State of West Bengal Vs. Manoranjan Routh & Ors. etc.
EmailAppeal: Civil Appeal Nos. 477-78 of 1973.
Petitioner: State of West Bengal
Respondent: Manoranjan Routh & Ors. etc.
Apeal: Civil Appeal Nos. 477-78 of 1973.
Judges: T.K. THOMMEN & K. RAMASWAMY, JJ.
Date of Judgment: Jul 26, 1990
Head Note:
LAND ACQUISITION
West Bengal Land Development & Planning Act, 1948:
Section 8(2) (prior to amendment) – Provision reducing and curtailing the quantum of compensation – Constitutional validity of – High Court not examining the matter with reference to Article 31C – Matter remanded to High Court – Land Acquisition Act, 1894, section 23 – Constitution of India, 1950, Article 14 and 31B.
Cases Reffered:
1. Balammal & Ors. etc. v. State of Madras & Ors. etc. 1969 (1) SCR 90.
2. P. Vajravelu Mudaliar v. Special Deputy Collector Madras & Anr. 1965 (1) SCR 614.3.
3. The State of West Bengal & Ors. v. Nabha Kumar Seal, 1961 (1) SCR 368.
2. P. Vajravelu Mudaliar v. Special Deputy Collector Madras & Anr. 1965 (1) SCR 614.3.
3. The State of West Bengal & Ors. v. Nabha Kumar Seal, 1961 (1) SCR 368.
JUDGEMENT:
O R D E R
1. These appeals by the State of West Bengal arise from the judgment of the Calcutta High Court in C.R. Nos. 2565/68 and 1/68 which had been transferred to the High Court under Article 228 of the Constitution. The cases arose from proceedings initiated under the West Bengal Land Development & Planning Act, 1948 (“the Act”)
2. The relevant question which arose before the High Court was whether the provisions of Sub-section (2) of section 8 of the Act relating to section 23 (2) of the Land Acquisition Act. 1984, has reduced and curtailed the quantum of compensation payable under the parent Act and is also violative of Article 14 of the Constitution and if so whether it is saved by Article 31B of the Constitution and the Ninth Schedule thereto”. The High Court held, rightly in our view, that sub-section (2) of section 8 was not specified in the Ninth Schedule and Article 31B had no application in so far as that sub-section was concerned. Sub-section (2) was inserted in the Act by an amendment of the section after the Act itself had been included in the Ninth Schedule. The subsequent amendment was, therefore, not saved by Article 31B.
3. Following the principles laid down by this Court in P.Vajravelu Mudaliar v. Special Deputy Collector Madras & Anr. (1965) 1 SCR 614 Balammal & Ors. etc. v. State of Madras & Ors. etc. (1969) 1 SCR 90 and other cases, the High Court held that sub-section (2) of section 8 of the Act was invalid because it violated Article 14 of the Constitution and struck down the sub-section.
4. Sub-section (2) of section 8 had been introduced by Act 23 of 1955. It was in force at the time of the acquisition in question. It may, however, he noticed that by the West Bengal Act 67 of 1978, sub-section (2) of section 8 was substituted w.e.f. 6.3.79, as a result of which the amount referred to in sub-section (2) of section 23 of the Land acquisition Act. 1894 became payable. The amendment reads as follows:
“In sub-section (2) section 8 of the West Bengal Land Development and Planning Act, 1948, for the words brackets and figures ‘but no amount referred to in sub-section (2) of section 23 of the said Act shall be included in the award’, the words, brackets and figures ‘and the amount referred to in sub- section (2) of section 23 of the said Act shall also be included in the award’ shall be substituted.”
5. It is contended on behalf of the State that the High Court considered the vires of sub-section (2) of section 8 only in the light of Article 14 and not in the light of Article 31C. Counsel submits that being a constitutional question, the vires of the sub-section ought to be considered with reference to all the relevant provisions of the Constitution. He says that this a case where Article 31C is clearly attracted. In view of the President’s assent having been obtained for the enactment of the relevant provision, if the court had considered sub-section (2) of section 8 with reference to the constitutional principles enshrined, in Article 31C and Article 39(b) and (c), the Court would not have come to the conclusion, which it did, for, in that event it would necessarily have had to conclude that Article14 was not applicable in testing the validity of the impugned provision. Counsel further says that, as stated by this Court in the State of West Bengal & Ors.v. Nabha Kumar Seal – (1961) SCR 368, the object of the Act was to meet an urgent situation, namely “resettling immigrants who had to leave their hearth and home on account of circumstances beyond their control.” Counsel, therefore, submits that an opportunity should be given to the State to reagitate the question in the light of Article 31C and connected provisions.
6. Mr. N.R. Chaudhary, appearing for the Respondent-land owner, contends that the Act gives no indication that Article 31C was attracted. The State had no such case in the High Court. There was neither plea nor argument on the point. It is for the first time that the argument based on Article 31C has been urged at the bar in this Court. Counsel further submits that the very fact that sub-section (2) of section 8 was substituted subsequent to the acquisition in question shows that the legislature did not intend to deprive the owners of land the full compensation as provided under the Land Acquisition Act. The legislature had no intention to treat persons whose properties have been acquired under this Act differently from others whose properties are acquired under the Land Acquisition Act. If Article 31C was in the mind of the legislature either at the time of the enactment of the Original Act or at the time of the amendment in 1978, the legislature would not have made provision for payment of solatium as provided in the Land Acquisition Act.
7. Mr. Chaudhary’s arguments are weighty. Nevertheless, counsel for the State is justified in contending that, being a constitutional question, the matter ought to be examined with reference to Article 31C, particularly because the object of the legislature in introducing the Act was with a view to solving a difficult problem which had arisen at the relevant time, although fortunately it has since abated as seen from the subsequent amendment re-introducing the concept of solatium in the computation of the amounts payable to the owner. But at the relevant time, solatium was not payable. The object of the legislature then was to give effect to the legislative policy enshrined in Article 39 (b) and (c) and the protection of Article 31C, as against any attack on the ground of discrimination, was available in full force. Unfortunately, this argument, though on the face of it weighty, had not been earlier thought of by the State.
8. Taking into account the facts and circumstances of this case, we are of the view that it would be just and fair that the parties are given a fresh opportunity to amend their pleadings and agitate their, respective contentions as regards the validity and applicability of sub-section (2) of section 8, as it stood at the relevant time by remanding this case for re-examination of the question by the High Court. The High Court will also have to consider the validity of the argument now urged by the respondents’ counsel regarding, what he calls the retrospective operation of the amendment of 1978. We do not of course express any view on the respective contentions of the parties.
9. Accordingly, we set aside the judgment of the High Court and remand the case to that High Court for fresh consideration. The parties shall appear before the High Court on 21.9.1990 for further directions of that Court. The appeals are disposed of accordingly, No costs.
1. These appeals by the State of West Bengal arise from the judgment of the Calcutta High Court in C.R. Nos. 2565/68 and 1/68 which had been transferred to the High Court under Article 228 of the Constitution. The cases arose from proceedings initiated under the West Bengal Land Development & Planning Act, 1948 (“the Act”)
2. The relevant question which arose before the High Court was whether the provisions of Sub-section (2) of section 8 of the Act relating to section 23 (2) of the Land Acquisition Act. 1984, has reduced and curtailed the quantum of compensation payable under the parent Act and is also violative of Article 14 of the Constitution and if so whether it is saved by Article 31B of the Constitution and the Ninth Schedule thereto”. The High Court held, rightly in our view, that sub-section (2) of section 8 was not specified in the Ninth Schedule and Article 31B had no application in so far as that sub-section was concerned. Sub-section (2) was inserted in the Act by an amendment of the section after the Act itself had been included in the Ninth Schedule. The subsequent amendment was, therefore, not saved by Article 31B.
3. Following the principles laid down by this Court in P.Vajravelu Mudaliar v. Special Deputy Collector Madras & Anr. (1965) 1 SCR 614 Balammal & Ors. etc. v. State of Madras & Ors. etc. (1969) 1 SCR 90 and other cases, the High Court held that sub-section (2) of section 8 of the Act was invalid because it violated Article 14 of the Constitution and struck down the sub-section.
4. Sub-section (2) of section 8 had been introduced by Act 23 of 1955. It was in force at the time of the acquisition in question. It may, however, he noticed that by the West Bengal Act 67 of 1978, sub-section (2) of section 8 was substituted w.e.f. 6.3.79, as a result of which the amount referred to in sub-section (2) of section 23 of the Land acquisition Act. 1894 became payable. The amendment reads as follows:
“In sub-section (2) section 8 of the West Bengal Land Development and Planning Act, 1948, for the words brackets and figures ‘but no amount referred to in sub-section (2) of section 23 of the said Act shall be included in the award’, the words, brackets and figures ‘and the amount referred to in sub- section (2) of section 23 of the said Act shall also be included in the award’ shall be substituted.”
5. It is contended on behalf of the State that the High Court considered the vires of sub-section (2) of section 8 only in the light of Article 14 and not in the light of Article 31C. Counsel submits that being a constitutional question, the vires of the sub-section ought to be considered with reference to all the relevant provisions of the Constitution. He says that this a case where Article 31C is clearly attracted. In view of the President’s assent having been obtained for the enactment of the relevant provision, if the court had considered sub-section (2) of section 8 with reference to the constitutional principles enshrined, in Article 31C and Article 39(b) and (c), the Court would not have come to the conclusion, which it did, for, in that event it would necessarily have had to conclude that Article14 was not applicable in testing the validity of the impugned provision. Counsel further says that, as stated by this Court in the State of West Bengal & Ors.v. Nabha Kumar Seal – (1961) SCR 368, the object of the Act was to meet an urgent situation, namely “resettling immigrants who had to leave their hearth and home on account of circumstances beyond their control.” Counsel, therefore, submits that an opportunity should be given to the State to reagitate the question in the light of Article 31C and connected provisions.
6. Mr. N.R. Chaudhary, appearing for the Respondent-land owner, contends that the Act gives no indication that Article 31C was attracted. The State had no such case in the High Court. There was neither plea nor argument on the point. It is for the first time that the argument based on Article 31C has been urged at the bar in this Court. Counsel further submits that the very fact that sub-section (2) of section 8 was substituted subsequent to the acquisition in question shows that the legislature did not intend to deprive the owners of land the full compensation as provided under the Land Acquisition Act. The legislature had no intention to treat persons whose properties have been acquired under this Act differently from others whose properties are acquired under the Land Acquisition Act. If Article 31C was in the mind of the legislature either at the time of the enactment of the Original Act or at the time of the amendment in 1978, the legislature would not have made provision for payment of solatium as provided in the Land Acquisition Act.
7. Mr. Chaudhary’s arguments are weighty. Nevertheless, counsel for the State is justified in contending that, being a constitutional question, the matter ought to be examined with reference to Article 31C, particularly because the object of the legislature in introducing the Act was with a view to solving a difficult problem which had arisen at the relevant time, although fortunately it has since abated as seen from the subsequent amendment re-introducing the concept of solatium in the computation of the amounts payable to the owner. But at the relevant time, solatium was not payable. The object of the legislature then was to give effect to the legislative policy enshrined in Article 39 (b) and (c) and the protection of Article 31C, as against any attack on the ground of discrimination, was available in full force. Unfortunately, this argument, though on the face of it weighty, had not been earlier thought of by the State.
8. Taking into account the facts and circumstances of this case, we are of the view that it would be just and fair that the parties are given a fresh opportunity to amend their pleadings and agitate their, respective contentions as regards the validity and applicability of sub-section (2) of section 8, as it stood at the relevant time by remanding this case for re-examination of the question by the High Court. The High Court will also have to consider the validity of the argument now urged by the respondents’ counsel regarding, what he calls the retrospective operation of the amendment of 1978. We do not of course express any view on the respective contentions of the parties.
9. Accordingly, we set aside the judgment of the High Court and remand the case to that High Court for fresh consideration. The parties shall appear before the High Court on 21.9.1990 for further directions of that Court. The appeals are disposed of accordingly, No costs.
