Case: State Of Bhopal And Ors Vs. Champalal And Ors

6, which are the key, provisions of the Act, Mr. Sen conceded that it would not be necessary to consider the validity of the other provisions and we accordingly refrain from doing so.14. This takes us to the second principal ground on which the respondents have succeeded, viz., that even if the Act be valid, the provisions of S. 7 were not complied with and as a result the demand made on the respondents for payment of an instalment of the tractorisation charges was unauthorised and illegal. It was Mr. Sens contention that the learned Judicial Commissioner was in error in upholding this contention The point arises this way. Section 5 makes provision for the constitution of a Reclamation Board. The Board consisted at the relevant date of the Development Commissioner as the Chairman, six non-official members who were members of the Legislative Assembly of the State besides five other officials with the Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts this Board with the duty first of ascertaining the total expenditure incurred, or to be incurred, and then to equitably apportion it among those land-owners on whose lands eradication operations have been or would be conducted. Now, in the present case the facts were that the Central Government incurred the expenditure in the first instance by utilising the Central Tractor Organisation-a body set up by the Central Government-and then intimated to the State, Government both the total amount which they had expended andwhich was repayable to them by the State, as well as the manner in which the amount thus recoverable from the state was to be allocated among the several landholders. It is common ground that the Reclamation Board never met and consequently neither computed the total expenditure incurred or to be incurred for the eradication operations, nor did it make the allocation among the holders of the lands on which eradication operations were conducted. After referring to these features the respondents pointed out in their petitions that, without the requirements of S.7 being satisfied, they were informed of the contents of a letter dated October 29, 1954 from an Under Secretary to the Government of India to the Secretary to the Government of Bhopal-Development Department in which the amount to be recovered from the land owners for the deep ploughing of their lands was mentioned which amount, the revenue officials of the State were directed to recover. It is now admitted that this is the basis on which the impugned demands were made on the respondents.15. The learned Judicial Commissioner held that the terms of S. 7 were mandatory and that unless the mind of the Reclamation Board was brought to bear on the question, and the Board computed the total expenditure as well as the proper allocation of this sum among the several land-owners no lawful demand could be made under S. 8, nor could the same be recovered from the respondents. We find ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by S. 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by S. 7. The notices of demand were, therefore, properly quashed as illegal.16. It is only necessary to add that the validity of these notices of demand would arise only in the event of the crucial provisions of the Act-S. 4 and S. 6-being valid and in view of our conclusion as regards the constitutional validity of those provisions, even in the event of the terms of S. 7 being complied with there could be no lawful demand made on the respondents.17. There remain two minor points which were urged by Mr. Sen but neither of these need detain us long. The first of these was the effect on the present demand of the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 1957. By this enactment the Madhya Pradesh Act which is somewhat analogous to but not identical with the Act now under consideration was extended to the Bhopal area. The argument of Mr. Sen was that by virtue of this extension of the Madhya Pradesh Act, even if the Bhopal Act were invalid, the demand made could be justified as made under the Madhya Pradesh Act. But the extension of the Act, in the present case, is of no avail to the appellant because that Act was brought into force only prospectively and not retrospectively. If therefore, the demand when made was illegal or invalid it cannot be sustained on the basis of the Madhya Pradesh Act. In the circumstances, it is unnecessary for us to consider the provisions of the Madhya Pradesh Act to find out how far, if retrospective they would affect the validity of the demand.18. The last of the points urged was that given it the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of S. 7, still as eradication operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of S. 70 of the Indian Contract Act were attracted and that on the bash of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstance that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case file on this court, we have not thought it proper to permit learned counsel to urge the ground at this stage.19.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]. The preamble and long title of the Act make it clear that the enactment is one "for the reclamation and development of lands by the eradication of kans weed in certain areas in the State, the purpose being specified as the eradication of kans in area infested with it. The legislative policy behind the provision is thus writ large, and what remains and is left to the executive is to carry out that mandate and give effect to the law so as to achieve the purposes of the Act.  The areas infested is manifestly not capable of legislative definition but must obviously be left to the executive to determine having regard to the intensity of the weed infestation and its distribution. There is thus legislative guidance offered of the criteria which must be borne in mind by the Government before any area is declared as a kans area and if the determination of the particular area is left to the executive it cannot be said to be any delegation of legislative power atthe circumstances, it is clear that possession of the Reclamation officer is exclusive and amounts to raking possession within Art. 31(2).Nor is there any force in the point about the shortness of the duration during which the owner is deprived of possession or rather the period during which the State through the Reclamation Officer is in possession of the land. As regards this it might be pointed out that the Act itself specifies no period of time within which the reclamation should be completed. Nor are we satisfied that the mere fact that this duration is not considerable has any materiality or relevance for considering whether there has been a taking possession of the land by the State.If the period during which the owner is deprived of possession be short the compensation payable to him might be less but that does not, in any manner, affect the reality of the dispossession or rather the taking of possession by the State within the meaning of Art. 31(2). We thus reach the position that there has been a taking possession by the State of the immovable property of the owner within thethe first place, the framers of the Act knew what compensation was and they made provision for compensation in S. 9 in respect of the injury suffered by the owner. In the context of this provision and its language they could certainly not be treated as considering the abstention from charging land revenue during the period when the land was not available to the owner as compensation. Secondly, even a cursory examination would demonstrate the fallacy underlying this submission. If the exemption from payment of land revenue should suffice as compensation for deprivation of possession for a time, it would follow that for possession of property being taken for ever or say for 99 years exemption from land revenue for that period would suffice as compensation. This would illustrate the utter untenability of this argument. Normally speaking, land revenue is charged on the basis that the owner is free under the law to utilise the land for profitable use. When, therefore, he is deprived of the opportunity of so utilising it, the State exempts him from payment of the same. This can in no sense be treated as compensation for the deprivation of possession. Besides, the theory of land revenue is that it represents a proportion of the income which the owner derives from the land, and is in theory fixed on the basis of allowing him some surplus over the States share.When by deprivation of possession he is prevented from making any income from the land, the exemption from payment of land revenue, offers him no compensation, only it alleviates his loss. In this view it is unnecessary for us to consider the question whether under Art. 31(2) as it stood at the relevant date, the compensation even if provided need be adequate and how far the adequacy could be justiciable. We have, therefore, no hesitation in saying that S. 4(1) read with S. 6(1)(b) is unconstitutional as violative of Art. 31(2).Sen conceded that it would not be necessary to consider the validity of the other provisions and we accordingly refrain from doingfind ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by S. 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by S. 7. The notices of demand were, therefore, properly quashed as illegal.16.The last of the points urged was that given it the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of S. 7, still as eradication operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of S. 70 of the Indian Contract Act were attracted and that on the bash of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstance that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case file on this court, we have not thought it proper to permit learned counsel to urge the ground at this stage.