HARIPADA MAZUMDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal arises out of an application under Art. 226 of the Constitution challenging the validity of acquisition of several plots of land under the West Bengal Land Development and Planning Act, 1948 (hereinafter referred to as the Act). The appellants claimed to be refuses who had migrated to India in 1947 from what was previously known as East Pakistan. They claimed that they purchased various plots of land in Village Hijalpukuria, District 24 Harganas and to have been in possession thereof when a notification under Section 4 of the Act was published in the Gazette on August 2, 1956, declaring several plots of land, including those in the possession of the appellants, as "notified area." The appellants made a representation to the Land Acquisition Collector, 24 Parganas, on October 4, 1956, to the effect that they had migrated from the District of Chittagong on account of circumstances beyond their control and could not be evicted from the said plots. They admit that a notice under Section 4-A of the Act was served requiring them to attend at the hearing of their objection on the spot.

(2.) Aggrieved by the proceedings under the Act the appellants obtained a Rule Nisi on a writ petition which was discharged by a judgment and order dated January 22, 1960, against which this appeal has been preferred.

(3.) Appearing for the appellants Mr. A. K. Dutt pressed only one point before us, viz., that the proviso to Section 5 of the Act was introduced into the Act by amendment on September 21, 1955, after the fourth amendment of the Constitution on April 27, 1955 and, therefore, the amendment was not protected by Article 31-B of the Constitution. It was argued that the 9th Schedule "to the Constitution was inserted by the first amendment of the Constitution, when the Schedule contained only 13 statutes, and the West Bengal Land Development and Planning Act, 1948 was not one of these statutes. By the fourth amendment of the Constitution which came into force on April 27, 1955. 7 more statutes were added to the Schedule, including the said Act. It was argued that at the time when the said Act was inserted in the 9th Schedule on April 27, 1955 the proviso to Section 5 of the Act was not there and therefore, the proviso introduced by the amendment on September 21, 1955 was not entitled to protection of Article 31 B. In other words, it was contended that it was open to the appellant to challenge the vires of the proviso on the ground that it was violative of Articles 19 (1) (f) and 14 of the Constitution. In support of this contention reliance was placed by Mr. Dutt firstly on a decision of the Supreme Court - Ramanlal Gulabchand Shah v. State of Gujarat. In that case it was held that Article 31-B no doubt gave protection to the statutes listed in Schedule 9, but an amendment of a statute so listed, made after the inclusion of the statute in the Schedule was not entitled to the protection, as it would have the indirect effect of amending the original Schedule 9 by including something in it which was not there previously, and that this was beyond the competence of the State legislature. Reliance was next placed by Mr. Dutt on another decision of the Supreme Court Sri Ram Ram Narain Medhi v. State of Bombay, in which it was held that future amendments made after a statute was listed in the 9th Schedule had to be teated in the light of the provisions in the Constitution and were not saved by Article 31-B and also that Article 31-B envisaged that the competent legislature would have the power to repeal or to amend the Acts mentioned in Schedule 9 and if any such amendment was ever made the vires of that would have to be tested.