State of Bhopal and Ors vs Champalal and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 379 to 383 of 1959

Decision Date: 19 December 1963

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, K.N. Wanchoo, Raghubar Dayal, J.R. Mudholkar

In this matter, the Supreme Court of India considered an appeal filed by the State of Bhopal and other respondents against Champalal and other petitioners. The judgment was delivered on 19 December 1963 and was authored by Justice N. Rajagopala Ayyangar, who sat on a bench that also included Justices Bhuvneshwar P. Sinha, K. N. Wanchoo, Raghubar Dayal and J. R. Mudholkar. The case was reported in the 1965 All India Reporter at page 124 and in the 1964 Supplementary Criminology Reports at volume 6, page 35, with a citator reference to 1968 SC 1344. The dispute arose under the Bhopal Reclamation and Development of Land (Eradication of Kans) Act, Bhopal XIII of 1954, specifically sections 4 and 7. The respondents were owners of agricultural land in the Bhopal region whose plots had been declared infested with Kans weeds, which the legislation sought to eradicate by deep tractorisation and ploughing. Under section 4 of the Act, the State, through a reclamation officer, issued a notification taking possession of the declared infested lands and proceeded with deep ploughing using tractors. The costs incurred by the Government for this operation were to be shared proportionately among all landowners whose property had been occupied and cultivated. After the occupation, the State issued notices demanding that the respondents contribute their share of the expenses. The respondents contested both the validity of the Act and the legality of the levy by filing writ petitions before the Judicial Commissioner. Even if the Act were presumed valid, the petitioners argued that the levy was unlawful. The Judicial Commissioner allowed the writ petitions, finding the Act or the levy defective. Consequently, the State appealed to the Supreme Court, obtaining a certificate of fitness under Article 133(1)(c) of the Constitution. The appeal presented the same arguments that had been raised before the Judicial Commissioner, challenging the procedural and substantive aspects of the legislation and the contribution demand.

The Court held that the Act was constitutionally defective on two principal grounds. First, the legislation provided no mechanism for an interested landowner to prove that his land was not infested with Kans and therefore did not require eradication. Section 4(1), read together with the power in section 4(4), and the complete absence of any provision for hearing objections, rendered the process arbitrary. This arbitrariness, the Court observed, imposed an unreasonable restriction on the right to hold and enjoy property protected by Article 19(1)(f) of the Constitution, especially since there were known patches of land in the same tehsil that had already been cleared as early as 1941. Second, the Court determined that the possession taken by the reclamation officer was an exclusive possession that fell squarely within the meaning of a taking contemplated by Article 31(2) of the Constitution. The duration of the possession, however brief, was irrelevant to the existence of a taking; the mere fact of depriving the owner of possession satisfied the constitutional test. Accordingly, the Court concluded that both the procedure for taking possession and the subsequent demand for contribution were unconstitutional, rendering the statutory scheme invalid.

The Court observed that when the State occupies land, the length of occupation does not determine whether a taking of possession has occurred; even a brief occupation amounts to a taking by the State. Although a short period might result in a modest compensation amount, the exemption from land‑revenue payment during the State’s occupation, as stated in the proviso to section 6(2) of the Act, cannot be regarded as compensation for the loss of possession; it merely mitigates the owner’s loss. Consequently, the combination of section 4(1) with section 6(1)(h) was held to be unconstitutional because it violated article 31(2) of the Constitution. The Court further stated that section 7 of the Act is a mandatory provision, and because there was no compliance with this requirement, no lawful demand could be made for any contribution payable by a landholder either by the Central Government or by the State Government acting on behalf of the Centre without using the mechanism prescribed in section 7. Accordingly, the notices of demand issued under the Act were declared illegal. The Court also noted that extending the Madhya Pradesh Act to the Bhopal area would not benefit the State, since the Act was enacted to apply only prospectively and not retrospectively; therefore, an illegal or invalid demand could not be upheld by relying on the Madhya Pradesh Act. The judgment then set out the civil appellate jurisdiction of the case, identifying civil appeals numbered 379 to 383 of 1959, which were appealed from the ex‑Judicial Commissioner’s orders dated variously in April 1956. Counsel for the appellants and respondents were listed, and the date of the judgment, 19 December 1963, was recorded. The judgment, delivered by Justice Ayyangar, explained that the five consolidated appeals raised two principal issues: first, the constitutional validity of the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954, and second, whether the Act’s provisions, even if constitutionally valid, had been complied with in the present case. The Act, whose provisions would be detailed later, empowered the State Government to designate areas as “Kans‑infested” and authorized state officers to enter those lands and conduct deep‑ploughing and tractorisation operations aimed at eradicating the Kans. The Court briefly described Kans as a species of weed that infests extensive tracts of land in and around the former State of Bhopal, now part of Madhya Pradesh, noting that these weeds are hardy, fast‑growing, expand rapidly, deplete soil fertility, and consequently lead to very poor agricultural yields, and when their growth is extensive they can practically prevent any crop cultivation.

In this case the Court explained that the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954 authorized the State Government to designate certain areas as “Kans‑infested” and to permit officers to enter those lands and carry out deep‑ploughing tractor operations for the purpose of destroying the weed. The Act also provided that the expenses incurred in carrying out those eradication operations could be recovered from the owners of the lands on which the tractorisation was performed. Acting under this statute, large tracts of land in the former State of Bhopal were tractorised and the State issued demands for payment of the charges to the landowners. Five of the affected farmers filed petitions under Article 226 before the Judicial Commissioner of Bhopal, challenging both the constitutional validity of the Act and, assuming the Act to be valid, the legality of the levy. The Judicial Commissioner allowed the petitions, held the Act to be unconstitutional and the levy to be illegal, and consequently granted the declarations and the writ of mandamus that had been prayed for. The appellants subsequently obtained certificates of fitness under Article 133(1)(c) from the Judicial Commissioner and appealed the decisions, bringing the matter before this Court.

The Court then set out a factual backdrop to the legislation that is now under challenge. It noted that as early as the first decade of the twentieth century it had been recognised that without eradicating Kans—an aggressive weed that spreads rapidly, depletes soil fertility and can prevent any crop cultivation—there could be no improvement in agricultural returns in Bhopal and the surrounding regions. To determine an effective method of eradication, the Imperial Council of Agricultural Research conducted studies from about 1940 onward and concluded that the only viable technique was deep ploughing with tractors capable of reaching a depth sufficient to uproot and destroy the weed’s roots. The Government of Bhopal accepted this conclusion and, between 1944 and 1948, carried out experimental tractorisation in several villages. Those experiments showed that deep‑ploughing increased crop yields. Although the experiments were confined to selected areas, the results suggested that systematic tractorisation across the State would eradicate Kans and enhance agricultural productivity. Consequently, an Ordinance (XXXVIII of 1949) was promulgated on 20 October 1949 with provisions substantially identical to those later incorporated in the 1954 Act. Under that Ordinance, the State issued notifications defining the areas to be subjected to tractorisation, including the lands of the respondents, and also issued notices demanding payment of the associated costs. The Ordinance has since been admitted to have been promulgated without constitutional competence and therefore lacked legal validity, but the Court observed that all actions taken under the Ordinance were retrospectively validated by the 1954 Act.

Section 17 of the Act stipulates that every act performed, every notification issued, every authorisation granted, every inquiry made, every duty assigned, every notice served, or any other action taken in connection with the eradication of kans during the period beginning on 20 October 1949 and ending on the date the Act commenced shall be deemed to have the same validity and effect as if such act, notification, authorisation, inquiry, duty, notice or other action had been undertaken in accordance with the law. The Court noted that this provision had been upheld by the Judicial Commissioner and that no party before this Court had challenged its validity. Consequently, the Court held that the fact that the notifications to be considered later were issued before the Act came into force does not affect their legal effectiveness.

The Court then indicated that before proceeding with a detailed narration of the facts, especially those relating to the impugned notifications and the notice of demand, it would be appropriate to set out the relevant provisions of the Act, focusing particularly on the provisions whose constitutional validity was being questioned. The Court observed that the Act received the President’s assent on 7 November 1954 and was formally published in the State Gazette on 25 November 1954. The preamble of the Act declares 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 of the Act contains definitions, and clause (c) defines the expression “kans area” as the area that the Government may, by notification under sub‑section (1) of section 4, declare to be infested with kans. Section 3 empowers the Government to appoint a Reclamation Officer. Section 4, which is one of the principal provisions whose validity is being contested, is reproduced in full. It provides that if the Government is of the opinion that any area is infested with kans, it may, by issuing a notification and giving full particulars, declare such area to be a kans area for the purposes of the Act. The notification is declared to be sufficient notice to all persons holding or having an interest in the land that forms part of the declared area. The Reclamation Officer is required to give publicity to the notification in a manner he deems appropriate. The Reclamation Officer is also authorised to enter any land within the declared area, to take possession of such land for as long as necessary to carry out eradication of kans, and to conduct any ancillary or subsidiary operations that may be required.

Section 5 provides for the constitution of a Reclamation Board, a provision to which the Court indicated it would refer later. Section 6 deals with the consequences of a notification issued under section 4(1) and with matters that arise thereafter; because it is closely linked to section 4, the Court decided to reproduce it in full. The first clause of section 6 begins with the words “On issue of a notification …”.

Under sub‑section (1) of section 4, the Reclamation Officer, together with any subordinates and workmen authorized by him, may, despite the provisions of the Bhopal Land Revenue Act, 1932 (TV of 1932), enter upon any land that has been declared a kans area for the purpose of conducting a survey or any other ancillary purpose, and may also take possession of the whole or any part of that kans area in order to carry out eradication work and other ancillary or subsidiary operations thereon. Sub‑section (2) provides that no person shall be permitted to use the land that has been notified in this manner for any purpose until the Reclamation Officer, after completing the reclamation and demarcation operations, issues a notification in the official Gazette specifying the restoration of the land to the person who, on the date of takeover, was in lawful possession of it or who was otherwise entitled to such possession. The provision further stipulates that no revenue shall be levied on a person whose land has been taken over by the Reclamation Officer under this section for the period during which the land remains in the Officer’s possession. Sub‑section (3) clarifies that any reference to the person entitled to take possession of the notified land shall, if that person is deceased, be deemed to include reference to his successors in interest. Finally, sub‑section (4) declares that the notification mentioned in sub‑section (2) shall be final, that it discharges the Government from all liability concerning the delivery of possession, and that the possession of the land shall, on the date specified in the notification, be deemed to have been delivered by the Government to the person entitled to it.

Section 7 outlines the mechanism for determining the share of costs to be borne by persons having an interest in the land that has benefited from the tractorisation process, and the Court noted that the procedure set out in this section was alleged to have been ignored in the demands made on the respondents, a circumstance that enabled the respondents to successfully resist those demands. Section 7 reads as follows: “(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 are intended to be carried out, shall be liable to pay the costs of such operations on his land. (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 kans area. The amount so fixed shall be charged on the land to which it relates, and shall not be called into question 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.” The Court proceeded to examine the implications of these provisions in the context of the present dispute.

Section 7 of the Act further directed the Reclamation Officer to decide whether the amount apportioned to a land holder or interest‑holder should be payable in a single lump sum or in annual instalments that the officer might fix. The provision also allowed that the payment prescribed in sub‑section (4) could be made in cash, in agricultural produce from the land, or in a combination of both. Moreover, if the actual cost of the eradication or other ancillary operations turned out to be higher or lower than the amount assessed for a particular holder, the surplus would be returned to that person and any shortfall would be recovered from him, as the circumstances required.

The mechanism for collecting these sums was set out in section 8. That section empowered the Reclamation Officer to serve a notice of demand on any person holding or having an interest in land where eradication work had been carried out, requiring payment of the amount determined under section 7. The notice was to be treated as an arrear of land revenue, thereby providing a basis for recovery. Section 9 dealt with compensation. It allowed any person, within thirty days of the land’s taking over under section 6, to apply to the Reclamation Board for compensation for any plant, tree, building, hut or other structure destroyed or damaged by the eradication work. Upon receiving such an application, the Board could conduct an inquiry and, if it deemed compensation justified, could grant an amount it considered appropriate. The decision of the Board was declared final and not open to challenge in any court. This compensation provision, along with other sections of the Act, had been struck down on the ground of unreasonableness, although the learned Judicial Commissioner had examined several other sections which did not bear materially on the issues raised in the appeals before the Court.

Turning to the factual background of the petitions, the Court noted that the circumstances were essentially the same in each case, and therefore it would suffice to describe the facts of one representative petition. The Court therefore referred to the facts of Case 18 of 1954, which gave rise to Civil Appeal 379 of 1959, as illustrative. On 18 January 1951 the Chief Commissioner, exercising the power conferred by subsection 4(1) of the Ordinance, issued a notification declaring all villages in seven specified tehsils to be “Kans areas.” This notification was published in the Gazette on 27 January 1951. Subsequently, a further notification dated 30 May 1951 amended the original declaration by adding villages from two additional tehsils to the list of Kans areas. The amendment was likewise published in the Gazette.

Two additional tehsils were subsequently added to the original seven tehsils mentioned earlier. One of these newly added tehsils was Tehsil Huzur, and the lands of the petitioners – a total of thirty landowners – were located within this tehsil. The amendment that added the two tehsils was, as required, published in the Gazette.

On 21 November 1952 a further notification was issued. The notification, inter alia, stated that ten named villages in Tehsil Huzur were to be taken over for the purpose of carrying out tractorisation operations “during the ensuing season.” After the issuance of this notification, the tractorisation operations were indeed carried out on the lands of the petitioners.

Subsequently, on 4 February 1953, the Land Reclamation Officer of Bhopal addressed a communication to the Tahsildar of Huzur and to Tahsildars of other tehsils. The communication read, in substance, as follows: “I forward herewith demand lists of villages of your Tehsil in respect of the tractorisation charges for the season 1951‑52. Pending a final decision regarding the 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 the first instalment of the demand. As soon as the rates are finalised, an intimation as to the exact rate will be sent to you to adjust the account likewise.” The rates were later finalised after an intimation was received from the Government of India on 12 August 1953. The figure was then modified slightly in March 1954 and again in October 1954 by a revision to a lower amount. The petitioners’ challenge, however, did not depend on the quantum of the levy or on any claim that the amount was unreasonable in relation to the service rendered.

When the authorities demanded the first instalment of Rs 10 per acre from the petitioners, the petitioners filed Petition 18 of 1954. In that petition they primarily sought two forms of relief: (1) a declaration that the original Ordinance and the subsequent Act, which repealed and re‑enacted the Ordinance with retrospective effect, were unconstitutional and void; and (2) a permanent injunction restraining the State and its authorities from enforcing the demands upon them. The petition also contained prayers for certain other reliefs which were not granted and which are now immaterial.

The learned Judicial Commissioner substantially allowed the petition and granted the principal reliefs sought, which gave rise to the present appeal. As earlier noted, the other petitions presented in the same matter contain substantially the same facts and content, and all five petitions were dealt with by a common judgment; therefore, it is unnecessary to repeat their particulars.

Four points were advanced by counsel for the appellant. First, that the Judicial Commissioner was wrong in holding that the principal and operative sections of the Act were unconstitutional and void. Second, that the procedure prescribed by sections 7 and 8 of the Act for enabling the demand to be made had been substantially complied with. Third, that even if the Act were found unconstitutional, it must be considered 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 – was extended to the Bhopal area.

In this appeal the counsel for the appellant raised four principal submissions. First, it was urged that the learned Judicial Commissioner was incorrect in holding that the principal and operative sections of the Act were unconstitutional and void. Second, the counsel asserted that the procedure prescribed by sections 7 and 8 of the Act for enabling the demand to be made had been substantially complied with. Third, the counsel contended that even if the Act were unconstitutional it must be regarded as validated by the Madhya Pradesh Re‑clamation of Lands (Extension to Bhopal) Act, 1957, because the area to be challenged had been extended to the Bhopal region. Fourth, the counsel argued that, in view of the benefit conferred on the farmers by the tractorisation operations, the charges demanded could be recovered under section 70 of the Indian Contract Act. The Court indicated that these submissions would be addressed in the order in which they were presented. The first provision of the Act that had been declared unconstitutional was section 4(1). That provision empowered the Government, by way of a notification, to declare any area a “kans area” if it was of the opinion that the area was infested with kans. Two grounds were advanced in support of the challenge to the validity of this provision, and both were accepted by the Judicial Commissioner. The first ground was that the provision amounted to an excessive delegation of legislative power. The second ground was that the power conferred was arbitrary and constituted an unreasonable restriction on the right to hold and enjoy property, thereby violating Articles 14 and 19(1)(f) of the Constitution. The Court agreed with the appellant’s counsel that section 4(1) did not suffer from the vice of excessive delegation of legislative power. The preamble and long title of the Act make clear that the enactment is intended “for the reclamation and development of lands by the eradication of kans weed in certain areas in the State,” and that the purpose is the eradication of kans in areas that are infested. Consequently, the legislative policy behind the provision is evident, and the role left to the executive is to give effect to that policy in order to achieve the purposes of the Act. The term “areas infested” cannot be defined legislatively in precise terms; rather, it must be left to the executive to determine, taking into account the intensity of the weed infestation and its distribution. Thus, the Act supplies legislative guidance regarding the criteria that the Government must consider before declaring any area a “kans area,” and because the determination of a particular area is left to the executive, it cannot be described as a delegation of legislative power. The second ground, concerning the reasonableness of the power, required more detailed examination. In that regard, the Court noted certain admitted facts. The notification issued under section 4(1) on 18 January 1951, read together with a further notification dated 30 May 1951, declared all the villages in nine specified tehsils to be “kans areas.” The respondents, who were the petitioners in the writ petitions, complained that their lands were not infested with kans and that the notification and subsequent proceedings had been issued without giving them an opportunity to establish that fact. The State, however, maintained that the respondents’ complaint was erroneous and that the lands in question were indeed infested with kans. The Court also referred to an affidavit filed by Syed Majid Ali, who had previously conducted experiments under the Imperial Council of Agricultural Research and whose recommendations had led to the decision that tractorisation was the most effective method of eradicating kans. In paragraph nine of his affidavit, Ali stated that before he commenced his experiments in the State of Bhopal, a statement showing kans infestation on a tehsil‑wise basis had already been prepared by the State authorities and was filed in the case, together with a corresponding map. That map divided the State’s lands into three groups based on the intensity of kans infestation.

In the present matter, the State contended that the petitioners’ allegation was unfounded and asserted that the lands in question were, in fact, infested with kans. In order to substantiate this contention, the Court found it necessary to refer to a fact that the State had expressly admitted. Among the affidavits filed in support of the State’s written statement was an affidavit submitted by Syed Majid Ali, a researcher who had previously conducted experiments under the Imperial Council of Agricultural Research and whose recommendations had led to the adoption of tractorisation as the preferred method of kans eradication. In paragraph 9 of his affidavit, Mr Ali declared that, prior to the commencement of his experiments in the State of Bhopal, the State authorities had already prepared a statement showing the extent of kans infestation on a tehsil‑wise basis, and that both this statement and a corresponding map had been filed in the present proceeding. The map in question divided the State’s lands into three distinct groups according to the intensity of infestation, assigning a different colour to each group; the highest intensity group comprised areas where infestation exceeded sixty per cent, the middle group covered areas with infestation ranging between forty and sixty per cent, and the lowest group included those with infestation below forty per cent. A careful examination of the map, which forms part of the record before the Court, reveals a uniform colour throughout each of the three groups, thereby suggesting that, within any tehsil belonging to a particular group, the percentage of infestation was uniform across the entire area. Counsel for the petitioners, Mr Sen, placed strong reliance on this map as evidence that the infestation was uniformly distributed as depicted. However, the Court noted that the map did not present an accurate picture of the actual spread of kans, a conclusion that was supported by a statement prepared in July 1941 and identified as Exhibit N/4, the very document first referenced by Mr Ali. Exhibit N/4 divided the State into two districts—western and eastern—the western district consisting of seven tehsils and the eastern district comprising eleven tehsils, and it provided a detailed break‑up of occupied and unoccupied land, the area of each tehsil, the area that had been cleared of kans, and the area that remained infested. Taking the first tehsil listed in the notification dated 18 January 1951, namely Nasrullaganj, Exhibit N/4 shows that out of the total occupied land, 8,478.86 acres were still kans‑infested while 210,160.3 acres had already been cleared. Although the figures do not specify whether the cleared portions were isolated fields or larger contiguous patches, it is clear that the entire tehsil, or indeed the whole occupied land within the tehsil, was not uniformly infested as the map would suggest; substantial portions had already undergone eradication operations. It is conceivable that between the preparation of the 1941 statement and the issuance of the notification under section 4(1) of the Act on 18 January 1951, some lands that had previously been cleared might have become infested again, yet the existence of such cleared areas indicates that, prior to any interference with the farmers’ property rights, the authorities should have afforded the landowners an opportunity to demonstrate, to the satisfaction of the officials, that their land was not kans‑infested and therefore did not require tractorisation.

The Court observed that although the Act had been issued, land that had previously been cleared could have become infested again; nevertheless, before any interference with the farmers’ right to their property, the farmers ought to have been afforded an opportunity to satisfy the authorities that their land was not infested with kans and therefore did not require tractorisation. The Court noted that section 4(4) empowers the Reclamation Officer to enter any land in the area declared under section 4(1) and to commence and complete eradication operations, and that this provision must be considered in the present context. The Court explained that, at the very least, if at the stage when the Reclamation Officer selected the particular parcel for eradication, notice had been required to be given to the owner or occupier so that the owner could demonstrate that, despite his land being included in the notification under section 4(1), the specific parcel was not kans‑infested and therefore did not require eradication, then the provision in section 4(1) would not have been open to serious challenge. However, the Court pointed out that even at the second stage, when the officer was empowered to select the land for the purpose of giving effect to the Act and to conduct tractorisation operations thereon, the Act contains no provision granting the interested persons an opportunity to be heard. Consequently, the Court held that section 4(1), read in conjunction with the power conferred by section 4(4) and the absence of any mechanism for entertaining objections, must be characterised as arbitrary and as imposing an unreasonable restriction on the right to hold and enjoy property under Article 19(1)(f), especially in view of the acknowledged patches of land in the same tehsil that had been cleared at least as early as 1941. The Court further observed that the operation of several subsections of section 6, which it intended to reference immediately, reinforces its conclusion regarding the unconstitutionality of the provisions of section 4(1) read with section 4(4). Under section 6(1)(b), immediately upon the issue of a notification under section 4(1), the Reclamation Officer is empowered to take possession of the whole or any part of “the kans area” and to “carry on eradicating and other ancillary and subsidiary operations therein.” The Court noted that it was submitted that this provision, which deprives the land‑owner of possession of his property, is unconstitutional because it violates Article 31(2) as it originally stood before the Fourth Amendment. The Court quoted the original text of that article: “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 advanced was that the provision contravened this constitutional safeguard.

In the proceedings, the respondents argued that no compensation had been offered for the State’s taking of possession of lands notified under sections 4(1) and 4(4), and the learned Judicial Commissioner initially accepted this contention. Counsel Mr Sen responded to the objection with two separate answers. The first answer asserted that the period, if any, during which the owner was deprived of possession was so brief that it could not be described as “taking possession” under Article 31(2). He further contended, in a slightly altered form, that there was in fact no taking of possession at all because the Reclamation Officer only entered the land to conduct a tractorisation operation and did not disturb the owner’s possession. This argument, which claimed that the tractorisation activities did not disturb the owner’s possession and that the owner was not deprived of possession by the operation of the Act, ignored the statutory provisions that expressly transferred possession of the land to the Reclamation authorities upon issuance of the notification. Section 6(2) expressly prohibited the owner from using the land notified under section 4(1) until a subsequent renotification by the Reclamation Officer restored lawful possession to the owner. Consequently, the possession vested in the Reclamation Officer was exclusive and constituted a taking of possession within the meaning of Article 31(2). The statement that the deprivation was of short duration carried no persuasive force, because the Act does not prescribe any specific time limit within which reclamation must be completed. The Court was not convinced that the brevity of the deprivation, even if it were brief, had any material relevance to the question of whether the State had taken possession of the land. Even if a short period of deprivation might reduce the amount of compensation payable, it does not alter the factual reality of the State’s taking of possession as contemplated by Article 31(2). Accordingly, the Court concluded that the State had indeed taken possession of the owner’s immovable property under the Article. The second submission raised the issue of whether the law provided for compensation for the property taken into possession, noting that if it did not, the provision authorising the taking would be unconstitutional. Mr Sen relied on the proviso to section 6(2) as evidence that compensation was provided. That proviso, as recalled, stipulated that during the period when the land was in the possession of the Government for the purpose of conducting the eradication operation, no land revenue would be charged to the owner.

The Court observed that while the land remained in the possession of the Government for the purpose of conducting the eradication operation, the land owner was not required to pay any land revenue. Mr. Sen contended that the law imposed a duty on the owner to pay land revenue and that the suspension of this duty during the period when the owner was out of possession should, in the eyes of the law, be regarded as compensation, thereby satisfying the requirements of Article 31(2) as it originally stood. The Court considered this contention to be wholly without substance. Firstly, the Court noted that the framers of the Act were fully aware of the concept of compensation and expressly provided for compensation in section 9 with respect to the injury suffered by the owner. In the context of that provision and its language, the Court held that the framers could not have intended that merely refraining from charging land revenue during the period when the land was unavailable to the owner be treated as compensation. Secondly, the Court pointed out that even a cursory examination reveals the fallacy of the submission. If an exemption from land‑revenue payment were sufficient as compensation for a temporary deprivation of possession, then the same exemption for a permanent or even a ninety‑nine‑year deprivation would also be sufficient, an outcome that the Court described as utterly untenable. The Court explained that land revenue is ordinarily levied on the basis that the owner is legally free to use the land for profitable purposes; when the owner is deprived of that opportunity, the State merely exempts him from paying the revenue. Such exemption cannot be regarded as compensation for the loss of possession. Moreover, the theory of land revenue holds that it represents a proportion of the income derived from the land, fixed to allow the owner a surplus after the State’s share. When possession is taken away, the owner cannot earn any income, and an exemption from land revenue offers no compensation, merely alleviating the loss. Consequently, the Court found it unnecessary to examine whether, under Article 31(2) as it stood on the relevant date, any compensation, even if provided, needed to be adequate or how the adequacy could be subject to judicial review. The Court therefore stated without hesitation that section 4(1) read with section 6(1)(b) is unconstitutional because it violates Article 31(2). The learned Judicial Commissioner had also struck down section 6(2) as unconstitutional, a conclusion that Mr. Sen did not dispute. The Court mentioned that other minor points concerning section 6 have also been held to render that section unconstitutional, but it was unnecessary to refer to them given the discussion already expressed regarding the provisions under consideration. Finally, the Court noted that if the appellant State is unable to sustain the validity of sections 4 and 6, which are the key provisions of the Act, Mr. Sen conceded that it

In this case the Court observed that it was unnecessary to examine the validity of any other provision of the Act because the State had already been unable to sustain the constitutionality of sections four and six, and therefore the Court refrained from doing so. The Court then turned to the second principal ground relied upon by the respondents, namely that even assuming the Act remained valid, the requirements of section seven had not been fulfilled and consequently the demand made on the respondents for an instalment of the tractorisation charges was unauthorized and illegal. The State argued that the learned Judicial Commissioner was mistaken in upholding the respondents’ contention, and the Court considered the arguments presented on this point. Section five of the Act provided for the creation of a Reclamation Board, which at the relevant time consisted of the Development Commissioner as Chairman, six non‑official members who were members of the State Legislative Assembly, and five additional officials, with the Director of Land Reclamation acting as the Board’s Secretary. Section seven assigned to this Board the duty of first ascertaining the total expenditure that had been incurred or was to be incurred for land‑reclamation operations, and then equitably apportioning that amount among the land‑owners whose lands were subject to the eradication work. In the facts of the present matter, the Central Government initially bore the expenditure by employing the Central Tractor Organisation, a body established by the Central Government, and subsequently communicated to the State Government both the total sum that had been spent and the portion that was recoverable from the State, as well as the proposed method of allocating the recoverable amount among the various land‑owners. It was a matter of common ground that the Reclamation Board never convened, and therefore it neither computed the total expenditure incurred nor made any allocation of that sum among the affected land‑owners. After setting out these factual circumstances, the respondents pointed out in their petitions that, in the absence of compliance with the requirements of section seven, they had been informed of the contents of a letter dated 29 October 1954, sent by an Under‑Secretary to the Government of India to the Secretary of the Government of Bhopal Development Department, which specified the amount to be recovered from land‑owners for deep ploughing of their lands and instructed the State revenue officials to recover that amount. The Court noted that the respondents now admitted that this letter formed the basis on which the challenged demands were made against them. The learned Judicial Commissioner had held that the terms of section seven were mandatory, and that unless the mind of the Reclamation Board was applied to determine the total expenditure and its proper allocation among the various land‑owners, no lawful demand could be issued under section eight nor could any amount be recovered from the respondents. The Court found itself in full agreement with that conclusion, holding that the procedure prescribed by section seven was indeed mandatory and that, because the Board had not complied with that procedure, no lawful demand could be made for the contribution payable by any land‑holder either by the Central Government or by the State Government acting on behalf of the Central Government.

Section 7 was held to be mandatory, and because it had not been complied with, no lawful contribution could be demanded from any landholder either by the Central Government or by the State Government acting on behalf of the Central Government without using the procedure set out in that section. Consequently, the demand notices that had been issued were properly set aside as illegal. The Court added that the validity of such notices could arise only if the essential provisions of the Act – namely sections 4 and 6 – were themselves valid. Since the constitutional validity of those provisions had already been questioned and found wanting, even assuming that the requirements of section 7 had been fulfilled, a lawful demand could not be made against the respondents. Two minor points raised by counsel for the appellant were noted, but they did not require detailed consideration. The first point concerned the effect of the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 1937. That legislation extended the Madhya Pradesh Act, which is similar but not identical to the Act under review, to the Bhopal area. Counsel argued that, because of this extension, the demand could be justified under the Madhya Pradesh Act even if the Bhopal Act were invalid. The Court observed that this argument was untenable because the extension had been enacted to operate only prospectively and not retrospectively. Therefore, any demand made before the commencement of the Madhya Pradesh Act could not be sustained on its basis, and there was no need to examine how a retrospective application of that Act might affect the demand’s validity.

The second point submitted was that, even if the Act were invalid and the demand could not be justified under section 7, the respondents had nevertheless benefited from eradication operations carried out on their lands, and the lands remained in their possession. It was contended that, under section 70 of the Indian Contract Act, a quasi‑contract would arise, allowing a claim for compensation to be maintained. While this argument raised broader issues that might be answerable, the Court noted that it had never been raised as a defence to the writ petitions before the Judicial Commissioner, nor had it been argued on appeal or included in the statement of case filed in this Court. Because the ground had not been pleaded at any earlier stage, the Court deemed it improper to permit counsel to raise it now. The discussion of these points concluded without further analysis, as the primary relief sought by the respondents had already been granted.

The Court observed that the appeals currently pending were substantially similar to one another and that the matters raised in each appeal were identical. Because the factual matrix and the legal questions were the same across the appeals, the Court held that there was no necessity to consider each appeal separately. The Court further noted that the principles articulated in its earlier judgment on Civil Appeal 379 of 1959 were directly applicable to the present appeals. The reasoning set out in that earlier decision, which addressed the same issues, was therefore extended to cover all of the pending appeals without the need for a fresh exposition. Having applied the earlier reasoning equally to each of the appeals, the Court concluded that none of the appeals succeeded. Accordingly, the Court dismissed each appeal and ordered the appellants to bear the costs, limiting the cost award to the fee for one hearing in each case.