Kodarap Laxmiah vs The State of Hyderabad

Mohd. Ahmed Ansari, J.—This is a Writ application by the owner of a plot of land bearing new Survey Number 52/53 and situated to the west of Musheerabad Road, to quash two notices issued to him by the Hyderabad City Improvement Board, which are dated'' August 4, and September 22, 1952. They relate to the Board''s decision to acquire the land. By the letter of 22-9-1952, the Superintending Engineer of the Board, Hyderabad, has informed the applicant that he should attend the office with all relevant documents and give necessary ''razinama'' so that his case may be sent to the Collector for giving his decision.

The application says that the aforesaid plot was purchased by the applicant for the purposes of constructing his residential house and? for the last seven or eight years the Board has been intervening to prevent the applicant from getting permission from the Municipality for constructing the house. Originally the land was proposed to be acquired in 1353 F. (1943-44), but after a long time information was given that it would not be acquired. Again the City Improvement Board in 1356 P. (1946-47) served the applicant with notices of acquisition; but again the scheme was dropped. The applicant asked the Commissioner of the Hyderabad Municipal Corporation for permission to build a house; but on 2-8-1952, he was informed that as the plot was covered by the schemes of the City Improvement Board, permission to construct could not be given. The application then alleges that the applicant applied to the Board for the copies of these orders but he got the replies which he seeks to be vacated by the issuing of the Writ. The application further submits that a memorandum was sent to the Minister in charge of Local Self-Government, but a reply was received that the applicant should furnish the Superintending Engineer of the Board with documents for the early settlement of the compensation.

In the reply of the opposite party dated 5-2-1953, it is claimed that the plot was being acquired for the purposes of road expansion, and notices under the relevant Rules have also been issued. As regards the delay in determining the question of compensation, the explanation offered is that the Court for adjudicating disputes relating to compensations for lands acquired for the City Improvement Board was wound up three years earlier and the Government has recently determined as to where the pending cases would be decided; under the amendment to the Hyderabad Land Acquisition Act such cases were now within the jurisdiction of the Collector for the Hyderabad District, and the document showing the amount of compensation payable to the applicant has now been sent to the Office of the Collector of the Hyderabad District, where the applicant can appear and seek his legal redress.

The reliance in the reply on the amending Act, which is called the Hyderabad City Improvement Board (Land Acquisition) Act, No. 35 of 1951, has raised the issue in the case as to whether the assent of the President was necessary tinder Cl. (3) of Art. 31 of the Constitution in order to make the Act operative. It was argued before us on behalf of the State that the Act is for the promotion of public health and under Cl. 5(b) (ii) of the aforesaid Article the President''s consent is not necessary. For purposes of deciding the constitutional question raised in the case, it has become essential to examine the functions of the Hyderabad City Improvement Board, the earlier legal authority under which lands were acquired for the purposes of the Board and the provisions of the impugned Act. We would emphasise that in deciding whether (any particular legislation is unconstitutional it is necessary to examine with some strictness the substance of this legislation. In this connection we would refer to the following observations of Maltajan J., in the case of -- Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others,

It is necessary to examine with some strictness the substance of the legislation for the purpose of determining what it is that the legislation has really done; the Court when such questions arise is not over-persuaded by the mere appearance of the legislation. In relation to constitutional prohibitions binding a Legislature it is clear that the Legislature cannot disobey the prohibitions merely by employing indirect method of achieving exactly the same result. Therefore, in all such cases the Court has to look behind the names, forms and appearances to discover the true character and nature of the legislation.

We have, therefore, to determine in this case whether the amending Act by extending the provisions of the Hyderabad Land Acquisition Act to area and proceedings originally not covered by the Acquisition Act, has authorised exercise of the right of ''eminent domain'' to new fields or the legislation is an instance of police power. The Hyderabad City Improvement Board was formed thirty-five years back and its functions are to submit to the Government after careful consideration proposals relating to the general improvement of the city, opening out congested areas, improvement of sanitary conditions, to safeguard the public health and Municipal administration. Undoubtedly these purposes are public; but that is not sufficient to make Cl. 5(b) (ii) of Art. 31 applicable. For the aforesaid Clause covers only laws for the promotion of public health or the prevention of danger to life or property, and the above-mentioned purposes of the Board are wider. In these circumstances, it would be straining the language of the Act to hold that it authorised acquisition of the lands only for promoting public health or preventing danger to life or property.

It may also be noted that some of the several powers assigned to the Board are to acquire and sell lands for recoupment purposes, to sell lands to private persons, to lease land for beneficial purposes, to control and develop open lands in the city and suburb and also to prevent leasing or selling sites of historic association to individuals. Therefore, we are justified in concluding that the purposes of the Board are not confined to promotion of public health, but cover the larger field of improving the city.

Earlier to the Act there was a Regulation governing proceedings relating to the acquisition of lands for the purposes of the Board, which was sanctioned by H. E. H. the Nizam, by a Firman dated Ziqada 13. 1332 H. (4-10-1914). This Regulation consisted of 18 Sections. By S. 2 the provisions of the Regulation were made applicable to the areas within the Hyderabad Municipal limits so far as proceedings relating to the acquisition of land for the purposes of the Board were concerned, and the provisions of the Hyderabad Land Acquisition Act subject to exceptions mentioned in the Regulation, were excluded from such proceedings in the area. Sections 3. 5 and 7 of the said Regulation dealt with the publications of notices. The first Section of this group provided that whenever it appeared to the City Improvement Board that any land was likely to be needed for the purposes of the schemes of the Board, a Notification to that effect should be published in the Gazette, and the Sanitary Engineer was further to make public the substance of such Notification on the site of the land to be acquired.

Section 5 required further publications of the declarations in the Jarida, whenever the Board was satisfied about the need of the particular land; and under S. 7, the Sanitary Engineer after the lands had been measured and marked, was to give public notice at convenient places on or near the land to be acquired stating the Board''s intention to take possession of the land and for filing claims of compensation of all interests in such land to him within one month.

The nest group of Sections dealt with the questions of damages or compensation. Section 4 made the officer responsible for all damages caused by his entry after the first notice. By S. 9 the Sanitary Engineer was to forward his valuation statement of the compensation to the Court which was specially constituted for the purpose. This Court under S. 10 was to hear the objections of persons relating to compensation amount. Section 11 said that in giving judgments the Court was to determine the true area of the land, the amounts of compensation having regard to the provisions of Ss. 18 and 19, Hyderabad Land Acquisition Act. Then appeals lay direct to the High Court under S. 15 from such decisions.

We need mention only three more Sections. After the judgment was delivered the Sanitary Engineer was to take possession under S. 13, and S. 14 provided that when possession was so taken the land would vest in the Board free from all encumbrances. By S. 18 the provisions of Chapter VIII of the Hyderabad Land Acquisition Act alone were made applicable with slight modifications of the definitions. It is clear that the provisions relating to payment of compensation on the decision of the Collector and contained in Chapter V of the Land Acquisition Act were not applicable, and compensation became payable only after the judgment of the Court under S. 16 of the Regulation was delivered. Before dealing with the provisions of the amending Act, we may mention here that notices under Ss. 3 and 5 of the Regulation were published in the Gazette on Bahman 7 and Thir 5, 1356 P. (7-12-1946 and 5-5-1947). But there appears to be no notice under S. 7, nor has the property vested in the Board prior to the inauguration of the Constitution.

We shall now deal with the provisions of the amending Act. Section 6 says:

The rules for the acquisition of lands by the Hyderabad City Improvement Board are hereby repealed:

Provided that--

(1) the repeal shall not affect the validity of any action taken or notices issued under the said rules and any such action or notices shall have effect as if taken or issued under the corresponding provisions of the Hyderabad Land Acquisition Act, 1309 Fasli ;

(2) all pending proceedings for the acquisition of property or easement on behalf of the City Improvement Board, Hyderabad, shall, subject to the provisions of the Constitution, be continued and disposed of, so far as may be, in accordance with the said rules, but in the application of the said rules the Collector shall be deemed to be the Court appointed for the purpose of assessing compensation.

As regards fresh proceedings S. 3 of the new Act provides that whenever the Board is satisfied that any immovable property is likely to be acquired for the purposes of the Board and cannot be acquired by agreement, the Board is to direct the Superintending Engineer to take steps for the survey and after considering the report it may order the Engineer to apply to the Government for the acquisition of the property, who may order proceedings to be taken for acquiring the same as if such property were needed for a public purpose within the meaning of the Hyderabad Land Acquisition Act. This Section also says that on payment of the compensation amount the property shall vest for the purposes of the trust. The remaining two Sections 4 and 5 of the Act deal with the authorisation to the Superintending Engineer to survey the property which is to be acquired and payment of the damages caused by such entry.

The sum and substance of this amending Act, in our opinion, is that the exclusion of the provisions of the Hyderabad Land Acquisition Act from the proceedings relating to the acquiring of lands for the purposes of the City Improvement Board in the Municipal Area of Hyderabad, has been repealed, and the Land Acquisition Act has been made applicable to future proceedings. The old Court has been abolished and a new authority has been appointed to adjudicate on claims of compensation. Now it cannot be denied that had the Hyderabad Land Acquisition Act been passed after the inauguration of the Constitution it would have been covered by Cl. (2) of Art. 31, and would have required the assent of the President under Cl. (3) of the aforesaid Article. The position, in our opinion, is not different where the Land Acquisition Act is extended to proceedings excluded in any given area. In each case the exercise of the right of ''eminent domain'' is under a new statutory authorisation and the intention of the framers of the Constitution appears to be that any State bill authorising exercise of such a right, should be reserved for the consideration of the President, and would become law only after his assent is received. We have intentionally used the word ''bill''; for the word ''law'' in Cl. (3) of Art. 31 is to be construed in the same manner as indicated by Patanjali Sastri C. J., in the case of - The State of Bihar Vs. Sir Kameshwar Singh, In the result the assent of the Governor or Rajpramukh to such a legislation is of no constitutional importance.

We also think that the amending Act has not been passed in exercise of taxing and police powers by the State. Clause (5) of Art. 31 has been framed to limit the powers of ''eminent domain'' by mentioning the aforesaid powers. The observation of his Lordship the present Chief Justice of India i Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, at p. 127 is clear on this point. He says:

The saving Clause in Art. 31 has been designed with expressed purpose of saving to a certain extent laws made in exercise of the police power of the State which may lead to deprivation of property. It has also saved laws relating to tax. It has thus delimited from the field of ''eminent domain'' the field of exercise of police power and the exercise of the power of taxation.

Had the sole object of the City Improvement Board been to promote public health, it could have been argued that the particular legislation was covered by Cl. 5(b) (ii) of Art. 31. But we have already pointed out that the purposes of the Board are also to make general improvement in the City and by mere inclusion of public health as one of the purposes it cannot be said that the new Act is for acquiring lands for only this purpose. If we were to hold otherwise all the safeguards contained in Cl. (2) of Art. 31 would be circumvented.

In the particular case before us, the land is being acquired, as has been admitted in the reply, for purposes of widening the road which may be to improve the city or develop suburb. Under either circumstance, the acquisition cannot be construed as one for promoting public health. Moreover, one of the distinguishing characteristics of exercise of police power as contrasted with that of ''eminent domain'', as has been pointed by Willis on Constitutional Law at page 715, is that ''eminent domain'' takes property for use by the public or for the benefit of the public as in the case of obtaining water supply, while the police power prevents people from using their own property so as to injure others as in the case of a prohibition law. The amending Act deals with the acquisition of property rather than with imposing restrictions on use by its owner, for under S. 3 of the said Act the land vests in the Board after compensation is paid. Therefore, the particular legislation cannot be held as relating to police power.

For the aforesaid reasons, we are of opinion that the amending Act is not covered by Cl. (5)(b)(ii) of Art. 31, but is governed by Cl. (2) of Art. 31. It follows that the assent of the President is necessary to make it a law and as no such assent has been admittedly received, the authorisation to the Collector to determine questions of compensation is without legal force. Accordingly, the notices by the City Improvement Board dated August 4 and September 22, 1952, are quashed as being in violation of the fundamental right of the applicant.