BACHAN SINGH & ORS. v.

STATE OF PUNJAB & ORS.

February 18, 1971

[S. M. SIKRI, CJ., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJl

Punjab Deve/opmen~ of Damaged Areas Act (10 of 1951 )-If viola- Jive of Arts. 14, 19(1)(/) and (g) and 31(2) of the Constitution.

I.n order to deal with extensive damage to property and to clear the debris and refuse caused by communal riots in 1947 in Punjab, statutes were enacted, giving suitable powers the last of which is the Punjab Development of Damaged Areas Act, 1951.

Under s. 2(d) of the Act the State Government declared by a Notification that the entire area within the walled city of Amritsar to be damaged area. The Improvement Trust formulated certain schemes wh oh were sanctioned by the State Government.

Thereafter, notice was issued to the first petitioner to vacate the shop in his possession and to the second and third petitioners to appear before the Land Acquisition Collector and explain the interest which they had in the premi'es in their occupation sought to be acquired.

In a petition under Art. 32, on the questions whether (I) the Act is violative of Art. 14, because (a) the power to declare an area as damaged is arbitrary, and (b) the property can be acquired at the di!c'retion of the TrusJ either under the Punjab Town Improvement Act, 1922, or under the Act, compensation payable under the formeT Act being more advantageous;

(2) the ,-estrictions imposed by the Act .-1.n~ 1111reasonable , al'.d violative of Art. 19(fl(fJ and lg): cir.d I~) t'.. ..o•lton and compensation provisions of the Act violate Art. 31\l).

HELD: (!) There is no violation of Art. 14.

(a) The purpose of the Act is for framing and executing schemes of

improvemen~ in urban areas where damage has been caused to buildings by wholesale and serious rioting an.d hence, the power conferred on the F State Government to declare an area damaged area is not arbitlrary, un .. guided or uncanalised. If the whole of the walled city of Amritsar is a damaged area and part thereof is equally a damaged area. Therefore, it is not difficult to determine what is damaged area and the Notification in the present case is not vague. [773 A-DJ

(b) No option is given to acquire the area either under the 1951 Act or Punjab Town Improvement Act accordin~ to the discretion f t.he m- G pro1ement Trust. The 1951-Act only provides that the Trost in frammg a scheme may provide for all or any of the matters mentioned in s. 28 of the Punjab 1 own Improvement Act, and that any sche.me already framed under the latter Act is deemed to have been framed under 1951-Act.

[771 A-BJ

(2) The provisions of the Act are reasonable and are des.igned to serve the interest of the general public by executmg schemes m . a planned H m1 11ner for the improvement of the damaged areas of the city and .the restrictions imposed are protected by Art. 19(5) and (6) of the Const1tu- 1ion. (769 G-H)

BACHAN SINGH v, PUNJAB

76:J

(a) Pason; who are affected by a scheme are given an opportunity to file their objections which have to be given due consideration by I.be' JnoFrovement Trust before finalising the scheme, and by State Government

before sanctioning the scheme.. They have also the right to take .part in. the proceeJing; before I.be Collector in the inquiry into claims for com pensation. They are given notice of the award and are given a right to have their objections to the award fixing the compenSation or the area demarcated and other matters specified in s. 20 referred to a nibunal.

The award, or any order passed by the Tribunal, is deemed to be a judg

mem and decree under the Civil Procedure Code, and affected persons have a right of appeal to the High Court and to this Cpurt . . [770 BF]

(b) The fact that there are some newly built buildings which are not damaged would not make the provisions of the Act unreasonnble nor justify an impediment beinjl placed to a scheme which is designed to achieve a social purpose and 1s for I.be public goOd [770 G-H]

 ( c) The persons in occupation of shops have been assured in writing by the Improvement Trust of alternative 11ccommodation and allotment of pucca shops as soon as possible. [771 HJ

( 3) The compensation payable is neither inadequate nor illusory but on the other hand it is not less than the market value and may even be more. There is thus no violation of Art. 31(2) of the Constitution.

[770 G 772 BJ

(a) The compensation payable to persons interested under the Act is mdre in ihl! nature of a profit sharing scheme in that the minimum that they would be entitled for payment is the market value of the property which has come under the scheme and may even be more depending upon the income of the scheme and the exr, enditure incurred therefor. The com•

pensation js determined on princip es similar to those under the Land Acquisition Act or the Punjab Town Improvement Act. [770 B-C. HJ

(b) lt cannot be contended that compensation is not payable for the buildings but only for the land, because. the definition of land under the Act is similar to that in s. 3(a) of the Land Acquisition Act and is comprehensive enough to include buildings also. [771 DJ

(c) The finalisation of the scheme will take time but under s. 12(2\ the submission of the scheme by the Trust is not to be later than threo years. Therefore, it cannot be urged that the final compensation is not immedialtly payable and that it may take several yeors without any pay ment of inte1est during that time.

In any case, the scheme is for the benefit of all those who havt properties ia the areas which are covered by

the scheme and is on a profit sharin~ basis. There is I.bus no hardship or disadvantage. [771 E-OJ

ORIGINAL JuR1smcr10N : Writ Petition No. 1 of 1970.

Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

J. P. Goyal and Sobhag Mal Jain, for the petitiQliers.

H Bishan Nurain and R. N. SdChthey, for respondent No. 1.

Bishan Narain, B. Datta, J. B. Dadilchanji, 0. C. Mathur and Ravinder Narain, for respondent Nos. 2 and 3.

16'4 :-SUl'REME COURT REPORTS

[1971] 3 S.C.R.

The Judgment of the Court was delivered by

P. Jaganmohao Reddy, J.

The three Petitioners who are residents of Amritsar have filed this Petition under Art. 32 of the 'Constitution, challenging the Punjab Development ot Damaged Areas Act IO oi 1951 (hereinafter called 'the Act') as being violative of Art 14, 19( 1) (f) & (g) and 31 (2) of the Constitution of India.

The first Petitioner carries on a Bakery business in a shop in B.azar Ja!lianwala near Chowk Phowara of which he is a tenant.

The second Petitioner is the owner of a building consisting of a number of shops situated in Bazar Bikanarian while the third Petitioner is a tenant in occupation of a residential house situated in Bazar Sodhian.

On 26th June 1962 the State Govt. declared by a Notification under Sec. 2(d) of the Act the entire area within the walled city of Amritsar to be a damaged area.

In pursuance of the said Notification a number oi schemes were formulated by the Improvement Trust of Amrits< r.

Two of such Schemes with which the Petitioners are concerned related to ( 1 ) Chowk Phowara .cum Jallianwala Bagh and (2) Ghantaghar.

The former Scheme wus sanctioned by the State Govt., by a Notification dated the 17th July 1968, while the Ghantaghar Scheme was sanctioned by Notification of the iOth October 1969.

Pursuant to these Notifications a Nottce was issued on 26th November 1969 to the first Petitioner whose shop is covered by the Chowk Phowara cum Jallianwala Bagh Scheme to vacate the premises in his possession.

A notice was also given to PetitiQllers 2 & 3 in respect of the buildings owned or occupied by them in the Ghantaghar area Scheme, asking them to appear before the Land Acquisition Collector-the 3rd Respondent and explain the interest which they have in the respective premises sought to be acquired.

It is contended by the Petitioners :-(1) (a) that Sec. 2(d) <Jlfends Art. 14 of the Constitution inasmuch as the damaged area as defined under that Section furnishes no guidelines, is arbitrary, unguided, un-canalised and discriminatory inasmuch as it enables the State.

G<Jvt. to pick and choose any area and declare it to be damaged area even though it may not at all be damaged while at the same time leaving out other areas similarly situated which are either not damaged or really damaged; that in any case the Notification under Sec. 2(d) is vague and therefore bad, (b) thar the provisions regarding compensation are also discriminatory because property can be acquired at the dis6retion of the Improvement Trust either under the Punjab Town Improvement Act 1922 or under the Act even though the compensation payable under the provision of the former Act are advantageous as compared to those payable under the Act; (2) that the compensation provisions in the Act violate Art. 31 (2) as it stood at the time when

G , ,.

_ , c

•, D

BACHAN SINGH v. PUNJAB (Jaganmohan Reddy, J.) 765

the Act was passed in 1951; (3) that the Acquisitio~ under the Act cannot be said to be for a public purpose as not a single pie comes from the Govt. or is contributed by the local authority; and ( 4) that the impugned Notification sanctioning the two schemes is also void because once the Govt. had exercised the power by sanctioning Dharam Singh Market Scheme, the power of sanction under Section 5 is exhausted.

In order to appreciate the several contentions it is necessary to examine the provisions of the Act but before we do so it may be useful also to briefly set out the legislative history of the enactment and the purpose for which it was enacted.

Prior to the partition of India there were serious communal rioting in March 1947 in some parts of Punjab, particCilarly in Amritsar. 'J\hese riots as well as those which subsequently took place on the eve of partition caused extensive damage to properti and left a Jot of debris and refuse which had to be cleared.

The Governor of Punjab who had by a proclamation under Sec. 93 of the Govt. of India Act 1935 assuming to himself ail powers vested by and under the said Act passed the Punjab Damaged Areas Act 11 of 1947 on 9th May 194 7.

The Act so passed would only have force for two years from the date on which t!"e proclamation ceases to have effect unless sooner repealed or re-enacted by an Act of the appropriate legislature. The rule. of the Governor came to an end on 15th August 1947 and consequently thf 1947 Act would cease to have force on 15th August 1949.

It appears from the statement of objects and reasons of the 194 7 Act that Government finding that it had not adequate power to deal with dangerous or damaged buildings summarily, or to deal satisfactorily with debris, the materials of damaged or fallen buildi, ngs or to control salvage of property and its disposal or to indemnify the Crown or the Local authorities or their employees for the action already taken in respect of the aforesaid matters, wanted to arm itself by emergency changes in the Laws regulating the administration of Urban areas and to provide in n orderly way for the custody and disposal of debris and salved property. The substantive portions of the Act were meant to come into force in any area to which their application may be considered desirable by the Provincial Government, on such date as may be notified.

Under Sec. 2(c) the Damaged area was defined in much tile Saine way as is defined in Sec. 2(b) of the present Act.

It conferred power on the Provincial Government to declare by Notification any area or any portion thereof to be a damaged area.

Under this provision the whole of the walled city of Amritsar was declared to be damaged area.

As this Act would have lapsed by the 15th August 1949, the East Punjab Damaged Areas Act 10 of 1949 was enacted which pnbodied practically the same provisions as

were contained in the 1947 Act.

Under this Act no fresh Notification in respect of the area Notified in the 194 7 Act was issued and though Sections 1 to 3 of the 1949 Act came into force immediately after its publication the other provisions of that Act were to come into force in any urban area as the State Govt. by Notification may appoint. These provisions however did not meet the need for planned development of the damaged areas 3jlld consequently the Damaged Area Ordinance 16 of 1950 was promulgated by the Governor of Punjab on the ls! December 1950.

The Ordinance was replaced by the present Act.

Though under sub. sec. ( 2) of Section 1 the Act extends to the whole pf Punjab sub-sec. ( 3) was to come into force at once within the local area of Amritsar Improvement Trust and any other such areas as the Govt. may by Notification specify.

Sec. 2 ( d) defines damaged area to be an area which the State Govt. by Notification may declare to be a damaged area and includes the area already ; notified by the East Punjab Damaged Area Act 1949.

Section 2(e) defined 'The Improvement Trust' or 'Trusts' as an Improvement Trust constituted under the Punjab To-Mn Improvement Act 1922 while Land under Sec. 2(f) includes benefits to arise out of land or things attached to the earth or permanently fastened to anything attached to the earth.

Sec. 3 empowers the Trust to frame a Scheme or Schemes for the development of the damaged area providing for all or any oi the matters mentioned under Sec. 28 of the Punjab Town Improvement Act 1922 and any Scheme already framed or. sanctioned in respect of a damaged area under the Provisions of that Act which shall be deemed to have been framed or sanctioned under the Act. Sections. 4 & 5

ft.en provide for the publication of the Scheme giving certain specified details calling for objections to the Scheme within a period prescribed.

After considering the objections, if any, which may, be received by the Trust during the period prescribed the Trust may approve the scheme with or without modification and thereafter submit it . to the State Govt. with a statcmel)t oi ob_jections received by it.

The State Govt. may modify the scheme if necessary and notify it either in original or as modified.

The Scheme so published shall be deemed to ":le the sanctioned scheme; such publications being conclusive evidce of the Scheme having been duly framed and sanctioned.

Under Sec. 6 the Trust shali within 3 months from the date of the publication of the Scheme under Sub-Section 3 of Section 5 apply to the Collector for acquisition and if considered necessary for taking immediate possession of the whole or part of any damaged area comprised in the Scheme and on such application being made the Collector may forthwith deliver or caused to be delivered to it the possession of the damaged area. On such order being made by the Collector the damaged area vests in the Trust free from all incumbrances

t .

l.l

BACHAN SINGH v. PUNJAB (Jaganmohan Reddy, /.) 767

but subject to payment in due course of compensation by tht Trust in accordance with the provisions of the Act. The occupier of any building or any part of the building was to be given at least 2 weeks notice or such longer notice as it considered reasonably sufficient to enable him to remove his movable property from such building without unnecessary inconvenience to him.

Section 7 empowers the Collector, if he is himself a Ma6istrate and if 111ot to apply to a Magistrate to remove obstruction and to deliver possession of the land to the Improvement Trust.

Sec. 8 provides for marking and measuring.

Sec. 9 requires the Co!lector to cause notices giving particulars as required under sub-sec. (2) inviti'lg

claims to be made to him for compensation.

Sec. 11 requires the Collector to make en4uiry into the objections and claims mude pursuant to the notice issued under sub-sec. 2(b) of Sec. 9, a.'1d to determine :

(a) the true area of the land;

(b) the market value, at the time of publication of the

Scheme under Section 4 (1), of-

(i) the land,

(ii) all material standing on them, and

(iii) any sources of income derived from the land.

( c) The value of pJ.ots, the material thereon and other sources of income remaining outstanding as notified by the State Government under Section 12; and

( d) the extent of the interest of every person claimi111g compensation, and the market value of the interest of such persons at the time of publication of the scheme under Sectiob 4 ( 1).

UD; der ec. 12 the ':frust shall as s?on a~ possession of the land compnsed m the sanctmned scheme 1s delivered to it proceed to execute the scheme-but not later than 3 years of the sanction of the scheme subit for the scrutiny of the State Govt. an accurate statement which shall contain the following particulars :-

(a) the actual cost of the scheme;

(b)

(c)

(d)

the income derived from the scheme ' the particulars and the estimated value of the plots and any material thereon that remain to be sold; and

5-Ll JOOSupCI/71

he estimated value of the other sources of mcome from the scheme which remain outstanding.

Oil the scheme being submitted to the State Govt., it shall after necessary scrutiny notify the details of he aforesaid statement.

The manner in which compensation is to be computed and

the award to be passed by the Collector and the payment of compengation are p1ovided for in Sec. 13 aind 16. Section 14 provides for the Collector's award to be filed and Sec. 15 empowers B.

Trust either to notify its intention to make a reference to the Tribunal in the manner stated in Sec. 19 against the amount awarded by the Collector or place the amolli!lt awarded at his disposal.

Sections 13 and 16 which deal with the calculation of the total compensation and its payment are as follows :

Sec. 13 : (1) After the statement has been otified under the preceding section, the Collector shall make an award apportioning compensatioo in the manner herein after prescribed, among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether or not they have appeared before him.

( 2) Notwithstanding anyth\ng contained in any other law for the time being in force, the total compensation payable for any Jan4 acquired under this Act shall be the difference between- ( a) the income of the Scheme, which shall include the estimated value of the plots and the material thereon that remain to be sold and the other sources of income from the scheme which remain outstanding; and

( b) the cost of the scheme, as notified in the statement under See. 12.

( 3) subject to the provisions of the Administration of Evacuee Property Act 1950, or a1.ty other law on the subject for the time being in force, the compensatiOlll awarded in respect of the structures, if any, standing on the land comprised in the scheme shall be payabfe to the persons known or believed to be interested in those structures according to their respective iiil.terests as determined by the Collector under Sec. 11.

Explanation : In computing such compensation, the Collect<;>r shall assess the market value of the structures at. the time of delivery of possession of the land to the Trust and deduct from such value the cost of demolishing them aind removing the. material from the site.

BACHAN SINGH v. PUNJAB (laganmohan Reddy, !.) 7 69

( 4) The. total compensation, Jess any deductions that may be necessary on .account of the amunts, if any, payable under sub-sect10n (3), shall be paid to the various persons interested in proportion to the terests held by them as determined by the Collector under sec. ll(c).

Provided that the amount paid to any person shall not be less than the market value of his interest as determined by the Collector under Sec. 11 ( d) minus the cost of demolitioo and removal incurred by the Trust.

Sec. 16 : From the amount placed at his disposal under section 15 . the Collector shall, according to the award, tender payments to the persons interested and make payments to those who agree to receive the same, with or without protest.

Sections 19 to 21 provide that the Trust or persons interested who receive compensatiqn under protest, may require the Collector to make a reference to the Tribunal in respect of the measurement of the hnd, amount of compensation, the persons to whom it is payable, its apportionment among persons interested. A statement of the case is also required to be draWl!I up by the Collector on reference, and a notice to be given by the Tribunal to the persons interested. Under Sec. 23 the Tribunal has power to either maintain or modify the award passed by the Collector and order payment to the persons entitled to it, provided that it shall not questiOll the amounts notified under Sec. 12. The award passed by the "1"ribunal is deemed to be a decree and the statement of the grounds therefor a Judgment within the meaning of sub-section (2) a,:id

(9) of Section 2 of the Civil Procedure Code; and every award and order of the Tribunal is enforceable by the Court of the Senior Sub Judge within the local limits of its jurisdiction as if it were a decree made or passed by it. While Section 24 makes provision for the award of costs, Section 25 does not require the Trust to pay interest on any amount awarded as compensation and tendered in accordance with the order of the Collector.

The provisions of the Act it may be noticed clearly indicate that they are reasonable and are designed to serve the interest of the general public namely to execute schemes in a planned manner for the improvement of the damaged areas of the city of Amritsar.

They do not in any way violate the provisions of Art. 19(1 )(f) & ( g) . This Court has in no IJill.Certain terms laid down the test for ascertaining reasonableness of the restrictions on the rights guaranteed under Art. 19 to be determined by a reference to the nature of the right said to have been infringed, the purpose of the restrictions sought to be imposed, the urgency of the evil and the necessity

-- .

to rectify or remedy it-all of which has to be . balanced with the social welfare or social purpose sought to be achieved. The right of the individual has therefore to be sublimated to the larger interest of the general public.

Applying this test it will be seen that persons who are affected by the Scheme are given an opportunity to file their objections which have to be given due consideration by the Trust before finalising the scheme. Their objecti<¥1S are further considered by the Govt. before sanctioning the scheme.

They have also a right to take part in the proceedings before the Collector in the enquiry into claims, for compensation, and are gi\ren nNice of the awai; d made by the Collector.

The compqnsation payable to them is. more in the nature of a profit sharing scheme in that the minimum)hat they would be entitled for payment i~-the tflarket value of the property which has come under the scheme and may even be entitled to something more depending upon the income'of the scheme and the expenditure incurred therefor. The total amount of compensation for any land so acquired under Sec . . 13(2) is the difference between the income of the scheme which

is to include the estimated value of the buildings and the material thereon that remains to be sold, the profits on the plots sold and the other source of the income of the scheme as notified in the statement under Sec. 12, subject as we have pointed out earlier to the compensation in any case not being less thain the market value

of his interest as determined by the Collector under Sec. l1 ( d )

mus the cost of the demolition and removal incurred by the Trust.

The persons interested are further given a right to have their objections to the award fixing compensation, the area of the land demarcated and other matters as specified in Sec. 20 referred to the Tribunal.

The award or any order passed, by the Tribunal being deemed to be a Judgment and a decree under the Civil Procedure Code, the affected persons have therefore right of appeal provided under that Code, which will give the main opportunity .F to go up to the High Court and even to the Supreme Court.

The fundamental rights to acquire, hold or dispose property or to carry on any occupation, trade or business guaranteed under Art. 19( 1) (f) & (g) is subject to the restrictions contained in clauses ( 5) & ( 6) of the said Article.

The Act in our view complies substantially if not abundantly with the restrictions imposed on the exercise of the said fundamental rights.

It is then contended that some buildings in these areas are newly build or that some of them are not damaged and hence the restriction is unreasonable but in our view this alone does not in any way justify an impediment being placed for a scheme which

is designed to achieve a social purpose and is for the public good. H The compensation payable under the Act is 'also determined on ptjnciples similar to those under the Land Acquisition Act or the Punjab Town Improvement Act.

There is however no justification

BACHAN SJNOH v. PUNJAB (Jaganmohan Reddy, J.) 771

in the submission that option is given to acquire tlie area either under the Act or under the Punjab Town Improvement Act according to the discretion of the Trust which is without guide-Jiines and arbitrary.

This argument is devoid of force because what Section 3 empowers is that the Trust in framing a scheme may provide for all or any of the matters mentioned in Section 28 of the Punjab Town Improvement Act. It further declares that any scheme already framed under the Punjab Town Improvement Act is deemed to have been framed under the Act. This is far from saying that a discretion is given to the Trust to frame a cheme either under the provisions of the Act or under the provisions of the Punjab Town improvement Act or that the provisions of the latter Act are more advantageous in the matter of compensati0in or in respect of any other matter. The section merely incorporates by reference some of the provisions of the other Act and is also an enabling one. There is also no validity in the CQDtention that compensation is not payable for the buildings but only for the land because the definition of land under the Act is similar to that ooder Sec, 3 (a) of the Land Acquisition Act r.nd is comprehensive enough to include buildings also.

It is next urged that compensation so determined is not immediately payable because under the provisions of the Act the final compensation will only be deteed after the scheme is submitted and sanctioned by the Govt. which may take several years and also there is a prohibition aainst payment of interest on the amount of compensation ~1ke that provided under the provisions of the Land Acquisition Act. It is true that the finalisation of the scheme will take time but under the provisions of sub-sec ( 2) CJ( Sec. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons afl; ected. In any case as we have said where the scheme is for the .llefit of all those who have properties in the areas which are covered by the scheme and is on a profit sha ring basis, there is no hardship or disadvamtal!e--particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme.

Though the actual schemes are not befor\I us, it is stated in the counter of Respondent No. 2 the Chairman of the Amritsar Improvement Trust that the Petitioners have been assured in writing by the Trust that allotment of pacca shops as so.Jn as H the commercial building in Dharam Singh Market which is being constructed at an estimated cost of Rs. 26 lakhs is completed. lin fact Ahata Bishan Dass and the adjoining scheme areas are ready. In the meanwhile many of the persons who have applied

for alternate accommodation have for the time being been accommodated by the Trust in the stalls recently set up in Kesribagh in the immediate vicinity of the Trust office. Though the Petitioners 1 and 3 have not applied for alternative accommodation they have been assured that they will be treated alike with the said displaced occupiers of shops in case they apply for alternative accommodation.

In so far as the petitioner No, 2 is concerned it is alleged that he is not an occupier of the building, as such there is illO question of an alternative accommodation being given to him but this matter will have to be decided under the provisions of the Act. Be that as it may in fact the Chairman of the Amritsar Improvement Trust has appended to the counter a letter addressed to one Inder Singh Arora who has a shop in Bazar Jallianwala in Amritsar and who is also similarly situated like the petitioners. In that letter of 6-1-1970 he has stated as follows :-

"Reference your discussion with the undersigned.

It has been decided to offer you accommodation on the lines of commitments made by the Trust in High Court n letters Patent Appeal No. 187 of 1969 (Mulk Raj & Others Vs. Trust) i.e. as soon as m mercial buddings in Dharam Singh Market, Ahata Bishan Dass and the adjoining Scheme areas are ready, the Trust would give preference to the .oustees from the scheme area ( Chowk Phowara to J allianwala Bagh in Main Bazar and other Markets) who are 5 years old to occupy shops of their choice at the rent which is fixed by the Trust for the particular shop.

The rOi!lt fixed by the Improvement Trust may be the highest that can be fetched in the Market. At that rent the tenants may exercise their option to get tenancy . rights in preference to others and in case they refuse to take the shops on rent so fixed by the Trust, the same would be given to others"

 These assur3j!lces are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of, the Improvement Schemes. The petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but oo the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31{ 2) of the Constitution.

A •

BACHAN SINGH v. PUNJAB (laganmohan Reddy, J.) 773

The further contention that Sec. 2 ( d) is discriminatory or "9gue in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urba.n areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area.

There is nothing arbitrary nor is the power conferred on t)le State Govt., unguided or un-canalised nor for that matter can it be said that the Notification issued on the 26th Jooe 1962 is vague.

In so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under Sec. 5 of the Act wasxhausted because the Govt. had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has inot chosen to address any arguments or to substJntiate that contention.

As such we find it unnecessary to deal with it.

In our view none of the objections are sustainable either on the ground of discriminati<Ji!l under Art. 14 or on the scheme being unreasonable or not in the interest of general public violating Art. 19(1)({) & (g) nor on the ground of the compensation payable being iinadequate or insufficient so as to infrmge the guarantee under Art. 31(2) of the Constituiton of India. The petition is accordingly dismissed with costs.

V.P.S.

Petition dismissed.

BACHAN SINGH & ORS

STATE OF PUNJAB & ORS

February 18, 1971

S. M. SIKRI, CJ.

G. K. MITTER

K. S. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY

Damaged Areas Act

Arts. 14, 19(1)(/)

Punjab

s. 2(d)

Amritsar

Art. 32

Art. 14

Art. 19(fl(fJ and lg)

Art. 31

Art. 14

Act or Punjab Town Improvement Act

s. 28

Art. 19(5)

I.be' JnoFrovement Trust

s. 20

Art. 31(2)

s. 3(a)

J. P. Goyal

Sobhag Mal Jain

H Bishan Nurain

R. N. SdChthey

Bishan Narain

B. Datta

B. Dadilchanji

C. Mathur

Ravinder Narain

P. Jaganmohao Reddy

Art 14, 19( 1)

Constitution of India

26th June 1962

Sec. 2(d)

Improvement Trust of Amrits

Ghantaghar

Sec. 2(d)

Art. 14

Sec. 2(d)

Art. 31

Jaganmohan Reddy

Section 5

India

Sec. 93

India Act 1935

Act passed the Punjab Damaged Areas Act

9th May 194 7

15th August 1947

15th August 1949

Sec. 2(c)

Sec. 2(b)

Sections 1 to 3

Section 1

Amritsar Improvement Trust

Sec. 2

East Punjab Damaged Area Act 1949

Section 2(e)

Sec. 2(f)

Sec. 3

Sec. 28

Punjab Town Improvement Act 1922

Sec. 6

Section 3

Section 5

Jaganmohan Reddy

Section 7

Sec. 8

Sec. 9

Sec. 11

sec. 2(b)

Sec. 9

Section 4

Section 12

Sec. 13

Section 14

Sec. 15

Sec. 19

Sections 13 and 16

Sec. 13

Sec. 11

Sec. 11

Sec. 16

section 15

Sections 19 to 21

Sec. 23

Sec. 12

Section 2

Section 24

Section 25

Art. 19(1 )(f)

Art. 19

Sec. 12

Sec. 20

Supreme Court

Art. 19( 1)

Section 3

Section 28

Sec. 12

Dharam Singh Market

Ahata Bishan Dass

Kesribagh

Inder Singh Arora

Ahata Bishan Dass

J allianwala Bagh

Art. 31

Sec. 2

26th Jooe 1962

Sec. 5

Art. 14

Art. 19(1)({)

Art. 31(2)


MANAGEMENT OF PANITOLE TEA ESTATE

THE WORKMEN

Febru°'ry 18, 1911

[J. M. SHELAT AND I. D. DUA, JJ.J

J, idust1ial Dispute-Disniissal of worknJen-Order of reinstatcnH!lli b, y Labour Court-Reinstatemen~ of compensation-Circumstances justifying reinstatemcnt-Constif,; tion of Indic, Art. 136---Interference by Supreme Court.

In the course of a domestic enquiry on a charge of pilferage against B a part time clerk who was incharge of a godown of the appellant a chit was produced suggesting collusion with him of H another workman. The appellant ; Gstituted a domestic enquiry against the workman and he was dismissed.

On a reference of the Industrial Dispute the Labour Court held that the contents of the chit were too vague and were procured only to harass the workman for no fault of his, that the domestic enquiry was violative of the principle of natural justice, and its findings perverse and without a!)y evidence to support them.

Consequently it ordered the reinstatem.ent of the workman. The management appealed to his Court contending that instead of reinstatement the workman should be paid compensation. It also raised the plea that it had lost confidence in the workman.

HELD : The present case is not one in which this Court would be justified in interfering, on appeal under Art. 136 of the Constitution, with the order of 1he Tribunal. The ques.ion whether on setting aside the wrongful

dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general ru:" in the absence of any special Circumstances being of reinstatement. In exercising this discretion, fairplay towards the employee on the one--lnmd and interest of the employer, including considerations of discipline In the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate ntere0 ts of ooth of them have to be kept in view if the order 'is expected to promote the desired objective of industrial peace and maximurrl possible production. The past record of the employee, the nature of the alleged conduction which the order of the employer is set aside, the nature of the duties perforn1ed by .the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into -consideration. These factors are merely illusl'rative. Each case bas to be f decided on its own facts and no hard and fast rule can laid down to ct>ver

generall} all cortceivable contingencies. Proper balance has to be maintained be1-n the coofficting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress.

[780 DJ.

There was no evidence to conclude that the management lost confidence in the wo1kman. If the workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside apd on the facts if is not poss; ble to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman. he

A 1s entitled to be reinstated.

The suggestion that having regard to the nature oi the p<oceedings against the workman the management has lost confidence wa$ acceptable. [782 F]

If the workman's dismissal was wrongful then merely because proceedings for , adjudication of the industrial dispute have taken a long time (I 0

years) was by iti; elf no reason for not directing his reinstatement if it B was otherwise justified being in accordance with the normal rule. [782 G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1137 of 1970.

• Appeal by special leave fom the award. dated qctober 30, 1969 of the Labour Court of Assam ainll D1brugarh m Reference No. 20 of 1964.

M. C. Chag/a and R. Gopalakrishnan, for the appellant.

K. P. Gupta, for the respondents.

D The Judgment of the Court. was delivered by

Dua, 1. In this appeal special leave was limited to the question whether relief by way of payment of compensation should not be substituted for the relief by way of reinstatement granted by the Labour Court to the workman, H. P. Bhagavati, Store Clerk.

The Panitole Tea Estate belongs to the Jokai (Assam) Tea Co., Ltd., Panitole.

Depot Line was one of the Out Gardens under this Tea Estate and it had a separate godown.

One B. K.

Borgohain, a part-time clerk, was in charge of this godown.

Ammonia sulphate fertiliser ws stored in this godown, 970 bags having been received there between December 12, 1960 and January 5, 1961.

Pursuant to receipt of an anonymous letter that there was pilferage of these bags the stock was checked and 89 bags were found missing. In the course of the . domestic enquiry against Borgohain a chit (Ex. 12) as produced _by him which suggested H. P. Bhagavati's collusion with Borgohain in this affair.

Bhagavati was accordingly also chargesheeted and after domestic enquiry he was dismissed with effect from March 23, 1961.

This order of dismissal of Bhagavati gave rise to an industrial dispute which was duly referred to the Labour Court of Assam at Dibrugarh.

The Labour Court by its award dated October 30, 1969 held that the contents of Ex. 12 were too vague to connect Bhagavati with the offence charged.

According to the Labour Court the management had procured this exhibit only to harass Bhagavati for no fault of his.

The domestic enquiry was also found to be violative of the principle of natural

justice and it conclusions perverse, there being no evidence to support them.

Bhagavati was accordingly held entitled to reinstatement with all the back wages and benefits.

The present appeal is directed against this order and, as observed earlier, the only question we have to decide is whether Bhagavati should be reinstated or he should paid compensation instead of reinstatement. The dismissal of Borgohain, it may be pointed out, was not challenged by him and that order became final.

In this appeal we are not concerned with his dismissal.

On appeal in 'this Court Shri Cltagla has submitted that the management has lost confidence in Bhagavati and it would be unjust and improper to force his reinstatement as a store clerk on the management after a lapse of ten years.

The learned counsel offered to pay to the workman any reasonable compensation as may be ordered by this Court.

Reliance in suport of this submission against the order of reinstatement was placed on two recent decision of this Court Ruby General ln, surance Co. Ltd.

v. Ciwpra( 1) and Hindustan Steel Ltd. v. A. K. Roy('). In the firs: case special leave granted . by this Court was also limited only to the questio, n .whether the relief granted to the workman concerned should have been reinstatement or compensation.

On a consideration of the facts and circumstances of that case this Court had set aside the order of reinstatement and directed the company to pay compensation to the workman concerned.

Our attention has been drawn to some of the observations made in that case.

This Court said there :

"In the present case we are of the view that 1einstatement directed by the tribunal was inexpedient. The respondent had served the company in all for a period of twelve months.

It was not as if he had been induced to give up any employment he was engaged in for joining the service of the appellant-company.

The company's establishment in Delhi was comparatively a small establishment.

There c.an be no doubt that the position of a stenographer in such an establishment would be one of confidence and trust as he would be taking down dictation and typing out all kinds of matters including sometimes confidential and even secret matters.

For example, a report of the working of this branch to the company's headquarters by the branch manager, or a report as regards the working of

other rival insurance companies in Delhi area, or a report regarding promotion and even demotion of some of the members of the staff of the branch office, and such other matters would be of a highly confidential

(lr{l97Jl] 1 L.L.J. 63.

(2) [1970] 1 L.L.J.228.

F ..

PAN!TOLE TEA ESTATE v. WORKMEN (Dua, J.) 777

nature. Ii the branch manager were, for qne reason or the other to lose confidence and trust in stenographer working under him, it :would obviously be impossible for him to give dictation on such matters to such a stenographer. . On the assumption that the respon dent was made to take dictation and type out letters in

onnexion with other concerns in which the appellantcompany was interested and the respondent was not paid any extra remuneration for such work, the respon dent was, on his admission retaining with him surrepti

tiously copies of those communications.

As the tribunal has remarked, the respondent did so in order to preserve evidence that he was made to take do\\jn letters relating to concerns other than the appellant-company.

Whether in terms of his employment as a stenographer the regional manager could take such work or not is a matter in which we need not go, but he did admittedly retain with him copies of a~ many as 32 such communications which he exhibited as Exs. W. 10 to W. 42.

These copies were clearly the property of the company which the respondent in no event could retain in his possession without the consent of his employers. If the regional manager were to entertain a feeling that, if reinstated, the respondent would in future also retain with him copies of documents of a confidential nature whenever the respondent felt that such retention would be of use or advantage to him, such a feeling on the part of the regional manager that he can no longer trust the respondent with any confidential matter cannot be regarded as altogether unjustified.

The regional mana ger might we!J feel that if the respondent was capable of collecting evidence against the company, he might in future collect perhaps evidence of a more dangerous and harmful nature.

Obviously, if he cannot repose confidence in the respondeint, if reinstated, he cannot make any use of his services, as a stenographer. In the circumstances, we think that the tribunal ought not to have directed his ,-.instatement despite its conclusion lliat the termination of his services was wrongly made. but ought lo have awarded suitable compensation instead."

In the second case this Court observed :

"The question, however, still is whether the tribunal H was, in the circumstances of. the case, justified in directing reinstatement. It is true that some of the decisions of this Court have laid down that where the discharge or dismissal of a workman is not legal or

justified, the relief which would ordinarily follow would be reinstatement.

The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make reinstatement inexpedient or improper.

Tne Tribunal has, therefore, to exercise its discretion judicially al)d in accordance with well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one not legally exercised.

In either case the High Court in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the Tribunal has exercised its. discretion it will not examine the circumstances of the case to ascertain 1 whether or not such exercise , was properly and in accordance with the well-settled principles made. If the High Court were to do so, it would be a refusal on its part to exercise jurisdiction."

And again:

"The Tribunal no doubt felt that it was not established whether the investigation and the report following it were properly done and made, that the company ought to have disclosed it to the workman and given him an opportunity to vindicate himself and that the non-disclosure of the report made the termination illegal and unjustified, That may or may not be right.

But what was relevant, at the stage when the Tribunal came to decide what relief the workman was entitled to, was the question whether the management genuinely apprehended as a result of the report that, it would risky to retain the workman in the company's service They may have gone wrong in the m, anner of terminating the workman's service as held by the Tribunal.

But, if the management truly believed that it was not possible to retain the workman in the company's service on grounds of security and consequently could not place confidence in him 11ny longer, the present case would be one of those exceptional cases where the general rule as to instatement could not PT?Perly be applied.

This of course does not mean that m every case where the employer says that he has lost .confic

dence in the workman, and, therefore, has terml!lated his service that reinstatement cannot be granted and the

F •

Tribunal has to award compensation. On the other hand, if on an examination of all the circumstances of the case, the Tribunal comes to t!le conclusion that the apprehensions of the employer were genuine and the employer truly felt that it was hazardous or prejudicial to the interests of the industry to retain theworkman in his service on grounds of security, the case would be properly one where compensati<Ji!l would meet the ends of justice.

On a consideration of all the circumstances, the present case, in our view, was one such case.

The Tribunal exercised its discretion mechanically without

wghing the circumstances of the case.

That wa.~ no exercise of discretion at all.

There is ample authority to the effect that if a statutory tribunal exercises its Qiscretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. (See S. A. de Smith, Judicial Review of Administrative Action (2nd ed) pp. 324-325.

One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well-settled principles laid down in decisions binding on the Tribunal to whom the discretion is entrusted.

The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise its jurisdiction. Its order, therefore, becomes liable to interference." Shri Chagla has argued that in the present case there was no exercise of judicial discretion by the Labour Court and the impugned order was made mechanically without considering the relevant circumstances and applying its mind to the question as to which of the two reliefs was more appropriate.

On behalf .of the respondents i( is submitted that Bhagavati, the workman concerned in this.case, is innocent and the management was found by the Labour Court on evidence to have resorted to unfair labour practice.

The chit, Ex. 12, was also held not to be in the handwriting of Bhagavati. It is further emphasised that criminal proceedings were also started against Bhagavati but he was discharged in the criminal case for want of evidence implicating him.

The respondent's learned counsel has, in support of his submission, drawn our attention to The Punjab National Bank Ltd. v. Its Workmen( 1), M. L. Bose & Co. (P) Ltd. v. Its Employees( 2 ) and Workmen of Untied Bleachers (P) Ltd., v. United Bleachers (P) Ltd.(3), (a decision by a single Judge of the Madras High Court).

In the Punja.b

[1960] 1 S.C.R. &06

(2) [1961] II L.L.J. 107 (S.C.)

(3) [1968] 1 L.LJ. 529

--~---

780 S.tJP, REME- COURT. REPORTS

National Bank case(1) it was observed that the propriety of teinstatement in a case of wrongful or illegal dismissal is normally a question of fact and where the industrial tribunal on a proper consideration of the relevant factors refuses to pass such an order the Supreme Court would be i:eluctant in the absence of any general or substantial question of law to interfere under Art. 136 of the Constitution.

According to the counsel where reinstatement has been ordered by the court or tribunal_ in an industrial dispute arising out of dismissal of a workman this Court should, in the absence of special circumstances, decline to interfere with

tl::at order on special ieave appeal.

Support from the case of M. L. Bose & Co. (P) Ltd. (2) is sought for the contention that reinstatement is the normal rule when dismissal is held to be wrongful and it is immaterial that the employer has since employed other workmem..

The case of United Bleachers(') follows the observations of this Court in the case of Punjab National Bank Ltd.( 1), M. L. Bose_& Co. (P) Ltd.(2) and Swadesamitran Ltd. v. Their Workmen (4).

In our opinion the present case is not one in which we would be justified in interfering on appeal under Art. 136 of the Constitution with the order of the Tribunal.

The question whether on . setting aside the worngful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the Judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement; In exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded.

This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious, working of the establishment.

Legitimate interests of both of th'em have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production.

The past record of the employee, the: nature of the alleged conduc_t for which ac!ion was taken against him, -the grounds on which the order of the employer is set aside, the n; iture of the duties_ performed by the employee concerned and the nature of the ind!1strial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just sted are merely illustrative and it is not possible to exhaustively enumerate them.

Each case has to be decided .on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies.

Proper balance has to be maintained between the conflicting claims of the employer and the employee

(1) [(19601 I S.C.R.806.

(2) [1961] 2 L.L.J.107

(~.C.).

(3) 1968] 1 L.L.J. 529.

(4) [ 1960] I L.LJ.504.

without jeopardising the larger interests of industrial peace and progress.

In Hindustan Steel Ltd.'s case(.') this Court substituted the order of reinstatement by an order of payment of compensation on the ground that the police report and the security officer's recommendation to the Company showed that it was not desirabl_e for reasons of security to reinstate the employee.

In that case 1t was obsery¢d : ·

"As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not b~ considered as either desirable or expedient. These were the cases where there had been strained re1ations betwween the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interests of the industry.

These cases are to be found in-Assam Oil Co. Ltd. v. Workmen( 2 ); Workmen of Charo/tar Gramodhar Sahakari Mandali Ltd. v.

Charottar Gramodhar Sahakari Manda/; Ltd. (3 ); Doomur Dulung Teq Estate v. Workmen(')) and Ruby General Insurance Co. Ltd. v. P. P. Chopra('). These are however, illustrative cases where an exception was made to the general rule.

No hard and fast rule as to which circumstances would _in a given case constitute an exception to the general rule can possibly be laid down as the TriblJillal in each case keeping the objective3 of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice."

The general rule of reinstatement in the absence of special circumstances was also recognised in the case .of Workmen of Assam Match Co. Ltd. v. The Presiding Officer, LabOur Court Assam &a11r.(6) and has again been affirmed recently in M/s. Tulsidcs Paul v. The Second Labour Cour~, W.B. & ors.(1). In Messrs Tu/sidas Pau/( 1) it has been emphasised that no hard and fast rule as to which circumstances would establish an exception to the general rule could be laid down and the Tribunal must in each. case decide the question in a spirit of fairness and justice in keepmg with the objectives of industrial adjudication.

(!) [1970] l.L.L.J. 288.

(2) (1969) 3 S.C.R. 457.

(3) CA. 382/66 d/14.8-1967.

(4) C.A. 516(1966 d/26-10-1967

(5) [1970] l.L.LJ.63.

(6) C.As. 1070-1071/1963 d/27-10-64.

(7) C.A. 1607/1966 d/3-2-1971.

--·

In the present case Shri Chagla has laid main stress on the submission that the management has Jost confidence in Bhagavati's integrity and it wuld be wholly improper to force his rein~ .statement o~. the manaement. The store of which this workman was in, charge, according to the learned counsel, contains goods wort~ la~ of 11:1pees and in the .asence of the rquisite confidence m his mtegnty the order of remstatement is likely to harm the cause of industrial peace in the appellant .concern. The appellant has expressed willingness to pay any reasonable amount by way of compensation.

We have 'ln support of the plea of want.of confidence been.· taken through the correspondence bet ween the management and Bhagavati.

From that correspondence we are unable to conclude that the management lost confidence in Bhagavati because of the lapses mentioned therein.

Itappears that it was only when the management suspepted Bhagavati's collu&ion with Borgohain that the management felt that his integrity :was questionable. That chit havinfi been found not to-be in Bh<1gavati's handwriting and Bhagavah's dismissai having been held to be wrongful we are. unable to sustain the plea of want of confidence raised by Shri Chagla. It is significant that no such plea was sought to be substantiated before the Labour Court.

Jt is undoubtedly true that the store of the Tea Estate would contain goods of substantial value and a person really suspected of being untrustworthy may not justifiably" be forced on the unwilling employer, but that aspect requires determination on facts which should have been properly placed before the Labour Court and a finding secured after appropriate trial.

The suggestion that having regard to the nature of the pr-:eedings against Bhagavati, the management has Jost confidence is unacceptable.

A similar argument was repelld in the case of Assam Match Co.(').

H the workman is. entitled as a general rule to be reinstated after his wrongful dismissal is-. set asideand on the facts it is not possible to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman he is entitled to be reinstated. The next argument that Bhagavati should not be forced on the management after a lapse of ten years is equally unacceptable because if his dismissal was wrongful then merely because proceedings for adjudication of the industrial dispute have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule.

A similar contention was also repelled in the case of Assam Match Co. ( 1).

In Swadesamitran's case( 2 ) also this Court observed that in the case of wrongful dismissal, discharge or retrenchment a claim for reinstatement can'not be defeated merely because time has elapsed or that the employer has engaged fresh hands. We are, there fore, unable on the existing record to sustain the appellant's sub- (ll C.As. 1070-1071/1963d/27-10·64. (2l [1960] l.L.L.J. 504

. c .

t i>ANlfOLE TEA ESTATE I'. WORKMEN (Dua,!.) 783

' A mi>sion lhat the order of reinstatement made by the Labour Court

'ulfers from any legal infirmity justifying its substitution by an order of payment of compensation to the workman. A suggestion has been thrown by Shri Chagla that in all probability the employee must have secured employment elsewhere as he could not have remained idle all these years an payme.nt of compen- B sation in place of reinstatement would, therefore, cause kim no prejudice.

On behalf of the employee it is denied that he had been employed anywhere else during this period. In out opinion, this matter being controversial should have been raised before the Labour Court and we are not in a position to express any opinion on it in the present proceedings.

C The appeal accordingly fails and is dismissed.

In the circumstances of the case there will be. no order as to costs in this Court.

Y.P.

Appeal dismissed.

6-LllOOSup.C117l

MANAGEMENT OF PANITOLE TEA ESTATE

THE WORKMEN

Febru°'ry 18, 1911

M. SHELAT

I. D. DUA, JJ

Art. 136

Supreme Court

Art. 136

M. C. Chag

R. Gopalakrishnan

K. P. Gupta

H. P. Bhagavati

Panitole Tea Estate

B. K.

Borgohain

December 12, 1960

January 5, 1961

Borgohain

Bhagavati

March 23, 1961

Labour Court of Assam at Dibrugarh

October 30, 1969

Cltagla

Delhi

S. A. de Smith

Judicial Review of Administrative Act

Chagla

Bhagavati

Madras High Court

Art. 136

M. L. Bose & Co. (P) Ltd.

United Bleachers

Punjab National Bank Ltd.

Art. 136

Hindustan Steel Ltd.

(1969) 3 S.C.R. 457

Bhagavah

Assam Match Co.

Swadesamitran


SUKHNANDAN SINGH ETC.

JAMIAT SINGH & ORS.

Februar, y 18, 1971

[I. D. DUA AND V. BHARGAVA, JJ.J

Pe-e111p1i~11--:-Suit for--Co/lusion-;-Suit by son.< of Vendors for pre- 1"fnP!'?n7Pla1n!it1s c.n_d vendors residing and .messing l!Ogether altd expenset; .of /1,1ga11on being pwd by vendor.<-!/ mfjicient to e.<tab/ish col/usirm,

Limitation Act 1908-Article 10--Suit for Pre-emption-Limitdtion- Purt of the /anti sold i11 tJie hands of tenants-Starting point of /i111itrztion- ":Physicn/ pos.ression", 1neaning.

In a suit for pre-emption by. the sons of the vendors of cerlain land 1hc vendees pleaded collusive nature of' the suit and limitation. The trial court found that the vendors and the plaintiffs resided and messed together .1Jnd the expenses of the litigation were paid by the vendors.

From this it was concluded that the suit had been filled by the plaintiffs at the instance 10f and in collusion with the vendors and therefore the plaintiffs were held lto be estopped from exercising their right of pre-emption. On th~ question

of limitation the trial court held thatthe vendors1 and not their tenants. \vere in possession of the land sold, that possession of the land was delivered to the vendees on the date of the sale and therefore th\! suit wa5 barred by limitation. The first appellate Court reven; ed the finding of the trial court on both the pleas. In regard to the plea of limitation it held that a part of the land sold was in possession of tenants and, therefore, it did not admit of physical possession which meant immediate pcr-; oital possession.

In that view of he matter, under Section 10 of the limitation _,, er, 1908 the terminus a quo was the date of registration of the "11e deed .and therefore within the one year limitation under Article 10.

T'io High •Court affirmed this decision. In appeal to this Court,

HELD : dismissing the appeal,

(I) On the facts of the present case there was absolutely no material ''" which the plaintiffs could be held to have lost their right of pre emption Qn the ground of collusion. Merely because the v•ndors,'the fathers of the plaintiffs, were helping their sons to exercise the statutory right con

fcrrcd on the sons could not without more, deprive them of the right to be substituted for the vendees" in exercise of their right of pre-emption.

[788 FJ

(ii) On the finding of the Disltict Judge and the High Court physical possession of the whole of the property sold was not taken by the vendees On the date of sale. Therefore the first part of Article 10 of tho Limita- tion Act docs not apply. The second part of Article 10 covers ca; cs where the subject of the sale,_ which means the whole of the proper!\' <old, does not admit of physical possession and that would be so where a part of the land in the possession of tenants. The argument that use of the c<Press1on "; uhject to the sale" suggests that this Article would apply only if the ; intire ond not only a part of the land is in the po<Session of the tenant', lS not .acceptable. [789 Cl " Jn the present ease the prperties in I.he .and.s of tenants ha'<, to be hold to be incapable of "Physical possession which means per.on"I and immediate possession.

...

A Btul Begam v. Mansur Ali Khan, I.L.R. 24 All.17 and G/lulum

Mustaf~ v. Shaltabuddin, 49 P.R. 1908, referred to.

CIVIL APPELLATE JuR1so1cnoN: Civil Appeal No. 1729 of 1967.

Appeal by special leave from the judgment and decree dated B October 17, 1967, of the Punjab and~ Haryana High Court 111

Regular Second Appeal No. 822 of 1965.

K. L. Gosain and Nmmit Lal, for the appellants.

Purushottam Chatterjee and D. D. Sharma, for the respondents.

The Judgment of the Court was delivered by

Dua, J. In this appeal by special leave from the judgment and decree of a learned single Judge of the Pjab and Haryan:i

High Court arising out of a i;>re-emption suit only two questions were raised by the learned counsel for the appellants who were vendees-defendants in the trial court.

The suit was instituted by the three sons of three vendors who were real brothers, and the two points canvassed in this Court challenge the decisio.ns of the High Court and of the court of the District Judge on issues 6 and 7.

Those issues are :

"6. Is the suit collusive? If so, its . effect.

7. Is the suit within time?"

Both these issues were decided by the trial court against the plaintiffs but the District Judge on appeal reversed the decision of the trial court on both the issues and the High Court on second appeal affirmed the decision of the first appellate court.

The relevant facts may now be stated in brief.

Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar. Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share. Gurdas Singh son of Angrez Singh,

I /3rd share at the rate of Rs. 840/- per bigha.

A sum of Rs. 7,000/- was received in cash as earnest money.

Qn December 6, 1961 a formal sale deed was executed with some variations in sh'ares and also with addition of Smt. Chand Kaur, wife of Sardar Inder Singh as one more co-vendee.

The sale price was stated to be Rs. 32,550/- Possession of the land sold was stated to have been delivered and it was also recited th.at consolidation proceedings under s. 21 (1) of the Consolidation Act had been completed but further proceedings in favour of the vendees would be taken after the proceedings which might be taken under

s, 21(2). This sale deed was duly registered on .March 9; 1962.

The suit for pre-emption by the three sons of three vendors was instituted on March 6, 1963. It was contested by the vendees.

The pleadings of the parties gave rise to several issues but we are only concerned with the issues relating to the pleas of collusive nature of the suit and limitation.

The trial court dis- , posed of the issues nos. 5 and 6, relating respectively to waiver of the right of pre-emption by the plaintiffs and to the collusive ,. . nature of the suit by dealing with .them together.

Photographs . showing the. plaintiffs and the vendors being together along with . libe plaintiffs' counsel in the court compound during the course ., "(.of this litisation were produced as evidence in the case.

Exhibit

1 •

).1-2 a certified copy of the Register of Consolidation Proceedings, . 'Produced by the plaintiffs in evidence showed that this copy .. had

:. been prepared at the instance of Kartar Singh, one of the ve.ndors ·

and .father of J amiat Singh, plaintiff.

According to the trial court there was also evidence that the plaintiffs and the vendors resided and mesed together.

On consideration of this material the trial court held that the vendors and the pre-emptors resided and messed together and the expenses of the litigation were paid by the 'vendors.

From this it concluded that the suit had been filed by the plaintiffs at the instance of and in collusion with the vendors.

The right of pre-emption being a priratical right, according to the trial court, to quote its own words "it is necessary that the pre-emptors must not act in collusion with vendors or act in oad faith." The plaintiffs were on this reasoning held to be estopped from exercising their right of pre, emption. On the question of lin1itation the trial court. held that the vendors and not. their tenants were in possessioo of he land sold, which had been allotted to them in the consolidation proceedings and the possession of that land was delivered to the veindees on the date of the sale. The suit was accordingly held to be barred by time. The suit was dismissed for all these reasons.

On appeal by the plaintiffs the District Judge reversed the conclusion of the trial court both on the point of estoppel or collusion and of limitation.

Accordii:tg to that court in order to prove collusion the defendant ha~ to prove that the suit was being fought for the wndor's benefit, the normal presumption being that the plaintiff .1ues for his o.wn benefit. In support of this view several decisioms were relied upon by the District Judge. In the present case, according to the learned District Judge, the plaintiff Jamiat S£ngh had clearly stated that he was pre-empting the present sale with his own earnings .and the learned District Judge found no rebuttal to this assertion.

Neither the fact thafBx: p;2 had been obtained by one of the vendors nor the fact that the vendors were present in the

court coml??und with the plaintiffs and their counsel during . the course of htigation indicated that the present suit had necessarily

c •

; F

-·?"<-·~

•.. been instituted for the benefit of the vendors.

On this reasoning the decision on the collusive nature of the suit which must result in .its disip.issal was reversed. In regard to the limitation also the learned District Judge concluded, in disagreement with the trial court, that a part of the land sold was in possession of tenants and, therefore, ii did not admit of physical possession, which means immediate personal possession. In that view of the matter under Art. 10 of the Indian Limitation Act, 1908 the terminus a

quo was the date of registration of the sale deed. The suit was thus held to have been instituted within one year from the date of registration and, therefore, within limitation under Art. 10. The judgment and decree of the trial court was reversed and the suit aecreed.

On second appeal a learned single Judge of the Pun.jab and HaryQna High Court held that there was no clear and reliable evidence that the vendor and their son were united in mess and estate.

The other two circumstances, namely, that the vendors and the plaintiffs along with their counsel were seen together in court compound and that Ex. P-2 had been obtained by one of the vendors one day before the institution of the suit, were not considered sufficient to establish the collusive nature 'Of the suit. In regard to the stateffifnt of Jamiat Singh the High Court undoubtedly felt unimpressed by his statement but we do not think it was open to that court on second appeal to appraise the credibility of the testimony which was believed by the final court of fact when there was no illegality in the appraisal of the testimony by the District Judge and it was open to him to take the view he did. Jamiat Singh had stated that he was separated from his father since about three years and that he was spending on the litigation from what little amount he earned. The matter was not pursued in cross-examination as to what was the source of his earniings. Even after feeling unimpressed by the statement of J amiat Singh, the High Court came to the conclusion that it was for the vendees to establish the collusive nature of the plaintiffs' suit. On the evidence produced the District Judge having come to the conclusion that they had failed to discharge this onus this conclusion was one of fact and not being vitiated by and error of law it was held binding on second appeal.

The cootention that the District Judge was wrong in holding that a part of the land sold was in possession of the tenant at the time of the sale was also repelled. The conclusion of the District Judge that field no. 24/21 out of the suit land was under the cultivation of Bahadur Singh, a tenant at will, as was clear Ex. X-4, a copy of Khasra Girdwari relating to Rabi 1962 and Kharif 1962 was also held to be a finding of fact binding on second appeal. This documertt was not shown to have been misread by

the first appellate court. on this finding Art. 10 of the Indain Limitation Act, 1908, and 1not S. 30 of the Punjab Pre-emption Act. was held applicable a.nd the suit was thus considered to be within limitation. For this view reliance was placed on two decisions of the Punjab Chief Court and a Bench decision of the Nagpur High Court. The appeal was, however, partly accepted by raising the pre-emption money by an additional sum of Rs. 4, 133.50.

In this Court again the learned cot1insel for the appellantvendees-pressed the points of collusion and limitation. We are, however, 11nable to find merit in either of them. So far as the question of collusion is concerned it was not clarified by the learned counsel how the plaintiffs could be held to have Jost their 'fight of pre-emption merely becauses their fathers either came to the court with them, which they did openly1 or allowed their sons as plaintiffs to use in court, copy of a public document procured by the father of one of the plaintiffs. Collusion in judicial proceedings is , normally associated with secret arrangement between two persons that the one hould institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In scuh a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask. designed to give false appearance of a genuine judicial <letermination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham.

In the case of pre-emption it is open to the plaintiff to find financial aid from any source he likes. He has a statutory right to pre-empt the sale and it is no concern of the ve.ndees whether he borrows moqey from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a persnoal right and is not capable of being transferred. And the right of pre-emption being a right of substitution the vendor also canttot-in

the garb of a benamidar pre-empt his own sale.

But merely because the vendors who are the fathers of the plaintiff preemptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of preemption. The property pre-empted. if they were successful, will belong. to them and not to their fathers who were the vendors.

Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do soine act In order to prejudice a third person or for some im

proper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a preeptor-plaintiff whd is a benamidar for the vendor or some oer party loses his right because of being a benamiliar is a quf!OIT which does not concern us in this case and we express no op1mon thereon. On the facts of the present case there is absolutely no

F -

SUKHNANDAN v. JAMlAT (Dua, /.) 789

material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion.

The next point relates to the plea of limitation. Article 10 o[ the cond Schedule cf the India Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale. sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sak

is registered. Section 30 of the Punjab Pre-Emption Act applies only when the cases does not fall within Art. 10. On the finding

of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not tu.ken by the vendees, on the date of sale. Therefore, the first part of article does not apply.

According to the appellants' counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees thein Art, 10

would be inapplicable and S. 30 of the Punjab Pre-emption Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view in misconceived. The second part of Art. 10, in our opinion, cove~ cases where the subject of the sale, which means the whore i>f the property sold, does not admit of physical possession and that would be so when a part of the land is in the possesion of the tenants. The argument that use of the expression "subject of the sale" suggests that this artcile would apply only if the, entire and not only a part of the land is in the possession of the tenants is not acceptable. The expressbn "physical 1possession" came wp for construction before the Privy Council in BatuT Begam v. Mansur Ali Khan(') Lord Robertson speaking for the Judicial Committee said :

"What has to be considered is as the High Court accurately formulated, the question, does the property admit of physical possession? . The word_ "physical" is of itself a strong word, highly restrictive of the kind of possession indicated; and when it is found as is pointed out by the High Court, that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,-first in 1859 prescribing "possession" then in f871 requiring "actual

possession" and finally in 1877 substituting the word "physical" and "actual", it is seen that that word has

(I) 1.L.R.C4 All. 17 ..•.

been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the Higll Courts are right in the conclusion they have stated.

Their Lordships consider that the expression used by Stuart, C.J., in regard to the words "actual possession" is applicable with stil! more certainty to the words

"physical possession" and that what is meant is a "personal and immediate" possession."

This view has evec since then been followed by the High Courts in India.

No decision holding to the contrary was brought to our notice.

Indeed, Shri Gosain virtually conceded that there was none to his knowledge.

The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. . It was so held in Ghulam Mustafa v. Shahabuddin( 1 ). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decision overruling the dictum is one of the earlier decisions of that Court.

This view has consistently held the field in the Punjab and we do not find any cogent reason for disagree ing and upsetting it. If the date of registration of the sale deed. be the terminus a quo then indisputably the suit must be held to

be within limitation.

These being the. only two points agitated before us this appeal must fail and is dismissed with costs.

R.KP.S. ' Appeal dismissed.

(I) 49 P.R. 1908 (F.B.).

SUKHNANDAN SINGH ETC

JAMIAT SINGH & ORS

I. D. DUA

V. BHARGAVA, JJ

Limitation Act 1908

Article 10

Section 10

Article 10

Article 10

Article 10

K. L. Gosain

Nmmit Lal

Purushottam Chatterjee

D. D. Sharma

Dua

Haryan

Kartar Singh

Bachan Singh

Sardara Singh

Sohel Singh

September 19, 1961

Sukhnandan Singh

Sukhrninder Singh

Balkar

Gurdev Singh

Gurminder Singh

Gurpakh Singh

Teja Singh

Gurdas Singh

Angrez Singh

Chand Kaur

Sardar Inder Singh

s. 21

.March 9; 1962

March 6, 1963

Kartar Singh

J amiat Singh

Jamiat S£ngh

Art. 10

Indian Limitation Act, 1908

Art. 10

Pun.jab and HaryQna High Court

Jamiat Singh

Bahadur Singh

Khasra Girdwari

Art. 10

Indain Limitation Act, 1908

S. 30

Punjab Chief Court

Nagpur High Court

Article 10

Schedule cf the India Limitation Act

Section 30

Art. 10

S. 30

Gosain

Art. 10

Robertson

Stuart

India

Punjab


S. M. NANDY & ORS.

v ..

STATE OF WEST BENGAL & ORS.

February 19, 1971

[S. M. S!KRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.]

Wert Bengal Land (Requisition and Acquisition) Act, 1948-lf ultra vires Constitution under Art. 19(1) (f) and (5).

On the question whether the West Bengal Land (Requisition and Acquisition) Act, 1948, W!)S ultra vires the Constitution under Art. 19(1) (f) read with 19(5).

HELD : The State of West Bengal was faced with many emergent problems created by the partition of India and the impugned Act was enacted in order to provide for requisitioning and speedy acquisition of land under s. 3 for a number of public purposes mentioned therein. The necessity for requisitioning must necessarily be left to the State Government.

Though there is no express provision to make a representation against an order of requisition undelr s. 3 (2) there is no bar to such a representation being made and to its being considered by the State Government or appropriate Governmental Authorities. If, however, any order is made for any collateral purpose, dr has been made for purposes not mentioned in s. 3 of the Act, or is mala fide, it can always be challenged in a civil court. Under ss, 7 (3) and ( 4), 8 and SA of the Act, fair compensation bas been provided for requisitioning which is determinable by a civil court, if there is a dispute regarding the amount, and ultimately by the High Court and this Court. Therefore, the restrictions imposed by the impugned Act, are not unreasonable. [792 C, D; 794 D-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 500 Of 1967.

F Appeal from the judgment and order dated January 13, 1965 of the Calcutta High Court in Appeal from Original Order No.

104 Of 1963. .

Arun Kumar Datta and D. N. Mukh11rjee, for the appellants.

Niren De, Attorney-General and P. K. Chakravarti for the respondent. '

The Judgment of the Court was delivered by

Sikri, C.J.

The following question has been referred to the

Constut!on Bench under the proviso to art. 145 ( 3) of the Constitution :

"~~7ther the West engal Land (Requisition and Acqms1tion) Act 1948 JS ultra vires the Constitution under art. 19(1 )(f) read with art. 19(5) ?"

- '",.

SUPREMECOURT REPORTS [197 l j 3 S.C.R.

The learned counsel for the appellant, Shri Arun Kumar

J?tta, challenges the Wi:st Bengal Land (Requisition and Acquis1t1on) Act, 1948-heremafter referred to as the impugned act-- on the ground that it does not impose reasonable restrictions within art. 19 ( 5) of the Constitution.

He urges three grounds in this respect.

First, he says, that there is no provision for a notice to the ownet or the occupier of the property before an order of requisition is passed, secondly, there is no provision for an appeal against the order of requisition, and thirdly, a civil suit is barred under s. 11 of the impugned Act.

In order to appreciate the points raised by the learned counsel it is necessary to set out the scheme of the Act.

The impugned act was enacted in order to provide for requisitioning and . speedy acquisition of land for a_ number of public purposes. These purposes are : ( 1) maintaining supplies and services essential to the life of the community; ( 2) provide proper facilities for transport, communication, irrigation or drainage; and ( 3) creation of better living conditions in urban or rural areas by the construe- .lion or re-construction of dwelling places in such areas.

The State of West Bengal was faced with many emergent problems created by the partition of India, and this Act was designed to meet these problems in a speedy manner. Section 3 enables the

State Government to requisition land for the purposes mentioned above.

A Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta, when authorised by the State Government in this behalf, may exercise within his jurisdiction tile powers of requisitioning conferred by sub-s. (1). Sub-s. (2) of s. 3 provides for service of this order in the prescribed manner on the owner of land and also on the occupier not being owner of land.

Under sub-s. ( 3) of s. 3 the Collector, or' any person authorised by him in writing in this behalf is entitled to execute the order in the manner mentioned therein, if the order passed under su b-s. ( 2) is not complied with by any person.

There is nothing in the impugned Act which prevents a person on whom an order has been served under sub-s.

(2) to make a representation to the Collector or the State Government against the order of requisition.

Section 4 enables the State Government to use or deal with the land for the purposes aforesaid.

We are not concerned with acquisition in this _case but we may mention that the State Governen.t may ac9mr~ any 13!1d requisitioned under the Act by pubhshmg a notice m the offiCJal gazette that such land is required for a public purpose referred to in sub-s .. (1) of s. 3'. .

Section 6 enables the State Government to derequisition or rele.ase from requisition any land.

S. M. NANDY V. WEST BENGAL (Sikri, C.J.)

A The impugned Act provides for fair compensation in respect. of the requisitioned land under s. 7(3) ands. 7(4) ...

Sub-s. (3) provides that where any land is requisitioned under s. 3, there shall be paid to every person interested 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.

Sub-s: ( 4) lays down the principles to be followed in determining the compensation. If the Collector and the person interested agree to the compensation the Collector is enabled to make an award ordering payment of the agreed compensation. If there is disagreement, sub-s. ( 4) provides that the compensation pay-- able shall be the amount determined by the Court on reference. made by the Collector under cl. (b) of sub-s. ( 1) of s. 8. Under s. 8 the Collector is obliged to refer the matter to the decision of the Court if there is any disagreement with regard to compens<1tion, and sub-s. ( 2) of s. 8 prescribes the same procedure as the: Land Acquisition Act, 1894, in this regard, and the State Govern-· ment is directed to apply the principles set out in sub-s. (1) of s. 23 of that Act, and in cl. (a) of sub-s. (2) of s. 7 of the impugned Act, which provides :

"7 ( 2 j'( a) When the compensation has been determined . under sub-section ( 1) the Collector shall make. an award in accordance with the principles set out in section 11 of the Land Acquisition Act, 1894, al)d no amount referred to in sub-section ( 2) of section 23 of that Act, shall be included in the award :

Provided that interest at the rate of six per centum per annum on the amount of compensation under the award from the date of the publication of the notice under sub-section (1 a) of section 4 until payment shall be included in the amount payable under the award."

It seems to us that these provisions give fair compensation and enable a Civil Court to determine the question in case of a dispute.

An appeal' lies under s. SA from the award made by a Court on a reference under s. 8 as if such awardwas an original decree passed by the Court in. exercise of its civil jurisdiction.

Nt nly therefore fair compensation is provided but the determmat\on of the amount of compensation rests with a CiVil Court in case of a dispute.

Although the learned counset took objection to the court which has to make an award, we see nothing

7-94

SUPREME COURT REPORTS

[1971] 3 S.C.R.

wrong with the definition of the word "Court".

The word A ·"Court" has been defined to mean :

" "Court" means a principal Civil Court of original jurisdiction, and includes the Court of any Additional Judge, Subordinate Judge or Munsif whom the State Government may appoint, by name or by virtue of his office, to perfonn concurrently with any such principal Civil Court, all or any of the functions of the Court under this Act within any specified local limits and, in the case of a M unsif, up to the limits of the pecuniary jurisdiction with which he is vested under section 19 of the Bengal, Agra and Assam Civil Courts Act, 1887."

Section 11 provides that "save as otherwise expressly pro- vided in this Act, no decision or order made in exercise of any power conferred by or under this Act shall -be. called iri question in any Court." It seems to us that if any order is made for any collateral purpose or has been made for 'purposes not mentioned ins. 3 or is malafide, it can always be challenged.

We are, therefore, of the opinion that it is difficult to hold that restrictions imposed by the impugnt;, d Act are unreasonable.

Fair compensation has been provided for requisitioning, which is determinable by a Civil Court and ultimately by the High Court or the Supreme Court.

Regarding the necessity for requisitioning it musLnecessarily be left to the State Government. It is true that there is no express provision to make a representation

aganst an order of requisition but there is no bar to a represen:

tation being made after an order is served under s. 3 (2) of the Act.

We have no dubt that i'f the representation raises a point which overrides the public purpose it would be favourably considered by the State Government or other Government authorities as the case may be.

Accordingly the question referred tO us is answered in the :.riegative.

The case will now go back to the Division Bench 'for disposal according to law. ·

"V.P.S.

Act held intra vives.

S. M. NANDY & ORS

STATE OF WEST BENGAL & ORS

February 19, 1971

G. K. MITTER

K. S. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Art. 19(1)

Art. 19(1)

State of West Bengal

India

s. 3

s. 3

s. 3

Calcutta High Court

Arun Kumar Datta

D. N. Mukh11rjee

Niren De

P. K. Chakravarti

Sikri

art. 145

art. 19(1 )(f)

art. 19(5)

Arun Kumar

art. 19

s. 11

Section 3

Calcutta

s. 3

s. 3

Section 4

s. 3

Section 6

S. M. NANDY V. WEST BENGAL

s. 7(3)

s. 3

s. 8

s. 8

s. 8

Land Acquisition Act, 1894

s. 23

s. 7

section 11

Land Acquisition Act, 1894

section 23

section 4

s. 8

SUPREME COURT REPORTS

[1971] 3 S.C.R.

section 19

Agra and Assam Civil Courts Act, 1887

Section 11

Supreme Court

s. 3