Case: Deputy Commissioner And Collector, Kamrup&amp; Ors Vs. Durga Nath Sarma

1. In 1954, the Assam Government took possession of the lands of , the respondent and several other persons situated in the District of Kamrup for the construction of the Pagdalia embankment. In 1955, the Assam Acquisition of Land for Flood Control and Prevention of Erosion Ordinance, 1955 (Assam Ordinance No. 2 of 1955) was passed enabling the State Government to acquire lands for works or other development measures in connection with flood control or prevention of erosion. The Ordinance was replaced by the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955 (Assam Act No. 6 of 1955) which was passed on April 11, 1955 with the assent of the President. In April 1956, the State Government passed an order in writing acquiring the lands taken over in 1954 for the construction of the Pagdalia embankment under Section 3 of Ordinance No. 2 of 1955. It seems that the reference to the Ordinance was a mistake and the acquisition was made under Act No. 6 of 1955. On April 26, 1956, the respondent was served with the notice of the acquisition. By an order dated September 10, 1959 the Deputy Commissioner, Kamrup acting on behalf of the State Government quashed the Order dated April 19, 1956 and directed that fresh acquisition proceedings underthe Land Acquisition Act, 1894 should be started. Pursuant to this order, some of the lands required for the Pagdalia embankment were acquired under the Land Acquisition Act on payment of full compensation. A draft notification for the acquisition of the respondents lands under the Land Acquisition Act was sent by the Collector of Kamrup to the Assam Government for approval, but this proposal was eventually dropped. On May 27. 1960, the Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validation) Act, 1959 (Assam Act No. 21 of 1960) was passed with the assent of the President. In November 1960, the State Government passed an order for the acquisition of the respondents lands under Sec. 3 of the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act. It was common case before the High Court that this acquisition was made under Sec. 3 of Act No. 21 of 1960. On November 6 1960, the Collector of Kamrup served a notice upon the respondent informing him of the acquisition order and asking him to submit his claim for compensation. On September 30, 1961, the respondent filed a writ petition in the Assam High Court asking for an order declaring Act No. 6 of 1955 and Act No. 21 of 1960 to be invalid and directing the State Government to forbear from giving effect to the notices issued thereunder. The High Court allowed the petition and issued a writ of mandamus directing the State Government not to give effect to the notices issued under Act No. 21 of 1960. The present appeal has been filed under a certificate granted by the High Court.

Reasoning:
We are unable to accept this contention. It is now well settled that Article 31A (1) (a) envisages only laws concerning agrarian reform. In Kochunis case, (1960) 3 SCR 887     at pp. 897-905 = (AIR 1960 SC 1080   at pp. 1085-1089), the Court by a majority decision held that the Madras Marumakkachayam (Removal of Doubts) Act, 1955 which deprived a sthanee of his properties and vested them in the tarwad contravened Article 19 (1) (f) and was not protected by Article 31A and that Article 31A saved laws for agrarian reform only and did not enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. In Ranjit Singh v. State of Punjab, (1965) 1 SCR 82   = (AIR 1965 SC 632  ), the Court held thatthe East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 as amended by Act No. 27 of 1960 was protected by Article 31A as the general scheme of the Act was definitely agrarian reform and under its provisions something ancillary thereto in the interest of rural economy had to be undertaken to give full effect to the reforms. In P. V. Mudaliar v. Special Deputy Collector, Madras, (1965) 1 SCR 614   = (AIR 1965 SC 1017  ), the Court held that the Land Acquisition (Madras Amendment) Act, 1961 providing for the acquisition of lands for housing scheme was not a law with reference to any agrarian reform and was not protected by Art. 31A.In the light of these decisions, we must hold that Act No. 6 of 1955 is not a law concerning agrarian reform and is not protected by Article 31A. The Act is a purely expropriatory measure. It provides for acquisition of lands both urban and agricultural for executing works in connection with flood control or prevention of erosion. A piece of land acquired under the Act need not be an estate or part of an estate. It has no relation to agrarian reform, land tenures or the elimination of intermediaries.We may add that there is nothing on the record to show that the respondents lands are estate or parts ofClauses (1) and (2) of Art. 31 were limitations on the executive and the legislative powers of the State to deprive any person of his property. Clause (2) imposed the limitation that the law authorising the taking of property for public purposes must provide for compensation for the property. Clause (3) imposed the additional limitation that if such a law was made by the legislature of a State, it must have received the assent of the President. Clauses (4) and (6) saved certain laws from the operation of Cl. (2) and those laws could not be called in question in any Court on the ground that it contravened Cl. (2). Clause (5) (a) provided that nothing in Cl. (2) would affect any existing law other than a law to which the provisions of Cl. (6) applied. Under Cls. (5) (b) (i) and (5) (b) (iii) nothing in Cl. (2) would affect the provisions of laws made for the purpose of imposing or levying any tax or penalty and certain laws which respect to evacuee property. We are notthis appeal with the interpretation of Cls. (4), (5) (a), (5) (b) (i), (5) (b) (iii) and 6. We express no opinion on their interpretation. Clause (5) (b) (ii) provided that nothing in Cl. (2) would affect the provisions of any law which the State might make after the commencement of the Constitution "for the promotion of public health, or the prevention of danger to life or property".It is to be noticed that Cl. (5) (b) (ii) saved laws for the promotion of public hearth or the prevention of danger to life or property. It did not save laws for the acquisition of property. We are satisfied that Cl. (5) (b) (ii) was not intended to except laws for the acquisition of property from the purview of Cl. (2). Any substantial abridgment of the rights of ownership including destruction and injurious affection of the property and taking away its possession and enjoyment from the owner amounted to a taking of property within the purview of Cl. (2) as interpreted in Subodh Gopals case, 1954 SCR 587  : (AIR 1954 SC 92  ) and Dwarkadas Shrinivass case, 1954 SCR 674 (AIR 1954 SC 119)  .A law for promotion of public health or for prevention of danger to life or property some times has to provide for destruction and impairment of value of private property and the taking of temporary possession of the property by the State. It may be necessary to destroy contaminated food or to burn plague-infested buildings for the promotion of public health, to pull down a building to prevent a fire from spreading and consuming other buildings in the locality, to demolish a building in a ruinous condition endangering the safety of its occupants and other persons in its vicinity. The destruction and the temporary taking of property for such purposes, though necessary for promoting public health or preventing danger to life or property, amounted to taking of property within Cl. (2). But For Cl. (5) (b) (ii), a law authorising such a taking of property would have been invalid unless it provided for compensation. Clause (5) (b) (ii) saved such laws from the operation of CL (2) and those laws were not invalid because they authorised such a taking without payment of compensation. A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of Cl. (5) (b) (ii). But it is not possible to say that a law for permanent acquisition of property is such a law. The object of the acquisition may be the opening of a public park for the improvement of public health or the erection of an embankment to prevent danger to life or property from flood. Whatever the object of the acquisition may be, the acquired property belongs to the State. The State is free to deal with the property as it chooses after the acquisition. It may close the public park and use the property for other purposes. The river may recede or change its course so that it may no longer be necessary to keep the embankment and the State may then sell the property and appropriate the sale proceeds to its own use. Clause (5) (b) (ii) was intended to be an exception to Cl. (2) and must be strictly construed.Acquisitions of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act, and it could not have been intended that such acquisition could be made under laws coming within the purview of Cl. (5) (b) (ii) without payment of compensation. We have come to the conclusion that Cl. (5) (b) (ii) did not protect laws for acquisition of properties from the operation of Cl (2) as it stood before the Constitution (Fourth Amendment)hold that a law for acquisition of property is not protected by Cl. (5) (b) (ii) of Art. 31 as it now stands after the Constitution (Fourth Amendment) Act. In our opinion Act No. 6 of 1955 is a law for acquisition of property and not a law for preventing danger to life or property and is not protected by Cl. (5) (b) (ii) from the operation of Cl.is well known that since the assessment of land revenue in Assam many years ago the market value of lands has increased by leaps and bounds. The latter part of S. 6 (1) makes a pretence of saying that in determining the compensation the Collector shall take into account the value of the land as at the date of the acquisition and other factors but this is meaningless considering that under the first part of S. 6 (1) the compensation cannot exceed a fixed multiple of the annual land revenue. Section 6(2) provides that the owner shall get compensation for the building or structure if any a sum equivalent to the sale proceeds of the materials of the same plus 15 per cent thereof. The sale proceeds of the materials cannot be regarded as a just equivalent of the value of the building as it stood at the time of the acquisition. In our opinion Act No. 6 of 1965 does not ensure payment of a just equivalent of the land appropriated and is violative of Art. 31 (2) as it stood before the Fourthour opinion the classification of land required for works and other measures in connection with flood control and prevention of erosion and land required for other public purposes has no reasonable relation to the object sought to be achieved. viz., acquisition of the land by the State. In either case, the owner loses his land and in his place the State becomes the owner. There is unjust discrimination between owners of land similarly situated by the mere accident of some land being required for purposes mentioned in Assam Act No. 6 of 1955 and some land being required for other purposes. We hold that Assam Act No. 6 of 1955 is violative of Art.are unable to accept this contention. In support of his contention, counsel drew our attention to the provisions of Ss. 2, 3, 4 and 5. Under S. 2, the land deemed to be acquired under the earlier Act vests and is deemed to have vested in the State Government from the date the land was actually taken possession of. Under S. 3, the Collector is enjoined to assess the value of the land deemed to have been acquired under S. 2 in accordance with the principles laid down in S. 6 and to make an award under S. 8 of the earlier Act and the owner is entitled to claim certain interest. Section 4 protects- action taken in good faith in connection with the land deemed to have been acquired under S. 2. Under S. 5, except as otherwise provided under the Act, the provisions of the earlier Act shall apply mutatis mutandis in respect of the acquisition of land deemed to have been acquired under S. 2.It is to be seen that the core of Assam Act No. 21 of 1960 is the deeming provision of S. 2 under which certain lands are deemed to be acquired under the earlier Act. As this deeming provision is invalid, all the other ancillary provisions fall to the ground along with it. The later Act is entirely dependent upon the continuing existence and validity of the earlier Act. As the earlier Act is unconstitutional and has no legal existence, the provisions of Act No. 21 of 1960 are incapable of enforcement and are invalid.In view of this conclusion, the other questions with regard to the validity of Act No. 21 of 1960 do not arise. The Assam High Court rightly held that the notices of acquisition issued under Assam Act No. 21 of 1960 are invalid.