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

2. The Act the provisions of which we shall set out and examine later empowered the State Government to notify areas of the State as "Kans infested areas" and on such notification officers of the State were enabled to enter on the lands within the notified areas and conduct deep ploughing tractorisations operation with a view to eradicate the kans. We might mention even here that Kans are a species of weeds which infest large areas of land in and around the former State of Bhopal now forming part of Madhya Pradesh. The weeds are hardy, quick growing rapidly expanding the area of their infestation and sap the fertility from the soil and thus lead to very poor yield of the land and if the growth is more extensive, practically prevent any crops. The Act provided for the cost incurred in these eradication operations being recovered from the farmers on whose lands the tractorisation was effected. Acting under the said law, considerable extents of land in the former State of Bopal were tractorised and demands were made on the owners of the lands for the payment of the charges claimed as due. Five of these farmers on whom these demands were made thereupon filed petitions under Art. 226 before the Judicial Commissioner, Bhopal challenging the constitutionality of the Act as well as the legality of the levy, even assuming the law to be valid, and these petitions were allowed, and the learned Judicial Commissioner holding the Act to be unconstitutional and the levy illegal, granted the declaration and mandamus prayed for. The appellants thereafter applied for and obtained from the Judicial Commissioner certificates of fitness under Art. 133 (1) (c) and have preferred the appeals which are now before us.We shall refer to the facts in Case 18 of 1954 from which C. A. 379 of 1959 has arisen as illustrative of the rest. On January 18, 1951 a notification was issued by the Chief Commissioner under S. 4 (1) of the Ordinance declaring all the villages in seven tehsils which were set out in it as Kans areas and this was published in the Gazette on January 27, 1951. This notification was amended by a further notification dated May, 30, 1951 by which all the villages in two more tehsils were added to the original seven. Among these newly added was Tehsil Huzur in which the lands of the petitioners who number thirty, were situate. Needless to add that this amendment was also published in the Gazette. Subsequently on November 21, 1952, there was a notification stating inter alia that 10 named villages in Tehsil Huzur were being token over for tractorisation operations "during the ensuing season" and after this these operations were conducted on the lands of the petitioners. Thereafter on February 4, 1953, a communication was addressed by the Land Reclamation Officer, Bhopal to the Tehsildar, Huzur among other Tehsils which read, to quote the material passageforward herewith demand lists of villages of four Tehsil in respect of the tractorisation charges for the season 1951-52. Pending final decision regarding exact rates of Bush clearance and ploughing, it has been found advisable that collection may be made at the rate of Rs. 10/- per acre towards 1st instalment of the demand. As soon as the rates are finalised intimation as to the exact rate will be sent to you to adjust the accountwas finalised at a later date on receipt of intimation from the Government of India on August 12, 1953, but the figure was modified slightly in March 1954 and again in October, 1954 by a revision to a lower figure but nothing turns on the modifications, because the challenge in the petitions to the demand does not turn on the quantum of the levy or its unreasonableness quoad the service rendered. When demands were made on the petitioners for the payment of the first instalment at Rs. 10/- per acre they filed the petition 18 of 1954 and sought relief primarily by way of: (1) a declaration that the Ordinance and the Act which repealed and re-enacted it with retrospective effect were unconstitutional and void, (2) a permanent injunction restraining the State and its authorities from enforcing the demands on them. The petition also prayed for certain other reliefs which were not granted and are no longer material. The Judicial Commissioner substantially allowed the petition and granted the principal reliefs sought and hence this appeal. As stated earlier, the contents of the other petitions are substantially the same, and all these five were dealt with by a common judgment and so it is unnecessary to set them out

Reasoning:
. 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.