# STATE OF BHOPAL AND ORS v. CHAMPALAL AND ORS

- **Citation:** [1964] 6 S.C.R. 35
- **Court:** Supreme Court of India
- **Decided:** 1963-12-19
- **Case number:** Civil Appeals Nos. 379 to 383 of 1959
- **Bench:** B. P. Sinha, K. N. Wanchoo, Raghubar Dayal, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bhopal-and-ors-v-champalal-and-ors-3101
- **Pages:** 19

## Headnote

Bhopal .Reclamation and Development of Land (Eradication of Kans)
Act (Bhopal Xlll of 1954) ss. 4, 7-lf s. 4 is violative of Art. 19(1)(/)
of the Constitution-Possession by Reclamation officer-If taking p-OSse,..
sion within Art. 31(2) of the Constitution-Demand for contribution--
Legality.
Ga/tndragadlr:ar /.
The respondents are owners of agricultural land in Bhopal. Their
1 ands were taken possession of by the appellant
under
a notification
under s. 4 of the Bhopal Reclamation and Development of Land (Eradication of Kans J Act. The object of this Act was to eradicate by tleep
tractorisation Kans weeds which are harmful to the productivity of land.
The Act provides for the taking possession of the land infested with kans,
after issuing notifications ·under s. 4 of the Act, and for the deep ploughing of the land by tractors. The expenses incurred by the Government
were to be apportioned among the owners in the area whose lands had
been occupied an(i ploughed.
Demands were made on the respondents
whose lands were occupied and tractorised to pay the costs so apportioned.
Thereupon they filed writ petitions before the Judicial Commissioner challenging the legality of the Act "' well as the legality of the
levy, even assuming that the Act was valid. The Judicial Commissioner
allowed the petitions. Thereupon the State appealed to this Court with
certificate ol' fitness under Art. 133(l)(c) of the Constitution.
In the appeals before this Court the same contentions as those which
were raised before the Judicial Commisisoner were canvassed.
196J
Stot1 of Bhopal
.,.
Champa Lal
SUPREME COURT REPORTS
Held.
(i) The Act contains no provision for the person interested::
having an opportunity to esta&lish that the particular land in which he
was interested was not kans infested and therefore did not stand in need
of any eradication operation. Section 4( 1) read in conjunction with the
power contained in s. 4( 4) coupled with the absence of any provision•
for entertaining objections would, in the circumstances of there being
admittedly patches of land in the same tehsil which ha'd been cleared at
least in 1941 must be
characterised as
arbitrary and imposing
an,
unreasonable restriction on the right to hold and enjoy property within·
Art. 19(1 )(f) of the Constitution.
(ii) The possession of the Reclamation Officer is exclusive and amounts.
to taking possession within Art. 31(2). The shortness of the duration
during which the owner is deprived of his possession has no relevancy to-
),
the question whether ther~ has been a taking of possession of lan'd by
the State. If the duration is short the compensation payable might be
small. The exemption from payment of land revenue (luring the period
of occupation by the State as provided in the proviso to s. 6(2) of the
Act cannot in any sense be treated as compensation for the deprivation
of possession, it only
aUeviates his loss. Section 4( 1)
read
v.·ith
s. 6(1)(h) is unconstitutional as violative of Art. 31(2).
(iii) Section 7 of the Act is mandatory and that as admittedly there
was nO compliance \vith it no lawful demand could be made for the
contribution payable by any landhofder by the Central Government or
~
by the State Government at the instance of the Central Uovernn1ent
without re1.:oursc to the machinery provided by s. 7. The notice-; of
den1and were therefore illegal.
(iv) The extension o( the l\1adhya
PraJ.c~h Act to the Bhopal area.
would be of no avrtil to the State because the Act was brought intoforce prospectively
and not retrospe<:tively.
If therefore the demand
when 111ad.:: was illegal or invalid it cannot he sustained on the basis of
the
~ladhya Pra'desh Act.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeals
Nos. 379 to 383 of 1959.
Appeals from the judgment and orders of the ex-Judicial
>
Commissioner's court, Bhopal (Now Madhya Pradesh High
Court) dated April 9, 30, 1956, in Misc. Civil Case Nos. 18
of 1954 and 21 and 35 of 1955, dated April 9. 27. 1956 in
Misc. Civil Case No. 25 o

## Text

_Characters 0–39,821 of 43,035. This is a partial read: ask again with offset=39821 for what follows._

·6 S.C.R.
SUPREME COURT REPORTS
35
assuming that the appropriate Government acts honestly
J96J
and bona fide. If the appropriate Government refuses to
-
make a reference for irrelevant considerations, or on ex80"'i~!i't:: of
traneous grounds, or acts mala fide, that, of course, would
•·
be another matter; in such a case a party would be entitled T'Boml::,at•
of
to move the High Court for a writ of mandamus.
The result is, the appeal fails and is dismissed.
would be no order as to costs.
There
Appeal dismissed.
STATE OF BHOPAL AND ORS.
v.
CHAMPALAL AND ORS.
(B. P. SINHA, C. J., K. N. WANCHOO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ.)
Bhopal .Reclamation and Development of Land (Eradication of Kans)
Act (Bhopal Xlll of 1954) ss. 4, 7-lf s. 4 is violative of Art. 19(1)(/)
of the Constitution-Possession by Reclamation officer-If taking p-OSse,..
sion within Art. 31(2) of the Constitution-Demand for contribution--
Legality.
Ga/tndragadlr:ar /.
The respondents are owners of agricultural land in Bhopal. Their
1 ands were taken possession of by the appellant
under
a notification
under s. 4 of the Bhopal Reclamation and Development of Land (Eradication of Kans J Act. The object of this Act was to eradicate by tleep
tractorisation Kans weeds which are harmful to the productivity of land.
The Act provides for the taking possession of the land infested with kans,
after issuing notifications ·under s. 4 of the Act, and for the deep ploughing of the land by tractors. The expenses incurred by the Government
were to be apportioned among the owners in the area whose lands had
been occupied an(i ploughed.
Demands were made on the respondents
whose lands were occupied and tractorised to pay the costs so apportioned.
Thereupon they filed writ petitions before the Judicial Commissioner challenging the legality of the Act "' well as the legality of the
levy, even assuming that the Act was valid. The Judicial Commissioner
allowed the petitions. Thereupon the State appealed to this Court with
certificate ol' fitness under Art. 133(l)(c) of the Constitution.
In the appeals before this Court the same contentions as those which
were raised before the Judicial Commisisoner were canvassed.
196J
Stot1 of Bhopal
.,.
Champa Lal
SUPREME COURT REPORTS
Held.
(i) The Act contains no provision for the person interested::
having an opportunity to esta&lish that the particular land in which he
was interested was not kans infested and therefore did not stand in need
of any eradication operation. Section 4( 1) read in conjunction with the
power contained in s. 4( 4) coupled with the absence of any provision•
for entertaining objections would, in the circumstances of there being
admittedly patches of land in the same tehsil which ha'd been cleared at
least in 1941 must be
characterised as
arbitrary and imposing
an,
unreasonable restriction on the right to hold and enjoy property within·
Art. 19(1 )(f) of the Constitution.
(ii) The possession of the Reclamation Officer is exclusive and amounts.
to taking possession within Art. 31(2). The shortness of the duration
during which the owner is deprived of his possession has no relevancy to-
),
the question whether ther~ has been a taking of possession of lan'd by
the State. If the duration is short the compensation payable might be
small. The exemption from payment of land revenue (luring the period
of occupation by the State as provided in the proviso to s. 6(2) of the
Act cannot in any sense be treated as compensation for the deprivation
of possession, it only
aUeviates his loss. Section 4( 1)
read
v.·ith
s. 6(1)(h) is unconstitutional as violative of Art. 31(2).
(iii) Section 7 of the Act is mandatory and that as admittedly there
was nO compliance \vith it no lawful demand could be made for the
contribution payable by any landhofder by the Central Government or
~
by the State Government at the instance of the Central Uovernn1ent
without re1.:oursc to the machinery provided by s. 7. The notice-; of
den1and were therefore illegal.
(iv) The extension o( the l\1adhya
PraJ.c~h Act to the Bhopal area.
would be of no avrtil to the State because the Act was brought intoforce prospectively
and not retrospe<:tively.
If therefore the demand
when 111ad.:: was illegal or invalid it cannot he sustained on the basis of
the
~ladhya Pra'desh Act.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeals
Nos. 379 to 383 of 1959.
Appeals from the judgment and orders of the ex-Judicial
>
Commissioner's court, Bhopal (Now Madhya Pradesh High
Court) dated April 9, 30, 1956, in Misc. Civil Case Nos. 18
of 1954 and 21 and 35 of 1955, dated April 9. 27. 1956 in
Misc. Civil Case No. 25 of 1955 and dated April 9, 17. 1956
in Misc. Civil Case No. 49 of 1955.
8. Sen, and /. N. Shroff, for the appellants.
M. C. Setalvad and M. S. Gupta, for
respondents
(in
C.A. No. 380 / 59).
K. K. Jain. for respondents in (C.A. Nos. 381-383/59.\
December 19, 1963.
The Judgment
of
the Court was
delivered by
6 S.C.R.
SUPREME COURT REPORTS
37
AYYANGAR J.-These five appeals which have been
I96J
consolidated for hearing, raise for consideration principal· Stat• ;;Bhopal
Jy two points:
....
C hllmpa Lill
( 1) the constitutional validity of the Bhopal Recla- A
-
1
•
•
yyanzar •
mat1on and Development of Lands (Eradication of Kans) Act, 1954 (Act XTII of 1954)
which will be hereafter referred to as the Act,
and
(2) whether the provisions of the Act, even if constitutionally valid, were complied with in the
case before us.
The Act the provisions of which we shall set out and
examine later, empowered the State Government to notify
.areas of the State as "Kans infested areas" 'and on such
notification officers of the State were enabled to enter on
the lands within
the
notified areas and conduct deep
ploughing tractorisation operation with a view to eradicate
the kans.
We might mention even here that Kans are a
species of weeds which infest large areas of land in
and
around the former State of Bhopal now forming part of
Madhya Pradesh.
The weeds are hardy,
quick growing,
rapidly expanding the area of their infestation and sap the
fertility from the soil and thus lead to very poor yield of
the land and if the growth is more extensive, practically
prevent any crops. The Act provided for the cost incurred
in these eradication operations being recovered from
the
farmers on whose lands the
tractorisation
was
effected.
Acting under the said law, considerable extents of land in
the former State of Bhopal were tractorised
and demands
were made on the owners of the lands for the payment of
the charges claimed as due. Five of these farmers on whom
these demands were made thereupon filed
petitions under
Art. 226 before the Judicial Commissioner, Bhopal challenging the constitutionality of the Act as well as the legality of the levy, even assuming the law to be valid, and
these petitions were allowed,
and
the learned Judicial
Commissioner holding the Act to be unconstitutional and
the levy illegal, granted the declaration
and mandamus
prayed for.
The appellants thereafter applied for and
obtained from the Judicial Commissioner certificates of
1963
State of Bhopal
••
Champa Lid
A11an1• J.
SUPREME COURT REPORTS
fitness under Art. 133(1) (c) and have preferred the appeals which are now before us.
We shall narrate a few facts which serve as a background to the enactment of the legislation now impugned,
and which would also throw some light on some of the
points urged by the respondents.
It was recognised as
early as the first decade of this century that without the
eradication of Kans there could be no improvement in the
return from the land in the Bhopal and surr<Junding areas.
The question was as to how this was to be accomplished.
With this end in view research was conducted by the
Imperial Council of Agricultural Research from
about
1940 onwards, and as a result it was concluded that the
only method of eradicating the pestilential wted was by
deep ploughing of the land with tractors w1'.ich would
reach a ·ufficient depth wherefrom the roots of
the weed
could "" pulled out and exposed and thus destnyed. This
conclusion ,,-as ac<:epted by the then Government of
Bhopal who between the years 1944-48 carried out experiments by tractorisatkm or deep
ploughing of lands in
several areas of the State.
The experiments denonstrated
that tractorisation wo-.ild
increase the outturn of crops.
This experimental ploughing was, however,
confined
to
particular villages and ~·reas in the State but the results
achieved in them showed that if done systematica.ly, deep
ploughing by iractors would help to eradicate the pest and
increase the yield from the land. In order to carry out this
purpose an Ordinance XXXVITI of 1949 was promulgated
on October 20, 1949 whose provisions were substantially
identical w;th 'hose con,ained in the Act which we
shall
presently read.
The nctifications now impugned defining
the areas to undergo tractorisation
(which
included in
them the places where the lands of the respcndents are
situated) were issued under this Ordinance. Simil.l'iy, the
notices demanding payment of sums from the respondents
whose validity is likewise challenged were also
issued
under it.
The Ordinance, however, it is now
ad·nitted,
was constitutionally incompetently promulgated and
had,
therefore, no legal validity.
All action,
however,
taken
under the Ordinance was validated by the Act and by its
-
6 S.C.R.
SUPREME COURT REPORTS
39
s. 17 "all acts done, notifications issued, authorisations,
1'63
inquiries made, duties assigned, notices
served,
or any Stall a/iii.opal
action taken with respect to or on account of eradication of
v.
kans during the period commencing October 20, 1949 and Cham/Hi L4I
ending with the date of the commencement of this Act etc.
Ayyangar /,
shall be as valid and operative as if they had been done,
issued, made, assigned, served or taken in accordance with
the law."
The validity of this provision which was upheld
by the Judicial Commissioner is not challenged before us
and therefore notwithstanding that the notifica.1ons which
will be referred to later were issued anterior to the enactment of the Act, that circumstance is immaterial for considering their effectiveness.
Before however, proceeding with the narration of the
facts and particularly with those touching the issue of the
impugned notifications and the notice of demand, we con·
sider it would be convenient to set out the relevant provisions of the Act, and in particular those whose constitutional
validity is challenged. It may be mentioned that the Act
received the assent of the President on Novemher 7, 1954
and was published in the State Gazette on November
25',
1954. Its preamble recit.!s that it was enacted "to provide
for the reclamation and <levelopment of lands by eradication of kans weed in certain areas of the State of Bhopal."
Section 2 contains the definitions and cl. ( c) defines a
'kans area' wherein eradication operations are to be con·
ducted under the provisions of the Act a3 meaning "the
area which the Government may, by
notification, declare
~
under sub-s. (I) of s. 4 to be an area infested with kans."
Section 3 empowers the Government to appoint a Reclamation Officer. Section 4 is one of the main provisions
whose validity is challenged and has, therefore, to
be set
out in full'
"4. ( 1) If the Government is of opinion that any
area is infested with kans, it may, by notification, declare such area, giving full particulars
thereof, to be a kans area for the purpose of
this Act.
(2) Such notification shall be a sufficient notice of
the fact stated therein to all persons holding
J96J
State of Bhopal
v.
Champa Lal
-
Ayysngar J,
SUPREME COURT REPORTS
[1964]
or having interest in the land comprised in
such area.
( 3) The Reclamation Officer shall give publicity to
the notification issued under sub-section
( 1 )
in such manner as he deems fit.
( 4) The Reclamation Officer may enter upon any
land in such area and take possession thereof
for such period as may be necessary for the
purpose of eradication of kans from such area
and carry on other ancillary subsidiary operations therein."
Section 5 provides for the constitution of a Reclamation Board-a provision to which we shall have occasion to
refer at a later stage. Section 6 deals with the consequences of a notification under s. 4 (1) and with the matters
which take place thereon and is thus intimately connected
with s. 4 and we shall therefore set it out in full :
"6. ( 1) On issue of a notification under sub-section
( 1) of section 4, the Reclamation Officer and
his subordinates and workmen, authorised by
him in this behalf, may, notwithstanding the
provisions of the Bhopal Land Revenue Act,
1932, (IV of 1932),-
( a) enter upon any land in the kans area for the
purpose of survey and any other ancillary purpose, and
(b) taken possession of the whole or any part of
the kans area and carry on
eradicating
and
other ancillary and subsidiary operations therein.
(2) No person shall use tbe land so
notified for
any purpose till such date as the Reclamation
Officer, after the completion of the
reclamation and demarcation operations,
may,
by
notification in the official Gazette. specify for
the restoration · of the 'ame to the
per~on
who was, on the date of taking over, ia la'.'. ful
...
'
•
6 S.C.R.
SUPREME COURT REPORTS
-41
possession of the same or was entitled to such
1963
possession:
State of Bhopal
Y.
Provided that no revenue shall be charged from a Champa Lal
person whose land has been taken over by the Ayy•ngar J.
Reclamation Officer under this section in respect of the period during which the land has so
remained in the possession of the said Officer.
( 3) For the purposes of this section, any reference
to the person entitled to take possession of land
notified above, shall, if he is dead. be deemed
to include a reference
to
his successors
in
interest.
(4) The notification mentioned m sub-section (2),
shall be final, and full discharge of the Government from all liability
in
respect of
such
delivery of possession, and the possession of the
land shall, on the date specified in this behalf, be
deemed to have been delivered by the Government to the person entitled to it."
Section 7 provides the machin~ry for ascertaining the
share of the cost which has to be paid by persons having
interest in the land who have benefited by the tractorisation
and it is the procedure contained in this section that is stated
to have been departed from in making the demands on the
respondents by reason of which the respondents successfully
resisted the demands made on them. Section 7 runs:
"7. (1) The total expenditure incurred, or to be
incurred, by the Government on eradicating or
other ancillary or subsidiary operations in the
kans area, shall be equitably apportioned
by
the Reclamation Board between
the
several
holders of, or persons having interest in the
lands comprised in the Kans area.
( 2) Every person holding, or having interest in the
land in which eradicating or other ancillary, or
subsidiary operations have been carried out or
intended to be carried 0n, shall be liable to pay
the costs of such operations on his land.
1163
Sl4t1 of Bhopal
....
Champa Lal
Ar1angar J.
SUPREME COURT REPORTS
[1964}
( 3) The Reclamation Officer shall fix: the amount
of costs payahle by each holder or other persoo.
It
having interest in the land comprised in the kans
area. The amount so fued shall be charged on
the land to which it relates, and shall not be called in question in any suit or other legal proceedinp.
( 4) The Reclamation Officer shall also determine
whether the amount so apportioned shall
be
paid by the person holding, or having interest
,
in the lavd in one lump sum or by such annual
instalments as he may fix for the amount.
( 5) The payment mentioned in sub-section
( 4),
may be made in cash or agricultural produce of
such land or both.
( 6) If the actual cost of the eradicating or other
subsidiary or ancillary operations ex:ceeds or
falls short of the amount to be payable by a
holder of, or other person having interest in,
the land, the difference shall be returned to, .Jr
recovered from, the person concerned, as
the
case may be."
The machinery for collection is contained in s. 8 and it is
enough to point out that it makes provision for the Recla:m1tion Officer serving on the person holding or having interest
in the land in which eradication operations have been carried
out a notice of demand which in the context would '1ean
such sum as has been determined under s. 7 and for the recovery of the said sum as an arrear of land revenue. Section 9 makes provision for the payment of compensation
and it is one of the sections of the Act which have been
struck down for unreasonableness. It enacts:
"9. ( 1) Any person may, within thirty day; from
the date of the taking over of the land under
section 6, apply to the Reclamation Board for
payment of compensation for destruction of or
damage to any plant, tree, building, hut or othec
.,.
structure in his land as a result of the eradicating operation.
..
•
6 S.C.R.
SUPREME COURT REPORTS
43
(2) On receipt of such application, the Reclamation
196.J
Board may make such inquiry as it deems fit, Stat• ;;jlj1wpat
and, if in its opinion, the payment _of comr,iensa-
·~La. 1
ti.
.
.
'fied 't
h
Champa
on 1s 1ust1
, 1 may grant sue
compensa_
tion as it deems fit.
Ayyangar /,
(3) The decision of the Reclamation Board shall
be final in all respects, and shall not be called
in question in any court of law." .
Though some of the other sections of the Act have been
dealt with and examined by the learned Judicial Commissioner, they do not bear materially on the points which have
been urged before us in the appeals and we do not therefore,
consider it necessary to refer to them.
To resume the narration of the facts leading to the filing
of these petitions, it would suffice to mention those relating
to any one of these petitions, as those of the others are substantially similar. We shall refer to the facts in Case 18 of
19:4 from which C.A. 379 of 1959 has arisen as illustrative
of the rest. On January 18, 1951 a notification was issued
by the C1'ief Commissioner under s. 4 ( 1) of the Ordinance
declaring all the villages in seven tehsils which were set out
in it as "Kans areas" and this was published in the Gazette
on January 27, 1951. This notification was amended by a
further notification dated May 30, 195 l by which all the
villages in two more tehsils were added to the original seven.
Among these newly added was Tehsil Huzur in which the
lands of the petitioners who number thirty, were situate.
Needless to add that this amendment was also published in
the Gazette.
Subsequently on November 21, 1952, there
was a notification stating inter a/ia that l 0 named villages
in Tehsil Huzur were being taken over for tractorisation
operations "during the ensuing season" and after this these
operations were conducted on the lands of the petitioners.
Thereafter on February 4, 1953, a
communication was
addressed by the Land Reclamation Officer, Bhopal to the
Tahsildar. Huzur among other Tahsils which read, to quote
the material passage:
"I forward herewith demand lists of villages of your
Tehsil in respect of the tractorisation charges
for the season 1951-52. Pending final decision
1963
:State of Bhopal
v.
Champa Lal
A.yyangar /,
44
SUPREME COURT REPORTS
regarding exact rates of bush clearance and
ploughing, it has been found advisable that collection may be made at the rate of Rs. 10,
per acre towards first instalment of the demand.
As soon as the rates are finalised intimation as
to the exact rate will be sent to you to adjust
the account likewise."
This was finalised at a later date on receipt of intimation
from the Government of India on August 12, 1953, but the
figure was modified slightly in March 1954 and again in
October, 19~4 by a revision to a lower figure but nothing
turns on the modifications, because the challenge in the petitions to the demand does not turn on the quantum of the
levy or its unreasonableness quoad the service ren~red.
When demands were made on the petitioners for the payment of the first instalment at Rs. 10 per acre they filed the
petition 18 of 1954 and sought relief primarily by way of:
(I) a declaration that the Ordinance and the Act which
repealed and re-enacted it with retrospective
effect
were
uncomtitutional and void, (2) a permanent injunction restraining the State and its authorities from enforcing the demands on them.
The petition also prayed for certain other
reliefs which were not granted and are no longer material.
The Judicial Commissioner substantially allowed the petition
and granted the principal reliefs sought and
hence
this
appeal. As stated earlier, the contents of the other petitions
are substantiallv the same, and all these five were dealt with
by a common judgment and so it is unnecessary to set them
out.
Four points were urged by Mr. Sen-learned counsel for
the appellant: (l) That the learned Judicial Commissioner
was wrong in holding that the principal and operative sections of the Act were unconstitutional and void. (2) that
the procedure prescribed by ss. 7 and 8 of the Act for enabling the demand to be made was sub;tantially complied with,
(3) that even if the Act be unconstitutional, still it must be
taken to have been validated by the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act. 1957 by
which the Madhya Pradesh Act, whose constitutional validity
was not open to challenge had been extended to the Bhopal
•
•
6 S.C.R.
SUPREME COURT REPORTS
45
area, ( 4) that in any event, having regard to the benefit
1963
•
;bat had been conferred on the farmers by the tractorisation State of Bhopal
"
•
operations, the charges which were demanded, could be Cha
v.
cecovered under s. 70 of the Indian Contract Act.
mpa Lal
We shall deal with these submissions in that order.
The first of the sections of the Act which has been held
unconstitutional is s. 4 (1). Under it, it would be seen. the
Government is empowered, by notification, to declare areas
as 'kans areas' "if it is of opinion that any area is infested
with kans". Two points were urged in support of the challenge to the validity of this provision and both of them have
been accepted by the learned Judicial Commissioner. They
were, first, that the provision constituted an excessive delegation of legislative power, and, secondly, that the
power
thus conferred was arbitrary and constituted an unreasonable
restriction on the right to hold and enjoy property and therefore violative of Arts. 14 and 19(1 l(t) of the Constituuon.
We agree with Mr. Sen that s. 4( 1) does not suffer from
the vice of excessive delegation of legislative ;:iowcr.
The
preamble and long title of the Act make it clear that
the
enactment is one "for the reclamation and development of
lands by the eradication of Kans weed in certain areas in
the State", the purpose being specified as the eradication
of kans in areas infested with it.
The legislative
policy
behind the provision is thus writ large, and what remains
and is left to the executive is to carry out that mandate and
give effect to the law so as to achieve the pmposes of the
Act.
'The areas infested' is manifestly not capable of legislative definition but must obviously be left to the executive
to determine having regard to the in:ensitv
of the weed
infestation and its distribution.
There is thus
legislative
guidance offered of the criteria which must be borne in mind
by the Government before any area is declared ~s a 'i:ans
area' and if the detennination of the particular area is left
to the executive it cannot be said to be ~ny delegation of
legislative power at all.
The second point, however. about the power confen d
being unreasonable in the context of the other provisions
of the Act deserves more serious consideration.
In this
connection it is necessary to notice certain admitted facts.
Ayyangar /.
196J
Stale of Bhopal
v.
Champa Lal
Ayyangar /.
SUPREME COURT REPORTS
[rgo4J
The notification under
s. 4(1) dated January 18, 1951,
read in conjunction with the addition made by a further notification dated May 30, 1951 already referred to, declared
all the villages in 9 tehsils which were named to be 'kans
areas'. It was the complaint of the respondents who were
the petitioners in the writ petitions that their lands were not
kans infested and that the notification was issued and the
subsequent proceedings thereunder taken without giving them
an opportunity of establishing that fact.
No doubt, it was
the case of the State. that this complaint was not correct and
that the lands were, in fact, kans infested. In .tins connection, however, it is necessary to refer to one fact which is a
matter of admission. Among the affidavits filed in support
of the written statement by the State was one by Syed Majid
Ali who had conducted previous experiments
under
the
Imperial Council of Agricultural Research and who was one
of those on whose recommendation it was
decided that
tractorisation was the best method of eradicating kans. He
stated in paragraph 9 of his affidavit:
"Before I started my experiments in the State of
Bhopal a statement showing kans infestation
tehsil-wise had already been prepared by the
State authorities and it is filed in the case. A
corresponding map was also prepared and that
is also filed in the case."
The map that was prepared then and which was filed in the
case showed the lands in the State divided into three groups
of areas dependent on the intensity of the kans infestation
and these three groups of areas were differently coloured.
The highest intensity comprised areas in which the infestation was 60 per cent, those between 40-60 per cent formed the second class, while those below 40 per cent formed
the last. A glance at the map which is part of the record
before us shows an uniform colouring throughout these three
groups of areas which is apt to ind;cate that in all the tehsils
which are included in any of these three groups there was
uniform infestation to the percentages indicated.
Mr. Sen
strongly relied on this map as establishing this.
But that
this is not a correct picture of the spread of infestation
appears to be made out by the statement prepared in July
•
·6 S.C.R.
SUPREME COURT REPORTS
47
1941 which is the document first referred to by Syed Majid
1961
Ali. In this statement which is marked as Ex. N / 4 the State State ofiii.opal
•
is divided into two districts-one western and the
other
"·
eastern-the former comprising 7 tehsils and the latter 11. Champa Lal
It gives a break-up of the occupied, and the unoccupied land, Ayyanglll' 1.
the area of each tehsil-wise, the area which has been cleared
•
'
of kans in each tehsil and the area still remaining similarly
infested. Taking the 1st of the tehsils which is included in
the notification dated January 18, 1951-Nasrullaganjit is seen from Ex. N/4 that of the occupied land 8478·86
acres were kans infested while 21016·03 acres were areas
which had been deared. It might not be clear from these
figures whether the areas cleared were merely some isolated
fields or larger contiguous patches, but one •thing is clear
that the entire tehsil, or rather the entire occupied land in
the tehsil was not kans infested as the map would indicate,
but there were considerable portions in which eradication
<Jperations had been carried out already, It is possible that
between the years 1941 when this statement was prepared
and January 1951 when the notification under s. 4(1) of
the Act was issued, lands which had once been cleared
might again have become infested but anyway
it would
show that before there was any interference with the right
of the farmers to their property they should have been given
an opportunity to prove to the satisfaction of the authorities
that their land was not kans infested and therefore did not
need tractorisation.
The provision contained
in s. 4 ( 4)
under which the Reclamation Officer is empowered to enter
upon any land in the area so declared under s. 4 ( 1) and
commence and complete eradication operations has also to
be taken into account in this context. If at least at the stage
when the Reclamation Officer selected the particular land
in which the eradication operation was to be
conducted
there was notice required to be given to the owner or the
<JCCupier, in order to give him an opportunity to establish
that notwithstanding his land being included in the notification under s. 4 (1) the particular land in which he was
interested was not kans infested and therefore did not stand
in need of any eradication operation, the provision in s. 4 ( 1)
would not have been open to serious challenge. But even
"I .at the second stage when the officer was empowered to select
1963
Stott oj Bhopal
v.
Ch•mpa Lal
.A.yyangar J.
SUPREME COURT REPORTS
the land for the purpose of giving effect to the provisions
of the Act and conduct tractorisation operations thereon, the
.
~
Act contains no provision for the persons interested having
such an opportunity.
We consider, therefore, that s. 4( 1}
read in conjunction with the power contained in s. 4( 4)
coupled with the absence of any provision for entertaining
objections would, in the circumstances of there being admittedly patches of land in the same tehsil which had been
cleared at least in 1941 must be characterised as arbitrary
and imposing an unrea5o.1Jable restriction on the right to hold
and enjoy property within Art. 19(l)(f). The operation of
the several sub-sections of s. 6 to which we shall immediately
make reference reinforces our conclusion as regards the unconstitutionality of the provisions of s. 4 ( 1 )
read
with
s. 4(4). Under s. 6(l)(b) immediately on the issue of a
notification under s. 4 ( 1) the Reclamation Officer is empowered to take possession of the whole or any part of "the
kans area" and "carry on eradicating and other ancillary and
subsidiary operations therein."
Now, in regard to this it was submitted that this provision under which the land-owner is deprived of the possession of his property is unconstitutional as violative of Art.
31 (2) as it originally stood before the 4th amendment. That
Article then ran:
.,
'
"No property, movable or immovable. . . . shall be
taken possession of or acquired for public purposes under any law authorising the taking of
such possession .... unless the law provides for
compensation for the property taken possession
•
of .... and either fixes, the amount of the compensation or specifies the principles on which
and the manner in which the compensation
is
to he determined and given."
The argument urged on behalf of the respondents and which
the learned Judicial Commissioner accepted was based on
the circumstance that no compensation was provided for
the taking possession by the State or an officer acting on its
behalf,
of the lands notified under s. 4 ( l) and ( 4).
Mr. Sen, however. submitted two answers to this objection.
~
The first was that the duration during which the owner was
"
..
6 S.C.R.
SUPREME COURT REPORTS
49
deprived of possession, if at all, was so short
as not to
1963
amount to "taking possession" within Art. 31 ( 2). This was Stat• otB/iofX'l
also presented in a slightly modified form by stating that
•·
there was in reality no taking of possession at all but that Cham~I
the Reclamation Officer merely entered on the land
and
Ayy4ngm: I.
carried out the tractorisation operation without disturbing
the possession of the owner.
The argument that the landowner is not disturbed in his possession by the tractorisation
operations and that he is not deprived of the same by the
operation of the Act, proceeds upon overlooking the provisions which directly point to possession of the land statutorily passing to the Reclamation authorities on the issue of
the notifications. Section 6(2) enacts a ban on the owner
using the land notified under s. 4 (I ) until there is in effect
a denotification of that iand by the Reclamation Officer and
the lawful possession of the land is restored to the owner.
In the circumstances, it is clear that the possession of the
Reclamation Officer is exclusive and amounts
to taking
possession within Art. 31 ( 2).
Nor is there any force in
the point about the shortness of the duration during which
the owner is deprived of possession or rather the period
during which the State through the Reclamation Officer is
in possession of the land. As regards this it might be pointed
out that the Act itself specifies no period of time within which
tho reclamation should be completed. Nor are we satisfied
that the mere fact that this duration is not considerable has
any materiality or relevance for considering whether there
has been a taking possession of the land by the State. If the
period during which the owner is deprived of possession be
short the compensation payable to him might be less but
that does not, in any manner, affect the reality of the dispossession or rather the taking of possession by the State
within the meaning of Art. 31 (2). We thus reach the position that there has been a taking possession by the State of
the immovable property of the owner within the Article.
The second submission related to the question which
arises whether "the law i;:irovides for compensation for the
property taken possession of", for it was not disputed that
if it did not, the law providing for the "taking" would be un·
constitutional. In regard to this Mr. Sen relied on the proviso to s. 6(2) as providing compensation. That proviso,
134-159 S.C.-4.
1963
State of Bhopal
v.
Champa Lal
Ayyangar J.
50
SUPREME COURT REPORTS
it would be recollected, enacted that during the period when
the land was in the possession of Government for the conduct of the eradication operation, no land revenue would be
charged to the land owner. Mr. Sen urged that there was in
Jaw an obligation cast upon the owner to pay land revenue
arid the foregoing of this payment during the period when
the owner was out of possession would, in the eye of law,
amount to compensation and therefore satisfied the requirements of Art. 31(2) as it originrlly stood. We consider this
wholly without substance.
In the first place, the framers of
the Act knew what compensation was and they made provision for compensation in s. 9 in respect of the injury suffered
by the owner. In the context of this provision and its language they could certainly not be treated as considering the
abstention from charging land revenue during the period
when the land was not available to the owner as compensation. Secondly, even a cursory examination would demonstrate the fallacy underlying this submission. If the exemption
from payment of land revenue should suffice as compensation for deprivation of possession for a time, it would follow
that for possession of property being taken for ever or say
for 99 years exemption from land revenue for that period
would suffice as compensation.
This would illustrate the
utter untenability of this argument. Normally speaking, land
revenue is charged on the basis thL, the owner is free under
the law to utilise the land for profitable use. When, therefore,
he is deprived of the opportunity of so utilising it, the State
exempts him from payment of the same.
This can in no
sense be treated as compensation for the deprivation of
possession. Besides, the theory of land revenue is that it
represents a proportion of the income which the owner derives from the land, and is in theory fixed on the basis of
allowing him some surplus over the State's share.
When
by deprivation of possession he is prevented from making
any income from the land, the exemption from payment of
land revenue, offers him no compensation, only it alleviates
his loss.
In this view it is unnecessary for us to consider
the question whether under Art. 31(2) as it stood at the
relevant date, the compensation even if provided need be
adequate and how far the adequacy could be justiciable. We
have, therefore, no hesitation in saying that s. 4(1) read
y
•
,,
t> S.C.l<.
SUPREME COURT REPORT~
51
with s. 6(l)(b) is unconstitutional as violative or Art. 31
(2).
State of Bhopal
The learned Judicial Commissioner bas also struck down Ch
vi:,;,1
s. 6(2) as unconstitutional and Mr. Sen did not question the
amp_a _
correctness of this conclusion. There are other minor points
Ayyangar J.
about s. 6 which also have been held to render that section
unconstitutional but to these it is not necessary to refer in
•
the v.iew that we have expressed about the provisions we have
discussed.
If the appellant State is unable to sustain the
validity of SS· 4 and 6, which are the key provisions of the
Act, Mr. Sen conceded that it would not be necessary to
consider the
validity
of the
other
provision and we
accordingly refrain from doing so.
This takes us to the second principal ground on which
the respondents have succeeded, viz., that even if the Act be
valid, the provisions of s. 7 were not complied with and as
a result the demand made on the respondents for payment
of an instalment of the tractorisation charges was unauthorised and illegal. It was Mr. Sen's contention that the learned Judicial Commissioner was in error in upholding this contention. The point arises this way. Section 5 makes provision for the constitution of a Reclamation Board. The Board
consisted at the relevant date of the Development Commissioner as the Chairman, six non-official members who were
members of the Legislative Assembly of the State besides
five other officials with the Director, Land Reclamation as
the Secretary of that Board. Section 7 entrusts this Board
with the duty first of ascertaining the total expenditure incurred, or to be incurred, and then to equitably apportion it
"
among those land-owners on whose lands eradication operations have been or would be conducted. Now, in the present
case the facts were that the Central Government incurred
the expenditure in the first instance by utilising the Central
Tractor Organisation-a body set up by the Central Government and then intimated to the State Government both
the total amount which they had expended and which was
repayable to them by the State, as well as the manner in
which the amount thus recoverable from the State was to be
allocated among the several land-holders. It is
common
~ ground that the Reclamation Board newr met and consequently neither computed the total expenditure incurred or
1963
State of Bhopal
v.
Champa Lal
Ayyangar I.
52
SUPREME COURT REPORTS
[1964]
to be incurred for the eradication operations, .'!or
did it
make the allocation among the holders of the lands en
which eradication operations were conducted. After refer-
~
ring to these features the respondents pointed olrt in their
petitions that, without the requirements of s. 7 being satisfied, they were informed of the contents of a letter dated
October 29, 1954 from an Under Secretary ·to the Goverrunent of India to the Secretary to the Government of
Bhopal-Development Department, in which the amount t0
be recovered from the land-owners for the deep ploughing
of their lands was mentioned, "".hich amount, the revenue
officials of the State were directed to recover.
It is now
admitted that this is the basis on which the impugned
demands were made on the respondents.
The learned
Judicial Commissioner held that the terms of s. 7
were
mandatory and that unless the mind of the Reclamation
Board was brought to bear on the question, and the Board
computed the total expenditure as well a~ the proper allocation of this sum among the several land-owners no lawful
demand could be made under s. 8, nor could the same be
recovered from the respondents. We find ourselves in entire
agreement with the learned Judicial Commissioner in holding ( 1 ) that the procedure prescribed by s.