STATE OF BHOPAL AND ORS. v. CHAMPALAL AND ORS.
Citation: [1964] 6 S.C.R. 35; 1963 INSC 261
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA, K.N. WANCHOO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR
Judgment date:
Case summary
1963 INSC 261. Supreme Court of India judgment dated 1963-12-19. STATE OF BHOPAL AND ORS. v. CHAMPALAL AND ORS. Read the judgment and case details on...
Judgment text
·6 S. C. R. SUPREME COURT REPORTS 35 assuming that the appropriate Government acts honestly J96J and bona fide. If the appropriate Government refuses to - make a reference for irrelevant considerations, or on ex- 80 "'i~! i't:: of traneous grounds, or acts mala fide, that, of course, would •· be another matter; in such a case a party would be entitled T'Boml::,at• of to move the High Court for a writ of mandamus. The result is, the appeal fails and is dismissed. would be no order as to costs. There Appeal dismissed. STATE OF BHOPAL AND ORS. v. CHAMPALAL AND ORS. (B. P. SINHA, C. J. , K. N. WANCHOO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ. ) Bhopal . Reclamation and Development of Land (Eradication of Kans) Act (Bhopal Xlll of 1954) ss. 4, 7-lf s. 4 is violative of Art. 19(1)(/) of the Constitution-Possession by Reclamation officer-If taking p-OSse,.. sion within Art. 31(2) of the Constitution-Demand for contribution-- Legality. Ga/tndragadlr:ar /.
The respondents are owners of agricultural land in Bhopal. Their 1 ands were taken possession of by the appellant under a notification under s. 4 of the Bhopal Reclamation and Development of Land (Eradi- cation of Kans J Act. The object of this Act was to eradicate by tleep tractorisation Kans weeds which are harmful to the productivity of land. The Act provides for the taking possession of the land infested with kans, after issuing notifications ·under s. 4 of the Act, and for the deep plough- ing of the land by tractors. The expenses incurred by the Government were to be apportioned among the owners in the area whose lands had been occupied an(i ploughed. Demands were made on the respondents whose lands were occupied and tractorised to pay the costs so appor- tioned. Thereupon they filed writ petitions before the Judicial Commis- sioner challenging the legality of the Act "' well as the legality of the levy, even assuming that the Act was valid.
The Judicial Commissioner allowed the petitions. Thereupon the State appealed to this Court with certificate ol' fitness under Art. 133(l)(c) of the Constitution. In the appeals before this Court the same contentions as those which were raised before the Judicial Commisisoner were canvassed. 196J Stot1 of Bhopal . ,. Champa Lal SUPREME COURT REPORTS Held. (i) The Act contains no provision for the person interested:: having an opportunity to esta&lish that the particular land in which he was interested was not kans infested and therefore did not stand in need of any eradication operation. Section 4( 1) read in conjunction with the power contained in s. 4( 4) coupled with the absence of any provision• for entertaining objections would, in the circumstances of there being admittedly patches of land in the same tehsil which ha'd been cleared at least in 1941 must be characterised as arbitrary and imposing an, unreasonable restriction on the right to hold and enjoy property within· Art.
19(1 )(f) of the Constitution. (ii) The possession of the Reclamation Officer is exclusive and amounts. to taking possession within Art. 31(2). The shortness of the duration during which the owner is deprived of his possession has no relevancy to- ), the question whether ther~ has been a taking of possession of lan'd by the State. If the duration is short the compensation payable might be small. The exemption from payment of land revenue (luring the period of occupation by the State as provided in the proviso to s. 6(2) of the Act cannot in any sense be treated as compensation for the deprivation of possession, it only aUeviates his loss. Section 4( 1) read v. ·ith s. 6(1)(h) is unconstitutional as violative of Art. 31(2).
(iii) Section 7 of the Act is mandatory and that as admittedly there was nO compliance \vith it no lawful demand could be made for the contribution payable by any landhofder by the Central Government or ~ by the State Government at the instance of the Central Uovernn1ent without re1. :oursc to the machinery provided by s. 7. The notice-; of den1and were therefore illegal. (iv) The extension o( the l\1adhya PraJ. c~h Act to the Bhopal area. would be of no avrtil to the State because the Act was brought into- force prospectively and not retrospe Commissioner's court, Bhopal (Now Madhya Pradesh High Court) dated April 9, 30, 1956, in Misc. Civil Case Nos. 18 of 1954 and 21 and 35 of 1955, dated April 9. 27. 1956 in Misc. Civil Case No. 25 of 1955 and dated April 9, 17. 1956 in Misc. Civil Case No. 49 of 1955. 8. Sen, and /. N. Shroff, for the appellants. M. C. Setalvad and M. S. Gupta, for respondents (in C. A. No. 380 / 59). K. K. Jain. for respondents in (C. A. Nos. 381-383/59.
\ December 19, 1963. The Judgment of the Court was delivered by 6 S. C. R. SUPREME COURT REPORTS 37 AYYANGAR J. -These five appeals which have been I96J consolidated for hearing, raise for consideration principal· Stat• ;;Bhopal Jy two points: .... C hllmpa Lill ( 1) the constitutional validity of the Bhopal Recla- A - 1 • • yyanzar • mat1on and Development of Lands (Eradica- tion of Kans) Act, 1954 (Act XTII of 1954) which will be hereafter referred to as the Act, and (2) whether the provisions of the Act, even if con- stitutionally valid, were complied with in the case before us. 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 tractorisation 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 Bhopal 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 chal- lenging the constitutionality of the Act as well as the lega- lity 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 1963 State of Bhopal •• Champa Lid A11an1• J. SUPREME COURT REPORTS fitness under Art. 133(1) (c) and have preferred the ap- peals which are now before us. We shall narrate a few facts which serve as a back- ground to the enactment of the legislation now impugned, and which would also throw some light on some of the points urged by the respondents. It was recognised as early as the first decade of this century that without the eradication of Kans there could be no improvement in the return from the land in the Bhopal and surr S. C. l<.
SUPREME COURT REPORT~ 51 with s. 6(l)(b) is unconstitutional as violative or Art. 31 (2). State of Bhopal The learned Judicial Commissioner bas also struck down Ch vi:,;, 1 s. 6(2) as unconstitutional and Mr. Sen did not question the amp_a _ correctness of this conclusion. There are other minor points Ayyangar J. about s. 6 which also have been held to render that section unconstitutional but to these it is not necessary to refer in • the v. iew that we have expressed about the provisions we have discussed. If the appellant State is unable to sustain the validity of SS· 4 and 6, which are the key provisions of the Act, Mr. Sen conceded that it would not be necessary to consider the validity of the other provision and we accordingly refrain from doing so. This takes us to the second principal ground on which the respondents have succeeded, viz. , that even if the Act be valid, the provisions of s.
7 were not complied with and as a result the demand made on the respondents for payment of an instalment of the tractorisation charges was unautho- rised and illegal. It was Mr. Sen's contention that the learn- ed Judicial Commissioner was in error in upholding this con- tention. The point arises this way. Section 5 makes provi- sion for the constitution of a Reclamation Board. The Board consisted at the relevant date of the Development Commis- sioner as the Chairman, six non-official members who were members of the Legislative Assembly of the State besides five other officials with the Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts this Board with the duty first of ascertaining the total expenditure in- curred, or to be incurred, and then to equitably apportion it " among those land-owners on whose lands eradication opera- tions have been or would be conducted.
Now, in the present case the facts were that the Central Government incurred the expenditure in the first instance by utilising the Central Tractor Organisation-a body set up by the Central Gov- ernment and then intimated to the State Government both the total amount which they had expended and which was repayable to them by the State, as well as the manner in which the amount thus recoverable from the State was to be allocated among the several land-holders. It is common ~ ground that the Reclamation Board newr met and conse- quently neither computed the total expenditure incurred or 1963 State of Bhopal v. Champa Lal Ayyangar I. 52 SUPREME COURT REPORTS [1964] to be incurred for the eradication operations, . '! or did it make the allocation among the holders of the lands en which eradication operations were conducted. After refer- ~ ring to these features the respondents pointed olrt in their petitions that, without the requirements of s.
7 being satis- fied, they were informed of the contents of a letter dated October 29, 1954 from an Under Secretary ·to the Gov- errunent of India to the Secretary to the Government of Bhopal-Development Department, in which the amount t0 be recovered from the land-owners for the deep ploughing of their lands was mentioned, "". hich amount, the revenue officials of the State were directed to recover. It is now admitted that this is the basis on which the impugned demands were made on the respondents. The learned Judicial Commissioner held that the terms of s. 7 were mandatory and that unless the mind of the Reclamation Board was brought to bear on the question, and the Board computed the total expenditure as well a~ the proper alloca- tion of this sum among the several land-owners no lawful demand could be made under s. 8, nor could the same be recovered from the respondents.
We find ourselves in entire agreement with the learned Judicial Commissioner in hold- ing ( 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. It is only necessary to add that the validity of these noti- ces of demand v. rould arise only in the event of the crucial provisions of the Act-s. 4 and s. 6-being valid and in view of our conclusion as regards the constitutional validity of those provisions, even in the event of the terms of s. 7 being complied with there could be no lawful demand made on the respondents. There remain two minor points which were urged by Mr. Sen but neither of these need detain us long.
The first • • of these was the effect on the present demand of the Madhya " Pradesh Reclamation of Lands (Extension to Bhopal) Act, . I 6 -3. C R. SUPREME COURT REPORTS 53 . 19... i7. By t is enactment the Madhya Pradesh Act . which_- 1963 is somewhat analogous to but not identical with the Act now State of [Jhopal under consideration was extended to the Bhopal area. The v. argument of Mr. Sen was that by virtue of this extension of Champa Lat the Madhya Pradesh Act, even if the Bhopal Act were in· Ayyangar 1. valid, the demand made could be justified as made under the Madhya Pradesh Act. But the extension of the Act, in the present case, is. of no avail to the appellant because that Act was brought. into force only prospectively and not retro- spectively. If, therefore, the demand when made was illegal or invalid it cannot be' sustained on the basis of the Madhya Pradesh Act.
In the circumstances, it is unnecessary for us to consider the provisions of the Madhya Pradesh Act to find out how far, if retrospective, they would affect the vali- dity of the demand. · The last of the points urged was that even if the Act was invalid and the demand could not be justified as a legal ·· demand having. regard to the terins of s. 7, still as eradica- tion operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived b~nefit therefrom, lands which the respondents still retain- ed, the provisions of s. 70 of the Indian Contract Act were '"ttracted and that on the basis 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 circumstances that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments bee fore him, nor in the grounds of appeal or even in the state- ment of the case filed in this Court, we have not thought it proper to permit learned counsel to urge the ground at this stage. The facts of the other appeals being substantially simi- lar, and the points arising in them being identical, they do not require to be dealt with separately. What we have stated regarding Civil Appeal 379 of 1959 would equally . apply to them. ··· The appeals fail and are dismissed with costs--0ne hearc ing fee. Appeals dismissed.
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