TMI Blog1953 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Assam under the Assam Land (Requisition and Acquisition) Act, 1948 (Act 25 of 1948). This area has not yet been allotted, settled or otherwise utilised by the Government for the purposes of the Act. On 15-10-51, the S. D. O., Sibsagar, passed an order requisitioning another area measuring 625 bighas, under the same Act as amended by Assam Act 16 of 1949. In the order, it was stated that the land requisitioned was for allotment to the landless, indigenous actual cultivators. The land requisitioned was described in a schedule attached to the order. 3. The petitioner appealed from the order of the S. D. O. Amongst other grounds, it was urged in appeal that the land requisitioned was already under cultivation and it had buildings in which the owners resided for more than a year immediately preceding the date of the order, and, therefore, the land could not form the subject matter of requisition. The appeal was heard by the Deputy Minister of Revenue (Opposite Party No. 3) and dismissed. His order shows that the appeal petition was read as also a report submitted by the S. D. O., Sibsagar, incorporated in his letter, dated 8-2-52. A hearing was also given to the advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the whole of it had been allotted, occupied and was being developed for purposes recognised by the Act. It was further stated that the land was requisitioned with the object of allotting it to the landless indigenous actual cultivators. In regard to the report of the S. D. O. to the Deputy Minister, it was alleged that the report was read by the Deputy Minister in the presence of the appellant's advocate before he began his work. The petitioner's advocate had thus an opportunity of controverting it. It is denied that the persons who applied for review of the appellate order were in actual possession of the land requisitioned. The correctness of the legal contentions raised in the petition was questioned, and similarly the allegations about the mala fides of the authorities acting under the Act were denied. It was affirmed that the requisition was for a public purpose and in the interest of landless and indigenous cultivators. It was further stated that the land having been requisitioned under the authority of law, there was no question of violation of any fundamental right in property. The original order of the S. D. O. and the appellate order of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises and lands under the Act must be for public purposes. It is also contended that the purposes specified in the Act, and particularly the purpose for which the land has been requisitioned in this case, are not public purposes. The validity of the provisions relating to compensation also has been impugned. The contention resolves itself into the question whether the Act does not fulfil the requirements of Article 31, Clause (2) of the Constitution. 13. Before dealing with these contentions it is necessary to reproduce the relevant provisions of the impugned Act as amended up to date. The preamble is to the following effect: Whereas it is expedient to provide for the requisition and speedy acquisition of premises and land for certain purposes. Section 2 of the Act gives the definitions of certain expressions used in the Act. Section 3, as amended up to date, is in the following terms: 3 (1). If in the opinion of the Provincial Government or any person authorised in this behalf by the Provincial Government, it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of which shall be determined by the Collector in the manner and in accordance with the principles set out in Sub-section (1) of Section 23 of the Land Acquisition Act, 1894. Provided that the market value referred to in Clause 1 of Sub-section (1) of Section 23 of the said Act shall, in respect of any land acquired under this Act be deemed to be the market value of such land on the date of publication of the notice referred to in Sub-section (1) of Section 4; Provided further that if such market value exceeds by an amount the average of the aggregate market value of the land for three consecutive years immediately preceding the 31st day of March, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the notice referred to in Sub-section (1) of Section 4, the amount of such excess shall not be taken into consideration. (IA).--In the case of land included in any grant or settlement made for special cultivation, if such land is lying fallow or uncultivated or is not utilised for the purpose for which the grant or settlement was made or for the purpose incidental thereto, then the compensation paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Act, 1935, as adopted was in force. Dr. Gupta the learned counsel for the petitioner points out that the Provincial Legislative List, which is List 2 of the 7th schedule to the Government of India Act, 1935, by entry No. 9, authorises legislation for compulsory acquisition of land. He contends that acquisition does not include requisition and urges further that there is no other entry in the Provincial Legislative List which would authorise requisition. He also relies upon Section 299 of the Government of India Act, 1935, in support of his contention. That section also provides for compulsory acquisition as distinguished from requisition. 15. The learned Advocate-General has contended, relying on,--'Shyam Krishan v. State of Punjab', that requisition is included in acquisition. Entry No. 9 of the Provincial List II, therefore, justifies legislation for requisitioning. He also relies on entry No. 21 of the Provincial List II of the 7th schedule, which provides as follows: Land, that is to say, rights in or over land and tenures, including the relation of landlord and tenant, and the collection of rents, transfer, alienation and devolution of agricultural land, land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant or a licensee. The authority requisitioning may hold the property for an indefinite period. It may release it at its pleasure. It is not governed by the Tenancy Laws of the State. They do not apply to it. The Government, when requisitioning property, therefore, would not exactly be in the position of a tenant. It may not also be described as a licensee, for, the requisitioning is a compulsory process and the possession of the Government is not by reason of any licence given or granted by the owner or the proprietor of the property, but by reason of the compulsion which may be exercised under the provisions of the Statute. The property is held under the provisions of a special or local law. It may be taken for temporary occupation under the L. A. Act. The relationship is governed by the Act under which the requisition is made. But it is clear that ownership of no particular kind is acquired by requisitioning, for if ownership is acquired, it should be capable of transfer. Even the requisitioning authority has no right to transfer the property requisitioned unless it has been acquired. The right is personal. The requisitioning authority should hold it subject to the conditions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes. The scheme of the Act is not to leave it to the Executive to determine whether there is a public purpose for requisitioning or acquiring land or premises under the Act. It merely authorises both requisition and acquisition for certain purposes which have all been specified in Section 3. If the Act had permitted requisition for public purposes, the obligation to determine whether a purpose was public purpose, would have devolved on the executive. The Legislature laid down the purposes for which the provisions of the Act could be utilised. If the purposes specified in Section 3 of the Act, or any one of them be not public in character, it may be possible to urge that either there are no public purposes justifying the legislation, or that a certain purpose specified in Section 3 is not a public purpose. But the contention that an express statement that requisition and acquisition under the Act can only be for public purposes, is necessary to the validity of the Act, has no force. Such a statement is not necessary where the Legislature confers limited powers on the Executive and specifies the purposes in the Act itself. These purposes, however, must be public purposes, for, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles, on which, and the manner in which, it is to be determined. Clause (2) of Article 31 is wider in scope. It covers both movable and immovable property. It also permits the taking of possession which would be covered by the term 'requisition'. Section 299 of the Government of India Act, 1935, was limited to compulsory acquisition. Clause (2) of Article 31 of the Constitution provides as follows: No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which and the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an essential prerequisite to the validity of legislation authorising requisition and acquisition of private property, has been expressly provided for or by necessary implication and intendment, was a question which was necessary for the decision of that case. It assumed great importance by reason of the protection that Clause (4) of Article 31 extended to legislation covered by that clause. That question does not arise in the present case. Whether the existence of a public purpose as a condition precedent to the validity of legislation authorising acquisition or requisition of property,--has been expressly provided, or the provision is there by necessary implication or intendment, or whether it has been taken for granted as inherent in the idea of compulsory acquisition,--is immaterial for the purposes of the present case. The learned Judges of the Supreme Court were agreed that legislation authorising requisition or acquisition of private property, without public purposes, would contravene the provisions contained in Article 31(2). On this point, there is no divergence of opinion. If, therefore, any enactment of the Central or the Provincial Legislature authorises acquisition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the power vested in the Parliament to make laws is subject to the provisions of the Constitution and, therefore, to the provisions contained in Article 31, Clause (2) also. There is thus clearly a limit on legislative competence in regard to compulsory acquisition and taking possession of private property. The limit is there either stated expressly or by necessary implication. Courts, therefore, acquire jurisdiction to decide--whether legislation authorises acquisition or requisition for public purposes, and also whether the purposes specified in an Act are public purposes, or not. In--'Kameshwar Singh v. Province of Bihar' AIR 1950 Pat 392 , Sinha and Das JJ., came to the same conclusion. So did Reuben and Das, JJ. in--'Kameshwar Singh v. State of Bihar' AIR 1951 Pat 91 . Shearer J. was of the view that the legislative determination of the question was not subject to judicial scrutiny of review. This view receives no support from the decision of their Lordships of the Supreme Court. The obvious difficulty in subscribing to this view is that if legislative determination is considered as unjusticiable, the restriction imposed on legislative power by Article 31(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itizens shall have the right to adequate means of livelihood, that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These directive principles aim at transforming a Police State into a Welfare State, which is concerned with a just distribution of the material resources available in such a manner that the maximum common good results. Any purpose which is in consonance with the directive principles, would undoubtedly be a public purpose. The purposes of the Union and purposes of a State would also be regarded as purposes for which acquisition or requisition may be authorised. The implementation of the directive principles of the Constitution was held to be a public purpose in--'Suryapal Singh v. U. P. Govt.'. Mahajan, J., in--, observed The phrase 'public purpose' has to be construed according to the spirit of the times in which particular legislation is enacted.. 23. In--'Hamabai Framjee v. Secy. of State for India' AIR 1914 PC 20 . Their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artition and of the poor is covered by the directive principles, of the State. I have no doubt that the Act is not open to attack on the ground that it authorises acquisition or requisition for purposes which are not public within the meaning of Article 31(2) of the Constitution. 24. In regard to the provision relating to compensation, the original provision contained in the principal Act was that compensation shall be determined by the Collector in the manner and in accordance with the principles set out in Sub-section (1) of Section 23 of the Land Acquisition Act. The market value was to be the market value at the date of the publication of notice referred to in Section 4(1). By a provision, a ceiling or maximum price was fixed. The compensation payable could not exceed the average of the aggregate market value of the land for three consecutive years immediately preceding the 31st day of March 1948. This average was to be the amount of compensation on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the notice referred to in Section 4(1). 25. In regard to land requisitioned under Section 3, such compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide for compensation, does not do so in reality. Such a legislation would be confiscatory in nature even though its real nature may be concealed, disguised or camouflaged. The exercise of legislative power in such a case would be colourable. If a device is employed to cover up an obvious omission, this would, when seen, render the law useless and ineffective. A legislative act of this description would be characterised as a fraud on the Constitution. Where the pretence of a provision for compensation is kept, but elaborate and complicated provisions ostensibly providing for compensation actually defeat the rights to compensation--the disguised contravention cannot save the law from being wrecked on the rock of constitutionality. The imperative demand of this Article (Article 31) for a provision for compensation in conformity with its terms cannot be evaded by 'shift or contrivance'. Where such an attempt is made, there would be a case of excess or abuse of the legislative power. The learned Advocate General agrees that such a law would be outside the limits of legislative competence. It would be a colourable exercise of jurisdiction or a fraud on the Constitution and the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of the requirement would have been fatal to the validity of the Act. 34a. The word 'compensation' has been qualified. Its dictionary sense has been whittled down by the words 'and either fixes the amount of the compensation or specifies the principles on which, and the manner in which the compensation is to be determined and given'. By these words, power has been given to the Legislature to fix: the amount to be paid as compensation or to lay down the principles and the manner in which compensation may be determined. The exercise of this power is obligatory. It is noteworthy that the Article does not provide in the manner of the American Constitution that the amount determined should be just or that the principle and the manner laid down should lead to a just determination. The omission assumes significance in view of the obligation imposed on the Legislature to determine either the amount or the principle. That this omission is conscious is undoubted. Why should it be necessary for the Legislature to give the amount or frame the principle for its determination? It should be enough if there is provision for compensation and the machinery for its de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination to judicial scrutiny in the light of objective tests or standards. The language used does not give any indication of any such intention. The emphasis, on the other hand, is on legislative determination, presumably on the assumption that it may always be depended on for giving such compensation as in the changing conditions of the times may seem just or reasonable. Legislative determination, therefore, may not be tested by the implications of the word 'compensation'. 36. Under Article 19, restrictions which may be imposed on certain fundamental rights have to be reasonable--not restrictions which to the Legislature appear reasonable. Legislation imposing restrictions on fundamental rights could also be placed outside the scope of judicial review. This was not done. The idea was that legislative action in placing restrictions must conform to objective standards, so that the Legislature may not have the competence of making constitutional guarantees illusory. Rights to private property have been dealt with in the same chapter on Fundamental rights. The avoidance of the use of word 'reasonable' which would make the determination of compensation justiciable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question to the Legislature, and deliberately avoided the use of the terms which would have subjected its determination to judicial scrutiny. Whether compensation provided is just or reasonable, is a matter when may not be regarded as justiciable. When the function of determining compensation is left to the Legislature, there should be an express provision in the Constitution justifying judicial scrutiny. The right of judicial veto may not be assumed to exist in the judiciary. Our Written Constitution confers no general power of vetoing legislation on the Courts. The due process clause of the American Constitution which has been utilised in the U.S. A. for the exercise of judicial veto, has not been used in the Constitution. Wherever the power of judicial veto was intended to be given, words have been used to indicate that intention as in Article 19. 38. In the Calcutta case, when considering whether the provisions relating to compensation in that case were reasonable or not, the test applied was the principle embodied in Section 23 of the Land Acquisition Act. With great respect to the learned Judges, and with no small amount of diffidence, I feel inclined to the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate property are concerned. The scope of public purpose is also expanding. Compensation has to be adjudged under rapidly changing conditions. That matter has, therefore, been left to the Legislature, so that it may fix compensation in view of the existing economic trends in the light of the policy of the State which aims at doing social justice by removing disparities of wealth and by distributing all available resources of the State in such a manner that the maximum good is achieved. A rigid adherence to the principle of Section 23, Land Acquisition Act, in all cases in the context of existing conditions, may not be universally recognised as either reasonable or just. No doubt the assumption underlying Clause (2) of the Article is that the Legislature would come to a reasonable decision in the matter of compensation, but what the Constituent Assembly intended was that it should be compensation that appears reasonable to the Legislature, and its scrutiny by objective standards was excluded expressly or at least by necessary implication. No authority from Courts outside India have been cited on this point, and perhaps rightly. They would not be of much assistance when interpreting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, from the principles contained in Section 23 is permitted to the Legislature. If payment for compulsion is not adopted as a part of the invariable standard, compensation would not be unreasonable if full value plus compensation for all consequent damage and loss is allowed. 40. Dr. Gupta has also argued that provision for compensation for acquisition and requisition of land forming part of the grant or settlement for special cultivation, if lying fallow or uncultivated or unused for purposes for which it was granted, is wholly illusory and acquisition of such land would be confiscatory in nature. 41. In regard to land which was granted or settled for special cultivation and special cultivation includes cultivation of tea and which has been lying fallow and uncultivated and has not been used for the purpose for which it was settled, a different rule for assessing compensation has been laid down. If it is requisitioned, the maximum compensation is double the revenue, if it is acquired, the maximum compensation is 10 times the revenue, whether land revenue is actually being paid or not. In the case of acquisition, the amount originally paid to the Government by the grantee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the question as to its adequacy is not justiciable. 42. Dr. Gupta has also urged that the provisions of the Act relating to requisition conflict with rights of the petitioner guaranteed to it by Article 19(1)(f). This contention has no force. Rights under Article 19(1)(f) are capable of enjoyment only if property is not acquired or requisitioned under a law validly enacted. The State has the right to deprive any person of his property under the authority of law. If the law conforms to the requirement of Article 31, the property of an individual may be taken possession of or acquired. When that contingency occurs, the individual concerned loses the property and no question of holding or disposing of that property arises. In other words, Article 19(1)(f) applies only so long as an individual has not been deprived of his property by the State under the authority of law--'Charanjit Lal v. Union of India'. 43. The next question at which the parties are at issue is the nature of the impugned orders. Under Section 3 of the Assam Act, if the Provincial Government or any other person authorised in this behalf by the Provincial Government, is of the opinion that it is nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the order is passed by an officer, and not by the Provincial Government, the appellate function which the Provincial Government may be called upon to perform, assumes a judicial or a quasi-judicial character. The answer to the question would be in the negative as when exercising appellate powers, the Provincial Government would still have the same power to confirm the order on its own opinion as it would have had if it had passed the original order itself. The nature of the proceeding depends on the approach contemplated by the Statute. The proceeding may not assume judicial or quasi-judicial character at the appellate stage merely on the ground that a right of appeal has been allowed against an administrative order. The learned counsel has relied on--'Debendra Bandhu v. State of West Bengal', in support of his contention. It seems to me that the case does not support his contention. It is easily distinguishable. The case no doubt is an authority for the proposition that a proceeding, administrative at the original stage, may assume or acquire a judicial or quasi-judicial character at the appellate stage, but it lends no support to the contention that merely because a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for a judicial approach. There is no such indication in the Act itself that a judicial approach is contemplated at any stage of the proceeding, so far as the order requisitioning the property is concerned. The learned counsel has also referred to certain observations in Hood Phillips' Constitutional Law Special Edition for India (1952) at pages 342-343. The observations relied upon are as follows: A Minister often has a complex function ending and usually beginning with administrative (executive or ministerial) powers, but at some stage for example, the holding of a public inquiry or the consideration of objections,--he is under a duty to act in a judicial manner, such as the King's Bench Division will supervise by certiorari. The whole procedure or process is called quasi-judicial because although as a whole it is administrative, there is a stage at which the Minister must act as if it were judicial. Wherever an inquiry is contemplated or objections have to be heard and disposed of, and it may be added, or where there is a duty cast by the Act or the rules framed thereunder, to allow a hearing to the person affected by the orders, the judicial approach may be indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal could have been disposed of without allowing the petitioner any hearing. 48. Dr. Gupta has further contended that even if the order was administrative and even though no judicial approach was contemplated by the Act, the appellate authority was bound to follow the principles of natural justice. He urges that a report from the S. D. O. was considered, but this report was not read out to the advocate for the appellant. The appellant in consequence did not get any opportunity to meet the facts or circumstances brought out in the report which could lead to an inference against him. The contention does not appear to me to be supported by the authorities to which reference has been made by the learned counsel. Two English cases have been relied on, namely--'R. v. City of Westminster Assessment Committee' 1940 All ER 132 and--'R. v. Architects' Registration Tribunal, Jaggar, ex parte' 1945 All ER 131 . In--'1940 All ER 132 ', it was held that the committee (assessment committee) was bound to hear and determine the objection, and the use of these words in Sub-section 6 was enough to show that the function which it was exercising was, as Lord Sumner said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Manager of the Company has put in an affidavit, in which it is stated that the allegations made in Para. 6 were based on information which he believed to be true. In the affidavit, in opposition, it is affirmed that the allegations made in Para. 6 are misleading, that the S. D. O. who had earlier submitted his report was present before the Dy. Minister who heard the appeal, that the contents of the report were read over by the Dy. Minister before the appellant's advocate before he began his arguments. The petitioner had thus full opportunity to controvert the statements contained in that report. The Dy. Minister has also put in an affidavit. In this it is also affirmed that the report submitted by the S. D. O. was read over and that the learned advocate for the petitioner was aware of the contents and had full opportunity of controverting the statements contained in the report. The affidavits from the Opposite Parties are by officers of the Government who were present and who have made the statements from personal knowledge. The affidavit from the side of the petitioner is of the Acting Manager who himself was not present. No affidavit from the advocate who appeared on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was part of the tea estate, was requisitioned by the Government and that the area has not so far been allotted or settled in conformity with the provisions of the Act. It is suggested that the area requisitioned by the order dated 15-10-51 cannot be regarded as really necessary for allotment. It is also urged that the area is under cultivation of food crops. It was not unused or surplus. The cultivation was ancillary to the purposes of tea industry which the estate is carrying on. The persons to whom land is sought to be allotted are not landless. The requisitioned land includes buildings of value wherein the owners had actually resided continually for more than a year immediately preceding the date of the said order. It was practically taking away land from one group of cultivators for giving it to another group of cultivators, and that the land was being used for charitable purposes within the meaning of the Explanation to the proviso to Section 3 (1) of the Act. 55. Whether the land is lying fallow and uncultivated and is not being used for the purposes for which the grant or settlement was made, or whether it is under cultivation for purposes incidental to the tea indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n persons were cultivating some parts of the area requisitioned, they are doing so with permission. They would be there by sufferance. It would not be taking land from them and giving to others, for, assuming that some garden employees were permitted to cultivate, they, on the petitioner's own showing, have acquired no legal rights in the land. 58. It is next contended, first, that the land requisitioned includes buildings of value wherein the owners had actually resided continuously for more than a year immediately preceding the date of the said order, and secondly, that the land is being used for charitable purposes within the meaning of the Explanation to the proviso to Section 2(1) of the Act, namely, to advance general public utility. These allegations are denied by the Opposite Party by a counter affidavit. There are allegations and counter allegations. The determination of these questions of fact is not possible on these affidavits. If it could be established that the owner landlord or the tenant continuously resided in a building for a period of one year immediately preceding the date of the order, the building could not be made the subject-matter of acquisition unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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