Patna High Court
Rameshwar Kumar And Ors. vs R.P. Mishra And Ors. on 27 February, 1959
Equivalent citations: AIR1959PAT488, AIR 1959 PATNA 488, ILR 38 PAT 802
Author: V. Ramaswami
Bench: V. Ramaswami
ORDER
1. In all these four cases, which have been heard together, a common question of law arises for determination, namely, whether Section 4 of Bihar Act XXI of 1956, which amends Section 35 of Act I of 1894, is constitutionally valid.
On the 22nd September, 1956, the Land Acquisition (Bihar Amendment) Act, 1956, received the assent of the Governor, and the assent was published in the Bihar Gazette, Extraordinary, of the 6th October, 1956. Section 4 of the statute is in the following terms : --
"4. Amendment of Section 35 of Act I o£ 1894:-- To Sub-section (1) of Section 35 of the said Act, the following proviso shall be added, namely :--
"Provided that, whenever it appears to the Collector that, on account of apprehended damage to life or property by erosion, the temporary occupation and use of such land are urgently needed for the purpose of rehabilitating displaced person or needed by any Railway Administration for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing connection with or access to any such station, the Collector may, without any direction of the appropriate Government, procure the occupation and use of the same for such term as he shall think fit, not exceeding three years from the commencement of such occupation."
Previous to the Bihar amendment, Section 35 of the Land Acquisition Act (Act I of 1894) stood as follows : --
"35. Temporary occupation of waste or arable land. Procedure when difference as to compensation exists.
(1) Subject to the provisions of Part VII "of this Act, whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such term, as it shall think fit, not exceeding three years from the commencement of such occupation.
(2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as aforesaid, and for the materials (if any) to be taken therefrom, pay to them such compensation either in a gross sum of money, or by monthly or other periodical payments as shall be agreed upon in writing between him and such person respectively.
(3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court."
2. The argument addressed on behalf of the petitioners in all these applications is that the assent of the President is constitutionally necessary if the Bihar amendment was to have legal effect and so the proceedings started against the petitioners with regard to temporary occupation of the land by the Land Acquisition Officer of Monghyr in pursuance of the order of the Collector are illegal and ultra vires.
In our opinion, the argument addressed on behalf of the petitioners is well founded and must prevail. The Bihar Amendment Act was promulgated before the Constitution (Seventh Amendment) Act came into effect. The Bihar Legislature enacted the Amending Act in exercise of the legislative power conferred by item No. 36 of the State List as the Constitution stood before the Seventh Amendment. But the amending legislation required the assent of the President under Article 31 (3) of the Constitution, read with Article 31 (2) of the Constitution. Article 31 (2) states as follows : --
"31. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned 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; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate." Article 31 (3) provides as follows : --
"31. (3) NO such law as is referred to in Clause (2) made by the Legislature of a State shall have effect unless such law, having, been reserved for the consideration of the President, has received his assent."
It is obvious that the Bihar legislation is law of the description contemplated by Article 31 (2) and so the Bihar Amendment cannot have any legal effect unless it has been reserved for the consideration of the President and has received his assent within the meaning of Article 31 (3) of the Constitution. It is admitted by the learned Government Pleader on behalf of the respondents in this case that the Bihar Act was not reserved for the consideration of the President and has not received his assent. The officially published version of the Act shown to us also does not indicate that the Act was reserved for the consideration of the President or that it has received his assent. For these reasons, therefore, we hold that the provisions of Bihar Act XXI of 1956, amending Section 35 of Act I of 1894, have no legal effect.
It follows, therefore, that the proceedings started by the Land Acquisition Officer of Monghyr against these petitioners for temporary acquisition or land under the provisions of the newly added proviso to Section 35(1) of Act I of 1894 are illegal and ultra vires and must be quashed by a writ in the nature of certiorari' under Article 226 of the Constitution.
3. We accordingly allow all these applications and order that a writ in the nature of certiorari under Article 226 of the Constitution should be issued for quashing the proceedings taken against the petitioners in all these four cases, namely, Case Nos. 52T of 1956-57, 27T of 1956-57 and 47 of 1956-57, of the Court of the Land Acquisition Officer of Monghyr. We accordingly allow these applications. There will be no order as to costs.