Case ID: 942

Judgment:
Appeal No. 212/55. 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 (1)(c) 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 19(1)(f) 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 19(1)(f). But the Bench also examined the provisions of the Act in the light of article 19(1)(f) 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 31(2) and article 19(1)(f). 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: "5(1). 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 5(2) 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. (d)(i) 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	 19(1)(f) and 31(2) 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 19(1)(f) and 31(2) 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:
By a notification under section 4 of the West Bengal Land Deve lopment and Planning Act	 1948	 the Government declared that certain plots of land belonging to the respondent were needed for the settlement of immigrants from East Pakistan and for improving living conditions in the locality. Thereafter a second notification was issued by the Government under section 6 read with section 7 of the Act declaring that the plots covered by the previous notification were needed for the same purpose as stated therein. When the Government started to erect structures on the land thus acquired 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 tile Act. The petition was heard by a judge of the High Court sitting singly who negatived all the contentions of the petitioner and discharged the rule. On appeal by the respondent under the Letters Patent	 a Division Bench of the High Court held that the Act did not infringe the provisions of articles 19(i)(f) and 31(2) of the Constitution. The High Court further held that it was incumbent on the State Government to frame a development scheme after possession of the land had been taken even though the Government was entitled to deal with the land on an emergency basis under section 7 of the Act	 which runs thus: " 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 ". The High Court allowed the respondent 's appeal and directed a writ of mandamus to issue to the Government requiring them to proceed to frame a development scheme in terms of the Act. On appeal by the State of West Bengal on a certificate granted by the High Court	 369 Held	 that the High Court was in error in issuing the mandamus against the appellants. Section 7 of the Act com pletely dispensed with the statutory necessity of preparing a scheme of development as envisaged in section 5 of the Act in cases where the Government had taken the decision that it was necessary to proceed further with the acquisition proceedings without waiting for a development scheme. No discrimination was implicit in the provisions of section 7 of the Act and no fundamental right of the appellant was infringed either under article 14 or articles 19(1)(f) and 31(2) of the Constitution.