CHABIRAN BIBI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this Rule which arises on application under Article 227 of the Constitution, the validity of a proceeding under Section 44 (2a) of the West Bengal Estates Acquisition Act is in question. The proceeding was started on January 22, 1970 by an Assistant Settlement Officer apparently on his own motion. The time limit for initiating a proceeding under Section 44 (2a) by an Officer of its own motion was at the relevant time 15 years from the date of final publication of the record-of-rights. West Bengal Estates Acquisition Act originally did not contain Section 44 (2a). This provision was introduced in 1958 by West Bengal Estates Acquisition (2nd Amendment) Act, 1957 (West Bengal Act XXV of 1957) when the time limit for initiating a proceeding under the Act was six months. Thereafter this time limit was extended by different Acts amending the section. In the year 1963 the time for starting a suo motu (proceeding was extended upto nine years 'by the West Bengal Estates Acquisition (Amendment) Act, 1963 (West Bengal Act XXII of 1963). Till then all the amending Acts extending the time limit had received the assent of the President. In 1967 'by the West Bengal Estates Acquisition Act (Amendment Act of 1967) (West Bengal Act IX of 1967) the time for starting a proceeding under the section by the officer of its own motion was extended upto 12 years. It appears that the amending Act of 1967 did not receive the assent of the President. Thereafter time was again extended to 15 years by the West Bengal Estates Acquisition (Amendment) Act 1969 (West Bengal Act XXXI of 1969). This Amendment Act, however, received the assent of President. As stated already, the impugned proceeding was started when Section 44 (2a) stood as amended by the Amendment Act of 1969.

(2.) The West Bengal Estates Acquisition Act was included in the Ninth Schedule and as such the provisions of the Act, as they stood on the date the Act was included in the schedule, enjoy immunity from attack on the ground that they are inconsistent with or take away or abridge any of the fundamental rights under Article 31-B of the Constitution. The amending Acts of 1967 and 1969 were passed after the parent Act was introduced in the Ninth Schedule.

(3.) On behalf of the petitioner Mr. Nirendra Krishna Mitra, learned advocate, contended that the Amendment Act of 1967 not having received the assent of the President was open to challenge on the ground that it abridged the rights conferred by Article 19 and Article 31 of the Constitution in view of the first proviso to Article 31-A of the Constitution He argued that though the Amendment Act of 1969 had received the assent of President, it was not possible to give effect to the provisions of the Amendment Act of 1969 as the earlier Act which it sought to amend, viz., Amendment Act of 1967, had not received the assent of the President and was void as it infringed the fundamental right to hold property. This argument was built on the first proviso to Article 31-A, Article 31-A so far as it is relevant for the present purpose is as follows:--