NANDESWAR CHAKRAVARTY AND ORS. Vs. STATE OF ASSAM AND ORS.
LAWS(GAU)-1958-5-2
HIGH COURT OF GAUHATI
Decided on May 16,1958

Nandeswar Chakravarty And Ors. Appellant
VERSUS
STATE OF ASSAM And ORS. Respondents


Referred Judgements :-

LIVERSIDGE V. SIR JOHN ANDERSON [REFERRED TO]
NAKKUDA ALI V. M.F. DE S. JAYARATNE [REFERRED TO]
WIJEYESEKERA V. FESTING [REFERRED TO]
PROVINCE OF BOMBAY VS. KHUSHALDAS S ADVANI SINCE DECEASED AND AFTER HIM HIS LEGAL REPRESENTATIVE A GOVINDRAM KHUSHALDAS AND B RAMCHAND KHUSHALDAS [REFERRED TO]
STATE OF WEST BENGAL VS. BELLA BANERJEE [REFERRED TO]
STATE OF RAJASTHAN VS. NATH MAL [REFERRED TO]
STATE OF BOMBAY VS. R S NANJI [REFERRED TO]
KARANPURA DEVELOPMENT COMPANY LIMITED VS. KAMAKSHYA NARAIN SINGH [REFERRED TO]
A C MOHAMED VS. SAILENDRA NATH MITRA [REFERRED TO]
WEST BENGAL SETTLEMENT KANUNGOE COOPERATIVE CREDIT SOCIETY LTD VS. BELLA BANERJEE [REFERRED TO]
SATYA NARAYAN NATHANI VS. STATE OF WEST BENGAL [REFERRED TO]
HUBLI ELECTRICITY CO. LTD. V. PROVINCE OF BOMBAY [REFERRED TO]
THE ASSAM COMPANY LTD. VS. THE STATE OF ASSAM AND ORS. [REFERRED TO]


JUDGEMENT

G. Mehrotra, J. - (1.)THESE are eleven petitions under Article 226 of the Constitution of India on which Rules were issued by this Court. By means of these petitions, the requisition Orders in respect of different lands which are the subject matter of separate petitions passed by the Deputy Commissioners under Section 3(1) of the Assam Land (Requisition and Acquisition) Act, 1948, have been challenged.
(2.)THE constitutionality of the Assam Land (Requisition and Acquisition) Act of 1948 which will hereinafter be called the Act, has been challenged. The common point raised in all the petitions is regarding the constitutionality of the Act. The orders of requisition have also been impugned on various other grounds; but these points will be considered when we deal with individual petitions. The Act received the assent of the Governor on the 14th November, 1948. It is a pre -Constitution Act. The provisions of Section 3 of the Act were amended from time to time and the present Section 3 of the Act reads as follows:
If in the opinion of the State Government or any person authorised in this behalf by the State 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, transport, communication, irrigation or drainage or for providing land individually or in groups to landless, flood -affected or displaced persons, or to a society registered under the Indian Co -operative Societies Act, 1912 (with such statutory re -enactment or modification thereof as shall from time to time be made) or a company incorporated under the Indian Companies Act, 1913, formed for the benefit and rehabilitation of landless, flood -affected or displaced persons, the Stale Government or the person so authorised, as the case may be, may, by order in writing requisition any land and may make such further orders as appeal to it or to him to be necessary or expedient in connection with the requisitioning.

The validity of the Act was challenged earlier in this Court and a Division Bench of this Court in the case of Assam Co. Ltd. v. State of Assam : AIR 1953 Gau 177 (A), held that the Act was intra vires of the Constitution; it was not hit by the provisions of Article 31(2) of the Constitution and consequently was not void under Article 13 of the Constitution. There is therefore already an authoritative decision of this Court that the Act is constitutional.

It was however contended by the counsel for the Petitioners that the decision of the Division Bench of this Court, referred to above, requires reconsideration inasmuch as the Bench had expressly dissented from the view taken by the Calcutta High Court in the case of West Bengal Settlement Kanungoe Co -operative Credit Society Ltd. v. Mrs. Bella Banerjee : AIR 1951 Cal 111 (B), which has since been, affirmed by the Supreme Court reported in State of West Bengal v. Mrs. Bella Banerjee : AIR 1954 SC 170 (C). The cases came up for hearing on earlier occasions also; but were adjourned on the ground that the earlier decision of this Court is the subject matter of appeal before the Supreme Court and the appeal was likely to be decided by the Supreme Court early.

When the case was listed this lime, a similar request was made; but we thought it not advisable to grant any further adjournment. If the Supreme Court holds the Act to be ultra vires, we have no reason to doubt that the authorities concerned will take necessary action in the matter to recall the requisition orders. It is therefore not necessary for us to adjourn this case till the decision of the Supreme Court in the appeal. It is not necessary to examine elaborately the points urged regarding the constitutionality of the Act, inasmuch as most of the points have already been discussed in the earlier judgment of this Court at considerable length.

Shortly we have to examine only how far the decision of the Supreme Court in the case of : AIR 1954 SC 170 (C), applies to the facts of the present case and affects the earlier decision of this Court.

Mainly the argument advanced by the counsel for the Petitioners is that the Act neither provides for payment of compensation nor specifies the principles on which and the manner in which the compensation is to be determined and given. According to the contention of the Petitioners, Article 31(2) makes it obligatory to provide for payment of compensation and further either to fix the amount of the compensation or to specify the principles on which and the manner in which the compensation is to be determined and given in the law itself which authorises requisition of the property. According to the contention of the Petitioners, on the examination of the provisions of the Act, it will be found that the basis on which the payment of compensation is to be made under the Act is wholly arbitrary and consequently it results in the payment of no compensation and further the Act does not specify the principles on which and the manner in which the compensation is to be determined. It was contended that the very word - 'compensation' connotes an idea of quid pro quo.

If the amount of compensation awarded on the basis of the provisions of the Act is illusory or has no relation to the market value of the property on the date of requisition, it is no compensation in the eye of law, and as such the law provides for payment of no compensation. Before we deal with the ease of the Supreme Court, on which reliance has been placed, it is necessary to refer to certain provisions of the Act.

Section 3(1) which we have already quoted gives under certain circumstances power to the State Government or any person authorised by the Govt. to requisition land. Subsequent clauses in express terms then provide that any land used for religious worship or for charitable purposes or any building or part thereof wherein the owner has actually resided for a continuous period of one year, immediately preceding the date of the order, shall not be requisitioned.

Thereafter the manner in which the notice is to be served and the right of appeal to the Govt. are provided for when the order has been passed by any officer of the Govt. Section 4 then provides for the acquisition of the land which had already been requisitioned. Section 5 deals with the notice to the persons interested of the order of acquisition under Section 4. Section 7 deals with the compensation and is as follows:

Subject to the provisions of Sub -section (1 -A) wherever any land is acquired under Section 4 there shall be paid compensation the amount of which shall be determined by the Collector in the manner and in accordance with the principles set oat in Sub -section (1) of Section 23 of the Land Acquisition Act, 1894: Provided that the market value referred to in clause first of Sub -section (1) of Section 23 of the said Act shall, in respect of any land required 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.

(1 -A) 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 purposes incidental thereto then the compensation payable for acquisition of such land together with trees (if any) standing on it shall be an amount equal to ten times of the annual land revenue which, on the date of publication of the notice referred to in Sub -section (1) of Section 4, is or would have been payable if such land is or had been assessable to revenue at full rates:

Provided that where any amount was originally paid to Government by the grantee as price or premium for the land, an additional amount equal to the amount originally paid by the grantee shall also be payable. - Explanation, - 'special cultivation' means cultivation which involves, either owing to the nature of the crop or owing to the process of cultivation, a much larger expenditure of capital per acre than is incurred by most of the cultivators in the State, and includes cultivation of tea.

(2) When the compensation has been determined under Sub -section (1) and Sub -section (1 -A) the Collector shall make an award in accordance with the principles set out in Section 11 of the Land Acquisition Act, 1894, and no amount referred to in Sub -section (2) of Section 23 of that Act, shall be included in the award.

(3) Where any land is requisitioned under Section 3, there shall be paid (subject to the provisions of Sub -section (4) below) to every person interested such compensation as may be agreed upon in writing between such person and the Collector (or in the absence of agreement reasonable compensation) in respect of - (a) the requisition of such land; and (b) any damage done during the period of requisition to such land other than what may have been sustained by natural causes.

(4) Notwithstanding the provisions of Sub -section (2) of Section 8, in the case of land included in any grant or settlement made for special cultivation or other purposes which is lying fallow or uncultivated and which is requisitioned for the purpose of cultivation, the annual compensation payable under Clause (a) of Sub -section (3) shall in no case be more than double the annual land revenue which, on the date of order of requisition, is or would have been payable if such land is or had been assessable to revenue at full rates.

From the perusal of Section 7 of the Act it will be clear that the relevant sub -sections which provide for compensation in the case of requisition are Sections 7(3) and (4). Section 8 then provides for reference to the Courts in the event of disagreement between the Government and the person whose land has been requisitioned in regard to the amount of compensation. The relevant part of Section 8 is 8(b) which reads as follows:

Where there is any disagreement with regard to the compensation payable under Sub -section (3) of Section 7 on the application of the person entitled to compensation requiring the matter to be referred to Court, refer the matter to the decisions of the Court.

Sub -section (2) of Section 8 then provides as follows:

The provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of any reference made to the Court under Sub -section (1).

(3.)THE other sections of the Act are not relevant for the purposes of the present case. Section 7(3) clearly therefore provides for the payment of compensation. It further provides the method for the determination of the amount and embodies the principles on which the compensation is to be paid. In the first instance, wherever any land of any person is requisitioned, compensation agreed upon in writing between such a person and the Collector is to be paid and in the absence of any such agreement, reasonable compensation is to be paid both in respect of the requisition and any damage done during the period of requisition to such land other than those which would have been sustained by natural causes.
The amount of compensation to be awarded is controlled by Sub -section (4) which provides that notwithstanding the provisions of Sub -section (2) of Section 8 - namely the application of the Land Acquisition Act to the proceedings before the Court, where the reference has been made, in all the cases of land included in any grant or settlement made for special cultivation or other purposes which is lying fallow or uncultivated and which is requisitioned for the purpose of cultivation the annual compensation payable under Clause (a) of Sub -section (3) shall in no case be more than double the annual land revenue which on the date of order of requisition is or would have been payable if such land is or had been assessable to revenue at full rates.

The amount of compensation is not to exceed double the annual land revenue in cases of lands mentioned therein. In the case of disagreement, the matter may be referred at the instance of any interested person to the Court and the provisions of the Land Acquisition Act will be attracted to those proceedings. On a close analysis of the Act, it is clear that the reasonable compensation which has to be awarded by the Collector, in the absence of any agreement, is subject to the scrutiny by a Court on reference, and such a Court is to be guided by the provisions of the Land Acquisition Act.

Obviously the reasonable compensation to be paid by the Collector is thus to be guided by the similar principles as laid down in the Land Acquisition Act. Moreover, the use of the word 'reasonable compensation' excludes the idea of arbitrariness. The provisions also clearly indicate that the compensation is to be paid both for requisition and the damages.

It also provides for the method by which the amount is to be determined, After having carefully considered the provisions of the Act, we do not think that there is any substance in the contention that the Act does not specify the principles on which the compensation is to be paid or the manner in which it is to be determined.



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