Syed Wasif Ali Meerza vs State of West Bengal

Sinha, J.—This is an application by the Nawab Bahadur of Murshidabad. The position is as follows:

The present Nawab Bahadur of Murshidabad holds properties, including properties in the districts of Murshidabad, Birbhum, Midnapore and Malda. On March 12, 1891, the grandfather of the Petitioner, who then claimed to be the Nawab Nazim of Bengal, Bihar and Orissa, entered into an agreement with the Secretary of State for India in Council, relinquishing for himself, his heirs and his successors, all claims to the position and dignity of Nawab Nazim, in consideration inter alia of a covenant that he and his heirs would go on holding and enjoying certain properties including the aforesaid properties, for ever. Consequent upon the agreement, an Act was passed by the Indian Legislature known as the Moorshidabad Act (XV of 1891) giving legislative recognition to the terms of the said agreement. The preamble of the Act shows that it was an Act to give effect to an indenture between the Secretary of State and the Nawab of Murshidabad. Section 5 of the said Act is as follows:

All property, moveable and immoveable, mentioned in the said indenture, or in any of the schedules thereto or in any addition which u/s 3 may from time to time be made to those schedules or any of them, shall descend and, subject to the provisions of the said indenture, be enjoyed for ever by the Nawab Bahadoor of Moorshidabad for the time being.

The provisions of the said Act have ever since been in force. As a matter of fact, a Receiver has been and still is, in possession of the property, in terms of the said Act.

On February 12, 1954, the West Bengal Estates Acquisition Act, 1953 (West Ben. I of 1954), came into operation. This Act inter alia provides for the acquisition of all estates and rights in such estates. It is not denied that in respect of the properties which are the subject-matter of this application, the Nawab Bahadur would have the position of an intermediary if the Act applied. On or about August 16, 1954, in exercise of the power vested by the said Act, notifications have been issued, vesting in the State of West Bengal all the estates and rights of the intermediaries in the districts of Murshidabad, Birbhum, Midnapore and Malda, including the properties of the Petitioner. The notification was published on November 11, 1954.

This Rule was issued on November 23, 1954, calling upon the opposite parties to show cause why a writ in the nature of mandamus should not issue directing them to refrain from giving effect to the provisions of the West Bengal Estates Acquisition Act, in respect of the properties covered by the Moorshidabad Act (XV of 1891), or which come within the scope of the Act and/or why such order or orders should not be made as to this Court may seem fit and proper.

At the commencement of his argument Mr. Ghose on behalf of the Petitioner took three points which are as follows:

(1) Has the West Bengal Estates Acquisition Act, 1953, over-ridden the Moorshidabad Act?

(2) If so, is this over-riding valid, legal or constitutional?

(3) If these points are decided against the Petitioner, then whether Sections 11 and 46 of the West Bengal Estates Acquisition Act, 1953, are ultra vires being colourable exercise of the legislative powers of the State?

In fact, however, Mr. Ghose has confined himself in his argument to one point only; and it is this: He says that the Moorshidabad Act is a special Act and that the West Bengal Estates Acquisition Act, 1953, is a general Act which does not purport to affect the special Act. As such, the Moorshidabad Act remained untouched, and consequently the properties of the Petitioner cannot be acquired under the provisions of that Act. Mr. Ghose conceded that the legislature in its own sphere is supreme, and is subject only to the provisions of the Constitution. He has conceded that if the West Bengal Estates Acquisition Act, 1953, in express words repealed the provisions of the Moorshidabad Act, it would have been perfectly competent, and he would not have anything to say. But, according to him, it has not done so, and as a consequence his client was entitled to presume that it was not the intention of the legislature to supersede or repeal or nullify the provisions of the Moorshidabad Act, which is based on a solemn agreement with the then Government, ensuring that the Nawab Bahadur of Murshidabad and his heirs would enjoy certain properties in perpetuity. In his argument nothing has been heard of Sections 11 and 46 of the West Bengal Estates Acquisition Act, and I need not deal with them.

In short, Mr. Ghose''s argument is that the Murshidabad Act is an Act meant to provide for an individual. Therefore, it is a special Act. It provides for certain privileges granted to an individual and also imposes certain restrictions. According to him, such an Act cannot be held to be repealed by a general Act. The first case cited by Mr. Ghose is Corporation of Blackpool v. Starr Estate Co. Limited (1922) 1 A.C. 27. The facts of that case are as follows.

The Blackpool Improvement Act, 1917, Section 70 enacted that the provisions of the section should, unless otherwise agreed in writing, apply for the benefit and protection of a certain company, as owners of the land referred to in the section. By its terms, the owners were to sell and the corporation was to buy, the land therein described, at a price to be determined by arbitration in a certain manner. In 1919, a general Act was passed, viz., the Acquisition of Land (Assessment of Compensation) Act, 1919, which provided that whereby any statute whether passed before or after the passing of the Act, land was authorised to be acquired compulsorily by any local authority, any question of disputed compensation was to be determined in the manner provided by the Act and that the provisions of the Act whereby the land was authorised to be acquired, so far as it was inconsistent with that Act, shall cease to have effect. The question was whether the provisions of the latter Act of 1919, which was a general Act, had repealed and superseded the provisions of the special Act of 1917. According to the majority judgments delivered by Viscount Haldane, Viscount Finlay and Viscount Cave, the general Act of 1919 did not repeal or supersede the special Act of 1917. Lord Shaw, however, differed upon this point and held that the Act of 1919 was a derogating Act and was meant to be a derogating Act, intended to invade, modify and repeal all existing codes which interfered with its provisions. He, however, agreed with the majority judgment, in as much as the 1919 Act was meant to apply to compulsory acquisitions, whereas the 1917 Act and its particular provisions embodied in Section 70, were not meant to apply to any compulsory acquisition, but to acquisitions based upon agreement.

The next case cited by Mr. Ghose is Rex v. Minister of Health (1936) 2 K.B. 29. By a local Act entitled the "London Open Spaces "Act, 1893", Hackney Marshes was vested in the London County Council, as and for an open space, for the perpetual use by the public for exercise and recreation. In 1925, a general Act was passed, viz., "the Housing Act, 1925" which enabled the London County Council to frame schemes for housing, after obtaining the consent of the Minister for Health. In 1935 the London County Council decided to appropriate a part of the Hackney Marshes for a housing site. The question was whether the Housing Act, 1925, permitted this course to be taken in spite of the obligation imposed on the Council by the Act of 1893, to maintain the Marshes as an open space. It was held that it did not. But the basis was a technical rule, viz., that the statute which repealed the provisions of an earlier Act, could not have the effect of repealing an intermediary enactment. The other point was also raised, based on the maxim "generalia "special bus non derogant". Lord Hewart observed that the maxim referred to above has been the subject to an almost bewildering mass of authority. The learned Judge, however, pointed out that the subject-matter of the Act of 1893 was a peculiar kind of land, viz., Lammas Lands to which the existing Open Spaces Acts did not apply. He, therefore, could not find anything in the Act of 1925, which indicated an intention on the part of the Government to effect so radical a change in the Act of 1893 so as to permit the London County Council to deprive Hackney of an open space in exchange for lands 7 miles away at Chigwell, an entirely different area.

The learned Advocate-General on the other hand has referred to the case of The Merchant Taylors Co. v. Truscott (1856) 25 L.J. 173. It appears that there was a custom in the City of London which authorised the raising of a building on an old foundation, even if it obstructed the passage of light and air through the ancient windows of a neighbouring house. Statute 2 and 3, William IV, c. 71, better known as Lord Tenterden''s Act, laid down that if a person enjoyed for the period of 20 years and without interruption the access of air and light, then there would be an easement thereto. The point was whether this Act abrogated the customary law. In Section 3 of the Act, were incorporated the words "any local usage or custom notwithstanding". It was argued that this was in a general form and did not say "any custom of "London and York notwithstanding".

Coleridge, J. negatived this contention and said as follows:

In the cases cited respecting the effect of later acts in repealing former statutes, the arguments bore upon the principle, what was the intention of the legislature which is to be gathered from the words of the act of parliament. If it be so gathered that the former Act was to be repealed, the repeal took place. Apply that doctrine to the present case, Mr. Smith has very properly admitted that had the words of the section been "any custom of London and york notwithstanding", the custom would have been done away with, however it might have been sanctioned by previous acts of parliament. We have asked what other meaning the legislature could have had in inserting these words, "any local usage or custom to the contrary notwithstanding", unless they were meant to apply to such a custom as this of London. No satisfactory answer has been given to that question.

Creswell, J. pointed out that Section 3 contained words that were decisive. "I cannot conceive", said the learned Judge "any "stronger words. They must mean to take away customs "existing somewhere. Why should they take away customs in "York more than in London?"

The next case cited is Charnock v. Merchant (1900) 1 Q.B. 474. The Appellant in this case was charged before a Court with an offence under the Prevention of Cruelty to Children Act, 1894. That Act permitted the accused to give evidence on his own behalf. The accused was asked in cross-examination whether he had not been previously convicted of a similar offence and answered that he had. The Criminal Evidence Act, 1898, provided that no witness shall be asked or required to answer any question tending to show that he had been convicted of any other offence than that with which he is charged. By Section 6 of the 1898 Act, it was provided that "this Act shall apply to all criminal proceedings, "notwithstanding any enactment in force at the commencement "of the Act". The Court convicted the Appellant. It was, however, held on appeal that the evidence of the Appellant''s previous conviction was wrongly admitted and that the 1898 Act applied and the conviction was bad. The learned Judges held that the Criminal Evidence Act, 1898, had established one rule to be observed in all criminal cases, and that, therefore, the provisions in previous enactments must be taken to have been repealed and superseded. I think the observation of Lord Hewart in Rex v. Minister of Health (Supra) that the cases upon this point are bewildering is to a certain extent justified. It would therefore, be necessary to see the position as summarised in the text books. The learned Advocate-General has referred me to Craies on Statute Law, Fifth Edition, p. 248. There the position is summarised there as follows:

When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms. Barker v. Edger (1898) A.C. 748, 754. An Act directed towards a special object or special class of objects will not be repealed by a subsequent general Act embracing in its generality those particular objects, unless some reference be made, directly or by necessary inference, to the preceding special Act. Bristol Corporation v. W.D. Canning (1906) 95 L.T. 183. A general statute may however, repeal a particular statute if the special enactment and the general Act are absolutely repugnant and inconsistent with one another. Thus where it was intended to make one general law superseding all local laws, then the local laws ceases to have effect. Bramston v. Colchester Corporation (1856) 6 E & B. 246 : 119 E.R. 856; E. Pellas and Co. v. Neptune Marine Insurance Co. (1880) 5 C.P.D. 34; Great Central Gas Consumers Co. v. Clarke (1863) 13 C.B.N.S. 838 : 143 E.R. 331.

Reference was next made to Maxwell on the Interpretation of Statutes, 9th Edition, p. 183. The position has been summarised there as follows:

A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, "where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation... that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so Seward v. Vera Cruz, (1884) 10 AC. 59, 68. In such cases it is presumed to have only general cases in view, and not particular cases which have already otherwise been provided for by the special Act, or, what is the same thing, by a local custom. Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature had been turned to the special act and that the general one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act.

The learned Advocate-General says, and I think the argument is sound, that the matter rests on intention as is to be gathered from the wordings of the Act itself. The preamble of the Estates Acquisition Act, 1953, shows that it was intended to acquire estates or rights of intermediaries therein and of certain rights of raiyats and under-raiyats. Section 4 provides that after a notification to that effect, all estates and rights of every intermediary in such estate shall vest in the State free from all incumbrances. I do not think that the intention of the Act is obscure. The idea is to abolish the zemindary system introduced by the Permanent Settlement and to make the State, as representing the people, the owner of the land, thus enabling it to deal directly with the tiller of the soil and to abolish all intermediary interests. Section 3 says that the provisions of the Act shall have effect "notwithstanding anything to the contrary "contained in any other law or in any contract express or implied "or in any instrument and notwithstanding any usage or custom "to the contrary." I do not think that the intention could be expressed in any better way. All laws, contracts, usages or customs which are in conflict with the provisions of the Act are swept away. If that is so, it is impossible to hold that there existed any reservation with regard to the Nawab of Murshidabad or his estate. The idea is to affect the right in all lands throughout the State (except the City of Calcutta which is expressly excluded). In fact it is a provision of a sweeping nature which is intended to abolish the existing state of things and to usher in a new era. Under the circumstances, it is impossible to hold that there was no intention on the part of the legislature to affect the Moorshidabad Act, which had purported to preserve the rights of the Nawab or his heirs for ever.

Apart from the Moorshidabad Act, it is obvious that throughout the State there are many other rights based on custom, like primogeniture etc., which will be affected. It is expressly in order to avoid the colossal task of mentioning every kind of special right whether based on law or custom that the general provision in Section 3 was introduced. It is no longer tenable to argue that such special rights were not intended to be affected and that they continue in operation. Such is not the case.

Mr. Ghose has not argued that the present legislature was incompetent to affect the rights of the Nawab of Murshidabad under the Moorshidabad Act although that Act ensured a certain right to the Nawab and his heirs "for ever". Consequently it is not necessary for me to refer to this aspect, although I might say that the case of Thakur Jagannath Baksh Singh v. The United Provinces (1943) F.C.R. 72 : 48 C.W.N., F.C. 25., has set such a contention at rest.

I must mention here that although Mr. Ghose has argued only this point, he has said that he would adopt the arguments made by Mr. Das. Mr. Panda and Mr. Chowdhury in the other cases where arguments have been made impugning the Estates Acquisition Act, and would like to take advantage of it, if those cases succeeded. I regret to say that they have not.

For the reasons I have mentioned, the application fails and must be dismissed. The rule is discharged. All interim orders are vacated. There will be no order as to costs.

The operation of this order will be held in abeyance for three weeks from date to enable the Petitioner to prefer an appeal, as prayed for.