Appeal No 21255
Appeal from the Judgment and Decree dated July 7 1953 of the Calcutta High Court in Appeal from Original Order No 157 of 1952 arising out of the Judgment and Decree dated March 28 1952 of the said High Court in Civil Rule No 1409 of 1951
B Sen and P K Bose for the appellants
P K Ghosh for the respondent
section C Mazumdar for the Intervener Gopalpur Land Development Society Ltd
August 29
The Judgment of the Court was delivered by SINHA C J
The only substantial question that arises for determination in this appeal on a certificate granted by the Calcutta High Court under article 133 1c 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 section 7 of the Act
The facts of this case lie within a very narrow compass and are as follows The respondent was the owner of about 18 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 section 4 of the Act the Government declared that the cadastral survey 370 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 section 6 read with section 7 of the Act and published in the Calcutta Gazette dated April 27 1950 declaring that the plots covered by the notification under section 4 aforesaid were needed for the very same purposes as stated in the notification under section 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 near about the respondent moved the High Court under article 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 section 7 of the Act and for issuing the notifi cation under section 6  and that the provisions of the Act infringed the fundamental rights of the respondent petitioner in the High Court enshrined in article 191f 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 article 226 of the Constitution
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 article 31 2 of the Constitution and that therefore it became unnecessary to express any opinion with respect to the provisions of article 191f
But the Bench also examined the provisions of the Act in the light of article 191f of the Constitution and came to the conclusion that there was no infirmity in the Act 371 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 A 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 under section 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 section 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 with the necessity of framing a development scheme after the emergency had been declared and possession taken
In that view of the matter the court of appeal allowed the appeal in part and directed a writ of mandamus to issue to the respondents before it requiring them to proceed to frame a development scheme in terms of the Act
The State of West Bengal and other officials who had been impleaded as respondents in the High Court applied for leave to appeal to this Court from the said judgment of the appeal court
The High Court granted the leave prayed for on condition that the appellants paid for the representation of the respondent before this Court by a junior Advocate of this Court
That is how the matter comes before this Court
It was argued on behalf of the appellants that the appeal court had misapprehended the scope and effect of sections 4 5 6 and 7 of the Act that the Act contemplated two categories of acquisition proceedings namely 1 acquisition under section 6 after compliance with the provisions of section 5 and 2 acquisition in case of an emergency under section 7 read with section 6 of the Act that the condition precedent laid down in section 5 necessitating 48 372 the framing of a scheme before a declaration under section 6 of the Act was made is specifically excluded in cases of emergency once a declaration of emergency under section 7 is made
The High Court was therefore in error in insisting upon the framing of a development scheme under section 5 of the Act when that section had not been made applicable to the case of an emergency acquisition
Once the property has been acquired it vests in the Government and thereafter the original holder of the property has no say in the matter except on the question of amount of compensation
Mr Sen for the appellants finally contended that if the High Court was right in insisting upon a scheme of development being framed the whole purpose of declaring an emergency would be defeated
The learned counsel for the respondent has not made any serious attempt to meet the contentions raised on behalf of the appellants but has attempted to show that the provisions of the Act in so far as they give special powers to Government to declare an emergency and then to proceed with the acquisition without the necessity of framing a scheme of development were unconstitutional both in view of the provisions of article 312 and article 191f
He also made a very feeble attempt to rely upon the provisions of article 14 of the Constitution and to suggest that the respondent was being discriminated against in the application of the emergency provisions of the Act to his case
In our opinion the contentions raised on behalf of the appellants are manifestly well founded and the High Court was clearly in error in issuing the mandamus against the appellants
Before dealing with the contentions raised on behalf of the parties it is convenient at this stage to set out the relevant provisions of the Act
The Act replaced the West Bengal Land Development and Planning Ordinance 11 of 1948 which was in similar terms
The Act and the Ordinance which it replaced were enacted apparently as a result of the emergency created by the continual exodus of Hindus from East Pakistan on a mass scale and the consequent immigration of a very large population into West Bengal  as a result of the 373 partition
The Act was enacted  to provide for the acquisition and development of land for public purposes 
It adopts the definitions of  land   Collector  and  company  as in the Land Acquisition Act 1 of 1894 to which it is in its terms supplementary
In the definition section 2  development scheme  means a scheme for the development of land for any public purpose and a  notified area  has been defined as an area declared as such under sub section
1 of section 4
 Public purpose  has been defined in cl
d of section 2 as including i the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control ii the establishment of towns model villages and agricultural colonies iii the creation of better living conditions in urban and rural areas and iv the improvement and development of agriculture forestry fisheries and industries  but does not include a purpose of the Union
Section 3 authorises the State Government to appoint the  prescribed authority  for carrying out the purposes of the Act
Section 4 is in terms analogous to section 4 of the Land Acquisition Act and authorises the State Government by notification in the Official Gazette to declare any area to be a notified area on being satisfied that that specified area is needed or is likely to be needed for any public purpose
The Act was amended in 1955 by the West Bengal Act XXIII of 1955 and one of the amendments made by that Act was to add section 4A making provision for objections to be taken by any person interested in any land within the notified area for an opportunity of being heard and for an enquiry being made on the merits of such objections and finally for submission to the State Government of a report on the objections raised
We are not concerned in this case with section 4A because it was inserted into the Act after the decision of the case by the High Court
Section 5 with which we are mainly concerned in this case is in these terms 51
The State Government may direct the prescribed authority or if it so thinks fit in any case authorise any Company  or local authority to prepare in accordance with the rules a development scheme 374 in respect of any notified area and thereupon such scheme shall be prepared accordingly and submitted together with such particulars as may be prescribed by the rules to the State Government for its sanction  Provided that no scheme shall be necessary for acquisition of land for the public purpose specified in sub clause i of clause d of section 2
A development scheme submitted to the State Government under subsection 1 may after taking into consideration any report submitted under sub
section 2 of section 4A be sanctioned by it either without any modification or subject to such modifications as it may deem fit
 The proviso to a 5 was added by the same amending Act West Bengal Act XXIII of 1955 and is likewise inapplicable to this case
Section 6 again is in terms analogous to section 6 of the Land Acquisition Act which provides for the declaration to be published in the Official Gazette to the effect that the State Government was satisfied that any land in a notified area for which a development scheme has been sanctioned under section 52 of the Act is needed for the purpose of executing such a scheme unless there already has been a declaration made under section 7 of the Act
Section 7 which is another section the construction of which is involved in this case is in these terms  In cases of urgency if in respect of any notified area the State Government is satisfied that the preparation of a development scheme is likely to be delayed the State Government may at any time make a declaration under section 6 in respect of such notified area or any part thereof though no development scheme has either been prepared or sanctioned under section 5 Section 8 makes the provisions of the Land Acquisition Act applicable to acquisition proceedings taken in pursuance of the declaration made either under section 6 or section 7 of the Act subject to certain reservations made in pursuance of the provisos to section 8 relating to taking possession determination of the amount of compensation and of market value
The other sections of the Act are not relevant to the point in controversy in this case and therefore need not be adverted to
375 It will be noticed that section 7 is in the nature of a proviso to section 6
Section 7 provides that 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 tinder section 6 that the land was needed for a public purpose even though no development scheme has either been prepared or sanctioned under section 5
The section therefore in clear terms authorises the State Government to issue the necessary declaration under section 6 which puts the machinery of land acquisition proceedings into motion if it is satisfied that the public purpose necessitating the acquisition of the land in question would be subserved without the preparation of a development scheme
The Act itself came into existence in circumstances of great urgency
Naturally therefore in suitable cases where the preparation of a development scheme would cause delay the Government was authorised to proceed with the acquisition of land after making the necessary declaration under section 6
As already indicated after that declaration has been made by Government in the Official Gazette and the necessary enquiry made about compensation and the making of the award the property becomes vested in tile Government
The question naturally arises whether there is anything in the Act which makes it obligatory on the State Government to prepare a scheme of development thereafter
The High Court has recognised the need for taking speedy action to meet the emergency created by the heavy influx of immigrants
The High Court has observed that section 7 does not in terms dispense with the framing of a development scheme and that it merely says that the Government may issue a declaration under section 6 even though no development scheme has been framed
But the High Court has further observed that even after taking possession of the property under r 8 framed under the Act within three days there is no reason why the normal process envisaged in the Act should not be gone through
The argument proceeds further that the Act itself contemplated land planning and development and therefore the framing of a development scheme was an essential part of the 376 process
Hence in the view of the High Court the framing of a development scheme was necessary in the normal course before the declaration under section 6 is made by the Government and in the case of urgency under section 7 after taking possession of the land in question
In our opinion such a construction of the provisions of the Act is not warranted by the terms of the Act
The addition of the proviso to section 5 quoted above makes it clear that the Legislature has recognised the necessity in special circumstances of not framing a scheme in the case of the public purpose contemplated in cl
di of section 2 namely for the purpose of settlement of immigrants
On a fair reading of the relevant provisions of the Statute it becomes clear that the Act contemplated acquisitions of two distinct classes namely 1 where the Government bad first considered and sanctioned a development scheme under the provisions of section 5 and then made a declaration that the land in a notified area was needed for the purpose of executing the particular development scheme and 2 where the notification under section 6 is made without any development scheme being prepared and sanctioned under section 5
Once the declaration is made under section 6 the machinery of the Land Acquisition Act 1 of 1894 comes into operation of course subject to the reservations contained in the provios to section 8 as aforesaid
The Land Acquisition Act itself does not contemplate the preparation of any such scheme of development
In other words section 7 completely dispenses with the statutory necessity of pre paring a scheme of development as envisaged in section 5 of the Act in cases where the Government has taken the decision that it is necessary to proceed further with the acquisition proceedings without waiting for the preparation of a scheme
To insist upon the preparation of a development scheme would amount to rendering the provisions of section 7 otiose
There is no justification for the observation made by the High Court that the Legislature did not intend that the State Government should proceed with the land acquisition proceedings under the Act without framing a scheme of development
377 The High Court has recognised the legal position that it is open to the Government to take possession of the land under acquisition within three days after the making of the declaration of urgency under section 7 but has insisted that even after taking possession as a measure of urgency the Government was bound to prepare a scheme of development
If that were so the question naturally arises to what use the land so taken possession of was to be put
The taking of possession in cases of urgency would itself predicate the use of the land thus taken possession of by the Government
But if the Government were to wait for the preparation and sanction of the scheme before putting the land acquired to any use the very purpose of declaring the urgency and the taking of possession would be defeated
It is clear therefore that the Legislature did not mean to insist upon the preparation of a scheme of development in cases of land acquisition brought within the purview of section 7 of the Act
That disposes of the appeal
But the learned counsel for the respondent appealed to the provisions of articles 14 191f and 312 of the Constitution in aid of his contention that section 7 of the Act was ultra vires
Apparently there is no discrimination
As already indicated there are two classes of cases into which the land acquisition proceedings envisaged by the Act fall
The two classes can be easily identified and the purpose of the classification is based on a rational consideration having due regard to the purpose and policy underlying the Act namely to acquire land for the public purpose inter alia of resettling immigrants who had to leave their hearth and home on account of circumstances beyond their control
Such cases of urgency as come under section 7 are clearly meant to serve the main purpose of the Act
In our opinion therefore there is no substance in the contention that discrimination is implicit in the provisions of section 7
The attack on the Act based on articles 191f and 312 of the Constitution is futile in view of the provisions of article 31B which is in these terms 378  Without prejudice to the generality of the provisions contained in article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part and notwithstanding any judgment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeal or amended it continue in force
 The Act in question is the last entry serial number 20 in the Ninth Schedule
Article 31B quoted above which renders the Act immune from all attacks based on the provisions of Part III of the Constitution relating to fundamental rights makes it unnecessary to discuss with reference to the provisions of the statute that even if the question were open the Act does not stiffer from any such infirmity as is attributed to it
In view of the considerations set out above we allow this appeal set aside the judgment under appeal with costs here and in the High Court
The respondent s petition questioning the vires of the Act is dismissed
Appeal allowed


Summary:
The appellant a private limited company was incorporated in 1954 in the former Kotah State which had integrated with the United States of Rajasthan in 1949
The United States of Rajasthan became State of Rajasthan a Part B State
The Indian Finance Act 1950 made the Indian Income tax Act 1922 applicable to Part B States with effect from April 1 1950 whereupon Rajasthan became a taxable territory
The Income tax Amendment Act 1953 amended section 142C of the Indian Income tax Act 1922
Thereupon the Income tax authorities sought to tax the profits and income of the appellant for the assessment year 1950 51 who claimed exemption under section 142C of the Indian Income tax Act 1922 as it stood before the amendment in 1953
The question for decision was whether in view of the decision of this Court in Madan Gopal s case it was still open to the appellant to contend that the amendment operated from April 1 1950 and that income accrued prior to April x 1950 was still exempt although the exemption was withdrawn only from April 1 1950
Held that the withdrawal of the exemption in the assessment year 1950 51 conversely affected the income of the previous year 1949 50
The application of the Indian Income tax Act made Rajasthan a taxable territory subject to the Indian Income tax law and Parliament was competent to enact a new law for the area just as it did for the whole of the rest of India
The fiction in the amendment made in section 142C made the exemption in respect of liability to tax the income for the year 1949 50 to disappear as if it had never been granted and obliterated the exemption
The whole purpose and intent of the amendment was to reach this result from the assessment year 1950 51 onwards and there could be no saving
The argument assumes the premise that the Income tax Act was incorporated in the Indian Finance Act 1950 but there is neither precedent nor warrant for the assumption that when one Act applies another Act to some territory the latter Act must be taken to be incorporated in the former Act
It may be otherwise if there were words to show that the earlier Act is to be deemed to be re enacted by the new Act
454 Union of India vs Madan Gopal Kabra   referred