular case, the petitioner No. 2 did get notice and did prefer objections. In fact, in the original petition filed before me, the point itself was not taken but was added later on by amendment. Howover, since notice has to be served on the petitioner No. 1 I think it would be better if a properly signed notice is served upon the petitioner No. 2 as well. 49. The second point, however, seems to be a matter of substance. The owner of the requisitioned property, whatever be the motive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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