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PETITIONER: STATE OF BHOPAL AND ORS.

       Vs.

RESPONDENT: CHAMPALAL AND ORS.

DATE OF JUDGMENT: 19/12/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1965 AIR  124            1964 SCR  (6)  35  CITATOR INFO :  RF         1968 SC1344  (8)

ACT: Bhopal  Reclamation and Development of Land (Eradication  of Kans)  Act  (Bhopal  XIII  of 1954) ss.  4,  7-If  s.  4  is violative of Art. 19(1)(f) of the Constitution-Possession by Reclamation  officer-If taking possession within Art.  31(2) of the Constitution-Demand for contribution Legality.

HEADNOTE: The  respondents are owners of agricultural land in  Bhopal. Their lands were taken possession of by the appellant  under a  notification  under s. 4 of the  Bhopal  Reclamation  and Development  of Land (Eradication of Kans) Act.  The  object of  this Act was to eradicate by ’deep  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  and  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 as 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 of  fitness  under Art. 133(1)(c) of the Constitution. In  the  appeals before this Court the same  contentions  as those  which  were raised before the  Judicial  Commisisoner were canvassed. 36 Held.  (i)  The  Act contains no provision  for  the  person interested  having  an  opportunity to  establish  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

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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  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 there has been a taking of possession of land by the  State. If  the duration is short the compensation payable might  be small.   The exemption from payment of land revenue  ’during 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 alleviates  his loss.  Section 4(1) read with  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 with it no lawful  demand could be made for the contribution payable by any landhorder by the Central Government or by the State Government at  the instance  of the Central Government without recourse to  the machinery  provided  by  s. 7. The notices  of  demand  were therefore illegal. (iv) The  extension of the Madhya Pradesh Act to the  Bhopal area  would be of no avail to the State because the Act  was brought  into force prospectively and  not  retrospectively. If therefore the demand when made was illegal or invalid  it cannot be sustained on the basis of the Madhya Pradesh Act.

JUDGMENT: 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.  13  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. B.   Sen, and I. N. Shroff, for the appellants. M.   C.  Setalvad and M. S. Gupta, for respondents (in  C.A. No. 380/59). K.   K. fain, for respondents in (C.A. Nos. 381-383/59.) December 19, 1963.  The Judgment of the Court was  delivered by 37 AYYANGAR J.-These five appeals which have been  consolidated for hearing, raise for consideration principally two points:               (1)   the   constitutional  validity  of   the               Bhopal  Reclamation and Development  of  Lands               (Eradication  of Kans) Act, 1954 (Act XIII  of               1954)  which will be hereafter referred to  as               the Apt, 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

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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 38 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 surrounding 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 weed was by deep ploughing of the land with tractors which would reach a sufficient depth wherefrom  the roots  of the weed could be pulled out and exposed and  thus destroyed.   This  conclusion  was  accepted  by  the   then Government  of Bhopal who between the years 1944-48  carried out experiments by tractorisation or deep ploughing of lands in several areas of the State.  The experiments demonstrated that  tractorisation  would increase the outturn  of  crops. This  experimental  ploughing  was,  however,  confined   to particular  villages and areas in the State but the  results achieved  in them showed that if done  systematically,  deep ploughing  by tractors would help to eradicate the pest  and increase  the  yield from the land.  In order to  carry  out this purpose an Ordinance XXXVIII of 1949 was promulgated on October   20,  1949  whose  provisions  were   substantially identical  with  those contained in the Act which  we  shall presently read.  The notifications now impugned defining the areas to undergo tractorisation (which included in them  the places where the lands of the respondents are situated) were issued   under  this  Ordinance.   Similarly,  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   admitted,   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                              39

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s.   17    "all    acts    done,    notifications    issued, authorisations,  inquiries  made, duties  assigned,  notices served, or any action taken with respect to or on account of eradication of kans during the period commencing October 20, 1949  and ending with the date of the commencement  of  this Act etc. 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  notifications 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 consider 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 November 7, 1954 and was  published  in the State Gazette on November  25,  1954. Its preamble recites that it was enacted "to provide for the reclamation and development 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 conducted under the provisions  of  the  Act  as meaning  "the  area  which  the Government may, by notification, declare under sub-s. (1) 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               40               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  k ans  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

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             Land Revenue Act, 1932, (TV 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 the 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 same to the               person who was, on the date of taking over, in               lawful               41               possession of the same or was entitled to such               possession:               Provided that no revenue shall be charged from               a person whose land has been taken over by the               Reclamation Officer under this section in res-               pect  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  in   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 machinery 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  on,               shall  be  liable  to pay the  costs  of  such               operations on his land.               42               (3)   The  Reclamation officer shall  fix  the               amount  of  costs payable by  each  holder  or               other  person  having  interest  in  the  land               comprised  in the kansa area.  The  amount  so               fixed shall be charged on the land to which it               relates,  and shall not be called in  question

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             in any suit or other legal proceedings.               (4)   The   Reclamation  Officer  shall   also               determine  whether the amount  so  apportioned               shall be paid by the person holding, or having               interest  in  the land 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               exceeds  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,  or 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 Reclama- tion  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  mean 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  days                             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-other structure in his  land               as a result of the eradicating operation.               43               (2)   On  receipt  of  such  application,  the               Reclamation Board may make such inquiry as  it               deems fit, and, if in its opinion, the payment               of  compensation  is justified, it  may  grant               such compensation as it deems fit.               (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 1954 from which C.A. 379 of  1959  has arisen  as illustrative of the rest.  On January 18, 1951  a notification  was issued by the Chief 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, 1951 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

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on November 21, 1952, there was a notification stating inter alia that 10 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               44               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 b e 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,  1954 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  rendered. 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: (1)  a  declaration  that the Ordinance and  the  Act  which repealed  and re-enacted it with retrospective  effect  were unconstitutional  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  substantially 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:  (1 ) 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 substantially  complied  with,(3) that  even if the Act be unconstitutional, still it must  be taken  to  have  been validated by the  Madhya  Pradesh  Re- clamation 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 45 area,  (4) that in any event, having regard to  the  benefit that had been conferred on the farmers by the tractorisation operations,  the  charges  which  were  demanded,  could  be recovered under s. 70 of the Indian Contract Act. 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 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

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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 ) (f) of the Constitution.  We agree with Mr.  Sen that  s.  4 (1) does not suffer from the vice  of  excessive delegation  of  legislative power.  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 purposes ’of the Act. ’The  areas  infested’ is manifestly not capable  of  legis- lative  definition  but  must  obviously  be  left  to   the executive to determine having regard to the intensity 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 as a ’kans area’ and if the determination of the  particular area  is left to the executive it cannot be said to  be  any delegation of legislative power at all. The  second point, however, about the power conferred  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. 46 The notification under s. 4(1) dated January 18, 1951,  read in  conjunction  with the addition made by a  further  noti- fication  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 this  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  infesta- tion  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

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before us shows an uniform colouring throughout these  three groups  of  areas which is apt to indicate 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 47 1941  which is the document first referred to by Syed  Majid Ali.   In  this statement which is marked as  Ex.   N/4  the State  is  divided into two districts-one  western  and  the other eastern-the former comprising 7 tehsils and the latter ll.  It gives a break-up of the occupied and the  unoccupied land, 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  2101603  acres were  areas which had been cleared.  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 operations 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 occupier, 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 at the second stage when the officer was empowered to select 48 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  bead 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).  The operation  of the several sub-sections of s. 6 to  which  we shall  immediately make reference reinforces our  conclusion

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as  regards the unconstitutionality of the provisions of  s. 4(1)  read with, s. 4(4).  Under s. 6(1)(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  be  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(1) and  (4).   Mr. Sen, however, submitted two answers to this objection.   The first was that the duration during which the owner was 49 deprived  of possession, if at all, was so short as  not  to amount to "taking possession" within Art. 31 (2).  This  was ,also presented in a slightly modified form by stating  that there was in reality no taking of possession at all but that the  Reclamation  Officer  merely entered on  the  land  and carried out the tractorisation operation without  disturbing the  possession of the owner.  The argument that  the  land- owner   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(1)  until there  is  in effect a renotification of that  land  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  the  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  dis- possession  or rather the taking of possession by the  State within  the meaning of Art. 31(2).  We thus reach the  posi- tion that there has been a taking possession by the State of the immovable property of the owner within the Article.

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The  second submission related to the question which  arises whether "the law provides 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. 50 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 law  an obligation cast upon the owner to pay  land  revenue and 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 originally stood.   We  consider  this, wholly  without substance.  In the first place, the  framers of  the Act knew what compensation was and they made  provi- sion  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 that 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 51 with s. 6(1)(b) is unconstitutional as violative of Art.  31 (2). The  learned Judicial Commissioner has also struck  down  s. 6(2)  as unconstitutional and Mr. Sen did not  question  the correctness  of  this  conclusion.  There  are  other  minor points  about s. 6 which also have been held to render  that section unconstitutional but to these it is not necessary to refer  in  the  view  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

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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  installment of the tractorisation charges  was  unautho- rised  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 never  met  and  consequently  neither  computed  the  total expenditure incurred or 52 to  be incurred for the eradication operations, nor  did  it make the allocation among the holders of the lands -on which eradication  operations were conducted.  After referring  to these   features  the  respondents  pointed  out  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 Government  of India to the Secretary to the  Government  of Bhopal-Development  Department,  in which the amount  to  be recovered  from  the land-owners for the deep  ploughing  of their  lands  was  mentioned,  which  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 as 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. 7 is mandatory and (2)  that  as admittedly there was no compliance with it no lawful  demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at  the instance  of the Central Government without recourse to  the machinery  provided  by s. 7. The notices  of  demand  were, therefore, properly quashed as illegal. It is only necessary to add that the validity of these noti- ces  of demand would arise only in the event of the  crucial provisions of the Act-s. 4 and s. 6-being valid and in  view of our conclusion as regards the constitutional validity  of those  provisions,  even in the event of the terms of  s.  7 being complied with there could be no lawful demand made  on the respondents.

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There  remain two minor points which were urged by  Mr.  Sen but  neither  of these need detain us long.   The  first  of these  was  the effect on the present demand of  the  Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 53 1937.  By  this enactment the Madhya Pradesh  Act  which  is somewhat  analogous  to but not identical with the  Act  now under  consideration was extended to the Bhopal  area.   The argument of Mr. Sen was that by virtue of this extension  of the Madhya Pradesh Act, even if the Bhopal Act were invalid, the demand made could be iustifiel as made under the  Madhya Pradesh  Act.  But the extension of the Act, in the  present case,  is of no avail to the appellant because that Act  was brought  into  force  only  prospectively  and  not   retro- spectively.  If, therefore, the demand when made was illegal or  invalid  it  cannot be sustained on  the  basis  of  the Madhava   Pradesh   Act.   In  the  circumstances,   it   is unnecessary for us to consider the provisions of the  Madhya Pradesh  Act  to find out how far,  if  retrospective,  they would affect the validity of the demand. The  last of the points urged was that even if the  Act  was invalid  and  the demand could not be justified as  a  legal demand having regard to the terms of s. 7, still as eradica- tion  operations  which are beneficial in their  nature  had been  conducted  on the lands of the respondents  which  had derived benefit therefrom, lands which the respondents still retained, the provisions of s. 70 of the Indian Contract Act were  attracted  and that on the basis of a  quasi  contract which  that section postulates, the claim  for  compensation might be sustained.  This raises larger questions for  which there  might  be  sufficient answers, but  in  view  of  the circumstances  that it was not pleaded as a defence  to  the writ  petitions  before the Judicial  Commissioner  nor  put forward  in  arguments  before him, nor in  the  grounds  of appeal  or even in the statement of the case filed  in  this Court,  we  have  not thought it proper  to  permit  learned counsel to urge the ground at this stage. The facts of the other appeals being substantially  similar, and the points arising in them being identical. they do  not require  to be dealt with separately.  What we  have  stated regarding  Civil Appeal 379 of 1959 would equally  apply  to them. The  appeals fail and are dismissed with  costs-one  hearing fee, Appeals dismissed. 54