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Judgment
M.R. Sharma, J.—Whether the State Government can validly subject the lands of the petitioners to compulsory aerial sprayings at their cost is the short question involved in Civil Writ Petitions Nos. 1927, 2013, 1982 and 2008 of 1977, which are almost similarly worded. They are being disposed of by this common judgment.
The State Government has ordered the impugned action in exercise of powers conferred upon it u/s 6--A of the east Punjab Agricultural Pests, Diseases and Noxious Weeds Act, 1949(hereinafter called the Act).
The grievances made are that the petitioners have already sprayed their cotton crops grown on small and isolated plots of land, and that the aerial spraying, besides damaging other crops and being injurious to animal life would burden them with spraying costs at the rate of Rs. 40/-per acre which is almost eight times that cost of ground spraying. It has also been alleged that before ordering spraying operations, some of the mandatory provisions of the Act have not been complied with inasmuch as the Inspector appointed under the Act did not enter upon their lands for finding out whether there were any pests, diseases or noxious weeds on their lands and whether preventive or remedial measures, or both of them, were required to be taken to combat such pests or diseases etc. As laid down in Section 5 of the Act. With reference to Section 6 of the Act, it was submitted that the Inspector appointed under the Act had to come to the conclusion that the preventive or remedial measures mentioned in the notification issued u/s 3 of the Act had not been carried out and thereafter he has to call upon the occupiers of the land concerned by a notice in writing to carry out such preventive or remedial measures within the time to be specified in such notices. It is only when occupiers fail to comply with such notices that the Inspector can carry out at the expense of the occupiers the preventive or remedial measures mentioned in such notices. In the absence of adopting this elaborate procedure, no spraying charges can be recovered from the petitioners. The constitutional validity of Section 6--A of the Act has also been challenged on the grounds that it infringes the Fundamental Right of the petitioners guaranteed under Article 19(1) of the Constitution besides conferring arbitrary powers on the State Government to fix exhorbitant spraying charges. The existence of an order passed under this section by the State Government was also challenged.
On behalf of the respondents, it has been stated that the impugned action was being taken on the advice of technical experts of the Department of Agriculture. It was denied that the serial spraying would cause any damage to other crops or animal life. It was conceded that no notice was given to the occupiers of land but it was further clarified that notices were required to be given only if the authorities acted under sections 5 and 6 of the Act and not when the Government ordered aerial spraying u/s 6--A of the Act. The last mentioned section did not require any notice to be given to the land--owners. Regarding the cost of spraying it was stated that small and marginal farmers shall be charged Rs. 17/-and 22/-per acre and not Rs. 40/-per acre as alleged in the petition. Last of all, it was submitted that all the provisions of the Act were constitutionally valid and a proper order u/s 6--A of the Act had been passed by the State Government.
At the very outset, it becomes necessary to examine the provisions of the Act, as it stood at the time of its inception. Section 2 is the definition clause. Sub--section (1) of this section defines ''insect pest'' to mean any insect or other invertebrate animal which has been declared to be an insect pest by notification u/s 3. Sub--section (2) of this section defines an pointed u/s 10. Sub--section (3) defines a ''Notified area'' to mean any area specified in the notification issued u/s 3 in which a declaration made under the said section shall remain in force. Sub--section (4) of this section defines ''noxious weed'' to mean any weed declared to be a noxious weed by notification u/s 3. Sub--section (5) of this section defines an ''occupier'' to mean the person having for the time being the right of occupation of any land or premises or his authorised agent or any person in actual occupation of the land or premises and includes a local authority having such right of occupation or in such actual occupation. According to sub--section (6) of this section a ''Plaint'' includes agricultural or horticultural crops, trees, bushes, or herbs or the seed, fruit or any other part thereof which is used for food of man or beast or for any purpose in connection with art or manufacture. Sub--section (7) of this section defines a ''plaint disease'' to mean any fungoid, bacterial virus, parasitical or other disease declared to be a plaint disease by notification u/s 3 of the Act. Section 3 of the Act empowers the Government to declare insect pests, plaint diseases and noxious weeds and direct measures to eradicate or prevent them. Section 4 lays down that on the issue of a notification u/s 3, every occupier within the notified area shall be bound to carry out the preventive or remedial measures mentioned in such a notification. Section 3 empowers an Inspector to enter upon any land or premises after giving the prescribed notice to the occupier thereof for the purpose of ascertaining whether there is any insect pest, plaint disease or noxious weed on such land or premises, and whether preventive or remedial measures, or both of them, as the case may be, mentioned in the notification u/s 3 of the Act, have been carried out. Section 6 lays down that if on an inspection of any land or premises u/s 5, the Inspector finds that there is any insect pest, plant disease or noxious weed on such land or premises and that the preventive or remedial measures mentioned in the notification issued u/s 3 have not been carried out, he may, subject to any general or special orders of the State Government, call upon the occupier of such land or premises, by notice in writing to carry out such preventive or remedial measures within the time specified in the notice. The occupier of land is entitled to question the notice in appeal within seven days from the date of the service upon him of the said notice. The appellate authority is also empowered to extend the time specified in the notice and such an order is to be treated as final and conclusive and incapable of being called in question in any court,. Section 7 lays down that on the failure of an occupier to comply with the notice u/s 6 of the Act, the Inspector may carry out at the expense of the occupier the preventive or remedial measures mentioned in the notice. The cost of such measures shall be payable by the occupier and shall be recoverable from him as arrears of land revenue. The order passed by the Inspector is also appealable and the latter order is incapable of being called in question in any court. Section 8 places a duty on certain village officers to report appearance of insect pest, plant diseases or noxious weeds in their respective areas. Section 9 relates to offences and penalties. Section 10 empowers the State Government to appoint a person as an Inspector for a local area by a notification in the official gazette. Section 11 relates to the bar of suits or other legal proceedings against the State Government in respect of anything done in good faith under the provisions of this Act. Section 12 empowers the State Government to delegate its powers to any officer. Section 13 empowers the State Government to make rules for carrying out the purposes of this Act.
In short, the Act provides an elaborate machinery for the protection of crops from insect pests and other noxious weeds. The State Government has to issue a notification u/s 3 of the Act to declare insect pest for a particular area and to direct the carrying out of such preventive of remedial measures as may be necessary in order to eradicate such pests, diseases or noxious weeds from that area or to prevent their spread or re--appearance. After the issuance of the notification, the authorised Inspector can, after giving prescribed notice to the occupier, enter upon his land to find out whether any insect pest, plant diseases or noxious weeds have been removed or not. If he finds that the same have not been removed, he can call upon the occupier to remove them within the specified period. On the failure of the occupier to do so, the Inspector can order the remedial and preventive measures to be adopted at the cost of the occupier, which is recoverable as arrears of land revenue. This Act was amended by Haryana Act No. 29 of 1969, which received the assent of the Governor of Haryana on September 2, 1969. By section 3 of the Amendment Act, a new section to be numbered as 6--A was inserted in the principal Act after Section 6. It reads as under:--
"6-A. Power of State Government to get measures carried out. (1) Notwithstanding anything contained in this Act, where it appears to the State Government that it is necessary to take immediate measures to eradicate any pest, plant disease or noxious weed from any area notified u/s 3, it may, at the expense of all the occupiers in such area, cause to be carried out such preventive or remedial measures, including the destruction of any pest, plant disease or noxious weed or any plant, as the State Government may deem necessary.
(2) The cost of any measures carried out under sub--section (1) shall be payable by each occupier in such area in such proportion as may be determined by the State Government on demand made to him within a period of thirty days from the date of such demand and if not so paid, shall be recoverable from him as an arrear of and revenue."
This section begins with a non obstinate clause and purports to give additional powers to the State Government to act on behalf of the occupiers of land for carrying out preventive and remedial measures including the destruction of pests, plant diseases etc. at their cost whenever it is felt that such measures should be carried out immediately.
The other amendments introduced by the Amendment Act do not deserve to be noticed.
When the provisions of the Act as enacted to begin with are considered along with Section 6--A of the Act introduced by Haryana Act No. 29 of 1969, it becomes obvious that the law originally enacted did not authorise the State Government to step in even if it was of the opinion that it was necessary to take immediate measures to eradicate any pest, plant disease or noxious weed from the first notified area. It has to adopt the cumbersome procedure of first calling upon the occupiers of the land to take measures for their eradication on their own and it could act on their behalf only if they failed to do so. The provisions of the Act as originally enacted were regarded insufficient by the Legislature to cope with the situation and precisely for this reason it decided to arm the Government with additional powers to be exercised in the manner laid down u/s 6--A of the Act. On June 17, 1977, the Government did issue a notification u/s 3 of the Act declaring therein the pests which were injurious to cotton crops grown in specified areas and calling upon the occupiers of land to adopt preventive and remedial measures which consisted of serial/ground spraying with certain pesticides. After the issuance of this notification the authorised Inspector could, under the law, enter upon the land of occupiers to see whether the pests etc. had been removed or not. If he found the same had not been done he could call upon the occupier concerned by a notice in writing to do so within a specified period, and on his failure to do so to carry out the remedial or preventive measures at his cost. But as stated in the written statement filed by the respondents, the authority concerned did not act u/s 6 of the Act. In this situation, the question of issuing any notice to the occupier of land did not at all arise.
The State Government has ordered the serial spraying at the cost of the occupiers of land u/s 6--A of the Act. The question which calls for determination is whether the occupier of land should have been heard before introducing this measure? The Section itself does not provide any notice to be given to them. Even so, should we read this provision consistent with the principles of natural justice or not? In this respect the following observations made by the Supreme. Court in Union of India (UOI) Vs. Col. J.N. Sinha and Another, provide a clear guideline (at p. 42 of AIR):--
"It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purposes for which it is conferred and the effect of the exercise of that power."
As indicated earlier, the Government resorts to action u/s 6A of the Act when it is of the opinion that remedial and preventive measures are immediately required for eradicating the noxious pests from the cotton crop. Before doing so, the Government always takes into consideration the reports submitted by the experts based on their scientific observations. In actual practice, it is they who recommend immediate remedial measures to be adopted. Even otherwise, being public servants and acting in discharge of their official duties, law presumes that they would make such reports only when the cotton crop is required to be saved from a real catastrophe. It is a matter of common knowledge that noxious pests can multiply to alarming proportions within a short span of time and have to be destroyed within a short span of time and have to be destroyed within a shortest possible time. Thus, the time factor involved in the process prima facts negatives the practical efficacy of the introduction of principles of natural justice.
The operation involved is certainly in the nature of a compulsory service to the occupiers of land. Lay farmers cannot be expected to forewarn themselves of this type of a danger to their crops. The menace erupts at one place or places and soon spreads to the areas scattered far beyond. Even if the appearance of these pests is noticed by some farmers, they may not be able to assess the magnitude of the danger. Some of them being more vigilant may adopt some measures of eradication on their own and feel satisfied even though the danger is not completely eradicated. Some may resign themselves to fate and some may not be in a position to incur the expenditure required at that particular hour. In these circumstances it is not only proper but also necessary for the Government to intervene without any loss of time. Whether out of ignorance or out of poverty or sheer recalcitrance the occupiers of land may not like to have this service but it is too late in the day to suggest that this service cannot be forced on them. In the The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., , it was observed (at p. 295):
"We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees."
It is no doubt true that the aforementioned observations were made by the Supreme Court while distinguishing a fee from a tax but the cost of aerial spraying also represents a quid prop quo for a service. If the Legislature, for good and valid reasons, lays down that an occupier of land must receive a compulsory service under given circumstances, it is not open to him to turn round and say that he does not need it. Nor is it open to this Court to override the opinion of the experts and the decision of a responsible Government and to hold that such a service is really not needed by the occupiers of land.
We may now consider the results which might follow on account of the inaction of the State Government to undertake immediate remedial measures. Firstly, it could validly be accused of not obeying a legislative mandate contained in this section. Secondly, the crops grown in a large area might be completely wiped out resulting in loss of income to the farmers and some revenue to the State Government. If the principles of natural justice are introduced by implication in Section 6--A of the Act, the ultimate decision to be taken by the Government would have to be sufficiently delayed for, a notice has to be a reasonable notice so that the person concerned may have enough time to prepare his case to be presented before the State Government. If this procedure is adopted, the cotton crop might itself suffer such damage which is beyond repair. In the ultimate analysis, the interests of the occupiers of land alone would become a casualty in the process.
In short on the basis of the tripple test laid down by the Supreme Court of India it would neither be safe nor proper for us to engraft principles of natural justice in Section 6--A of the Act by a process of judicial interpretation. Even otherwise, it can safely be assumed that the Legislature itself appears to have negatived the application of such principles to this situation. The unamended Act did provide that an authorised Inspector should enter upon the land after notice to its occupiers and he should undertake remedial measures only on their failure to do so. But when it authorised the State Government to take immediate action it advisedly refrained from making any provision of notice in Section 6-A of the Act. We are accordingly of the view that this, section does not require the State Government to issue any prior notice to the occupiers of land which it undertaken to adopt remedial measures at their cost.
For the proposition that this section was violative of the fundamental right of the petitioners as guaranteed to them under Article 19(1)(f) of the Constitution, reliance was placed on State of Bhopal and Others Vs. Champalal and Others, . In that case, the Supreme Court was concerned with the constitutional validity of Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954. Section 4 of that Act lays down that if the Government is of the opinion that any are is infested with Kans it may, by notification, declare such area giving full particulars thereof to be a Kans area for the purposes of that Act. After the issue of the notification, Reclamation Officer is empowered to enter upon the land and take possession thereof for such period as may be necessary for the purpose of eradication of Kans therefrom. Section 6(2) of that Act lays down that no person shall use the notified land for any purpose till such date as the Reclamation Officer after 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 the taking over in lawful possession of the same or was entitled to such possession. The proviso appended to this sub--section provides that no revenue shall be charged from the land--owner for the period during which the land has so remained in the possession of the Reclamation Officer. There is no provision in that Act for entertaining objections to the effect that some areas were not Kans affected as the same had been admittedly cleared on an earlier occasion. In this situation, the Supreme Court held the provisions of sub--sections (1) and (4) of Section 4 of that Act as being arbitrary and imposing unreasonable restrictions on the right of a citizen to hold and enjoy property within the meaning of article 19(1)(f) of the Constitution. Apparently the ratio of the case decided by the Supreme Court does not apply to the facts and circumstances of the instant case. Firstly, the land remains in the occupation of its occupier. Secondly, eradication of insect pests from the land cannot be equated with its eradication from Kans weeds. The weeds may take sometime to grow and may be eradicated from land even when they are lying fallow but insect pests are much more menacing and they may wipe out the entire crop in a short span of time. A law which allows the latter to be destroyed before they assume menacing proportions cannot be held to travel beyond the ambit of reasonable restrictions on the right to enjoy property.
We find no justification to hold that Section 6--A of the Act confers wide and arbitrary powers on the Government to charge spraying expenses from the occupiers of land. A perusal of sub--section (2) of this Section shows that only the cost of the measures carried out are payable by an occupier of land in such proportion as may be determined by the State Government. The use of the word ''cost'' clearly implies that the Government will perform the spraying operations on no--profit--no--loss basis. The statute gives sufficient guidelines to control the actions of the Government. In the Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, , it was observed by their Lordships of the Supreme Court--(At p. 1244).
"What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further, it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation."
18-19. The law does not require that the Legislature itself should lay down every minor detail about the manner in which the policy of the statute should be worked out. The necessary guidelines commensurate with the wisdom and responsibility of the delegate need only be laid down. The delegate in the instant case is the responsible State Government and the use of the word ''cost'' is sufficiently indicative of the Legislative intent. Nor is it open to us to assume that a democratic Government which has to periodically face a predominently rural electorate shall not perform its duty in accordance with the letter and spirit of the law. In Pannalal Binjraj Vs. Union of india (UOI), , it was observed as under (at p. 408):
"It may also be remembered that this power is vested not in minor officials but in top--ranking authorities like the Commissioner of Income--Tax and the Central Board of Revenue who act on the information supplied to them by the Income--Tax Officers concerned. This power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. (Vide Matajog Dobey v. H. C. Bhari, AIR 1965 SC 44. There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. (Vide People of the State of New York v. John E. Van De Carr. etc. (1905) 199 US 552: 50 L E 305. It has also been observed by this Court in A. Thangal Kunju Musaliar Vs. M. Venkitachalam Potti and Another, , with reference to the possibility of discrimination between assesses in the matter of the reference of their cases to the Income--tax Investigation Commission that '' it is to be presumed unless the contrary were shown, that the administration of a particular law would be done "not with an evil eye and unequal hand" and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would not be discriminatory''.
This presumption, however, cannot be stretched too far and cannot be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory treatment; (vide Gulf, Colorado & S. F. R. Co. V. W. H. Ellis (1897) 165 US 150 : 41 L E 666 . There may be cases where improper execution of power will result in justice to the parties. As has been observed, however, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are not with ample remedies under the law. (Vide Dinabandhu Sahu Vs. Jadumoni Mangaraj and Others, . What will be struck down in such cases will not be the provision which invests the authorities will such power but the abuse of the power itself."
If the State Government decides to make some profit out of this venture or does not apportion the cost in an equitable manner it shall be open to the affected occupiers of land to challenge that action of the State Government but the section itself cannot be held as unconstitutional on the ground that it confers wide and arbitrary powers on the State Government.
Last submission made was that the State Government or the authority empowered as such had not taken any decision contemplated by Section 6--A of the Act. The learned Counsel appearing on behalf of the State of Haryana has placed before us the concerned office files which reveal that the Chief Minister of the State sanctioned these operations on being informed by proper authorities that immediate serial spraying that immediate aerial spraying was needed to save the cotton crop. This order was passed on August 9, 1977. It is, therefore, obvious that the occupiers of land cannot be burdened with the cost of aerial spraying, if any, conducted before that date. They shall, however, be under an obligation to pay the cost of aerial spraying conducted after August 9, 1977, in respect of the standing cotton crop.
No other point was raised before us.
For the reasons mentioned above, these petitions deserve to succeed only to the extent indicated above and we order accordingly. In the circumstances, however, there shall be no order as to costs.
A.D. Koshal, Ag. C.J.
I concur.
D.S. Tewatia, J.
I also concur.
Bhopinder Singh Dhillon, J.
I agree.
Surinder Singh, J.
I agree.
Order accordingly