JUDGMENT
Aloke Chakrabarti, J.
1. This writ petition was filed challenging the order dated January 8, 2003 passed by the West Bengal Land Reforms and Tenancy Tribunal dismissing the application filed by the present writ petitioners against an appellate order. The said appellate order was passed against the order of the Revenue Officer determining that the Raiyat Sm. Kalyani Pandey and the members of her family being the present applicants held 35.16 acres of land and since Raiyat had a four members family, she was entitled to a ceiling area of 17.30 acres and order of vesting was passed in respect of the balance land subject to result of the Special Leave Petition pending before the Supreme Court on the question of vires of the amendments of the West Bengal Land Reforms Act made in 1981 and 1986.
2. Heard Mr. Saktinath Mukherjee, learned counsel for the petitioners and Mr. Pulak Ranjan Mondal learned counsel for the respondents. As the decision in the present writ petition may have serious consequence if the contention of the petitioners is accepted, and the question raised by the petitioners required further consideration the matter was again fixed for ‘Further Hearing’ upon notice to the learned Advocate General and both sides were heard.
3. Contention of Mr. Mukherjee is that West Bengal Land Reforms Act, 1955 (hereinafter referred to as Principal Act) was enacted indicating in Section 1(3) of the said Act that the said Section 1 was to come into effect immediately and “remaining provisions” of the Act were to come into force upon publication of notification in Official Gazette. By various notifications various provisions of the said Act were enforced. But when the West Bengal Land Reforms (Amendment) Act, 1971 was passed, Section 1(2) of the said Amending Act provided for similar provisions for its enforcement mentioning that the provisions of the said Act was to come into force on such date as the State Government may by notification in the Official Gazette appoint, and different dates may be appointed for different provisions of the Act and any reference to the commencement of any provisions of the Act shall be construed as referring the date on which that provision comes into force. By a subsequent amendment being the West Bengal Land Reforms (Amendment) Act, 1972 various provisions of the Principal Act were omitted, and some provisions were substituted or inserted. Chapter II-B was inserted in the Principal Act by Section 13 of the Amending Act of 1972. This Amending Act was enforced as mentioned in Section 1(2) of the said Amending Act of 1972 which shows that Section 13 thereof was deemed to have come into force on the 15th of February, 1971. The said 15th February, 1971 was the date prescribed by the notification dated 13th February, 1971 as appointed date for enforcement of Section 13 of the Amending Act of 1971 inserting Chapter II-B.
4. Mr. Mukherjee, learned counsel for the petitioners contended that the said Principal Act is a conditional legislation by reason of provisions of Section 1(3) thereof. Such legislation though is valid in the eye of law but is not enforced until the prescribed condition is satisfied which in this case is publication of notification in Official Gazette. Therefore, when Section 13 of the amending Act was enforced from 15th of February, 1971, said Chapter II-B was inserted in the Principal Act but same was not enforceable until a notification is issued under Section 1(3) of the Principal Act because the Principal Act is conditional legislation. The contention of the learned counsel for the applicants is that as the said notification has never been published, the said Chapter II-B is not in force and the proceedings cannot be taken up under the said Chapter until such a notification is published in Official Gazette and makes the provisions of Chapter II-B so inserted enforceable.
5. Contention of Mr. Mondal, learned counsel who initially argued, for the respondents was that such a point was not taken in the petition before the tribunal and the factual aspect as regards publication of the notification cannot be urged in the present writ petition challenging the said order of the tribunal. Reference was made to the materials on record to show that though commencement of Chapter II-B was under challenge but present objection was not taken at all by the petitioners. In the earlier proceeding before this Court also such point had never been taken and therefore, the petitioners are not entitled to urge such a point now.
6. The learned Advocate General has argued for the respondents that Section 6 of the West Bengal General Clauses Act provides how a legislation can be made effective. Such a legislation comes into effect either when the assent is given by the President of India or the notification is published in the Gazette as prescribed and unless a date is specified in the statute itself or in the notification, the legislation does not become effective. It has been argued that various provisions of the Principal Act came into force on various dates between 30th March, 1956 and 25th September, 1969 and particulars of 10 such notifications have been referred to for showing that all the sections of the Principal Act have been given effect to. It is contended by the learned Advocate General that when all sections of the Principal Act were enforced, the notification mentioned in Section 1(3) was no more required. The 1971 Amending Act was enforced by publication of a notification in the Gazette and the 1972 Amending Act itself shows the dates of effect of various sections of the said Amending Act. Therefore, by virtue of the said provisions the said Chapter II-B was inserted in the Principal Act on 15th February, 1971 and thereafter no further publication of a notification in terms of Section 1(3) of the Principal Act was required. Mr. Roy argued that language used in Section 1(3) of the Principal Act itself shows that “remaining provisions” of the Act were to be given effect to by publication of notification in Official Gazette and the expression “remaining provision” means the provision in the said Principal Act already existing on the date Section 1 was enforced and it could not include the provisions inserted in the Principal Act by subsequent amendments. The meaning of the word ‘remains’ in the Webster’s Comprehensive Dictionary of the English Language was relied on and reference was also made to the judgment in the case of Shamrao v. District Magistrate and Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd. .
7. Learned Advocate General further contended that the amending Acts of 1971 and 1972 are later Acts in respect of the Principal Act and therefore, the provisions of Section 1(3) of the Principal Act cannot be made applicable in respect of such later laws as the same is repugnant to the later law. Both the said amending Act of 1971 and 1972 having been enforced on specified date of enforcement of the provisions mentioned therein including Chapter II-B was complete and thus become enforceable from the same date and such enforcement is not dependant upon any further notification under Section 1(3) of the Principal Act. Reference was made to the judgment in the case of Niranjan Khanna v. Shyamal Kumar Mukherjee reported in 1998(2) CHN 297 for contending that in this case the said question was not decided.
8. After considering the aforesaid contentions, we find judgment in the case of Inder Singh v. State of Rajasthan relied on by the petitioners upheld validity of a conditional legislation holding that appropriate legislation when enacts a law, can authorise an outside authority to bring it to force in such area or at such time as it may decide. Law is clear that provisions of present conditional legislation are enforced upon publication of notification which is the condition prescribed in the legislation as a pre-condition for enforcement of the said provisions. The Principal Act shows that except Section 1 thereof, remaining provisions were to be enforced on publication of notification in Official Gazette. Strong reliance was placed on the judgment in the case of Niranjan Khanna (supra) wherein the same point was considered by another Division Bench. On perusal of the said judgment, it is apparent that the question was considered in the said judgment but was not decided by the said Bench and it was recorded in the said judgment that the said point was left open.
9. In the present case we find that even if question of giving effect to provisions inserted by 1971 Amending Act is conditional, but so far as the 1972 Amending Act is concerned no such question can be raised. The difference in language of Section 1(2) of both the Amending Acts is indictive. In Section 1(2) of 1971 Amending Act coming into force of the different sections thereof was dependant on publication of further notification by the State Government in Official Gazette. But Section 1(2) of the 1972 Amending Act clearly states the dates of enforcement of different sections of the Amending Act. Chapter II-B inserted by Section 13 thereof was deemed to have come into force on 15th February, 1971 i.e. the date when by 1971 amending Act the said Chapter II-B was brought into effect by notification referred therein.
10. The said Chapter II-B, therefore, came into force on 15th February, 1971. Then it cannot be accepted that the said Chapter II-B came within the meaning of the expression “remaining provisions” used in Section 1(3) as on March 30, 1956 when Section 1 of the Principal Act came into force. The said expression “remaining provisions” in Section 1(3) meant the provisions of the Principal Act left remaining when Section 1 came into force. On that day remaining provisions could not include Chapter II-B inserted long thereafter with effect from 15th February, 1971. Neither the Amending Act of 1971 or of 1972 nor the Principal Act contain any provision from which a contrary conclusion can be reached. The Amending Act of 1972 is not a conditional legislation and therefore provision inserted thereby does not require notification for bringing the same into force.
11. In this connection, it is helpful to consider the law relied on by the respondents as decided in the case of Ram Narain (supra) as quoted herein below; while considering the dictum noticed in the case of Shamrao (supra):-
“It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part.
But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication.”
12. The above finding considering also the law decided in the case of Shamrao (supra) also supports out above conclusion.
13. The contention of the petitioner that concept of exhaustion by one user has been deprecated in the cases of Brij Sunder Kapoor (supra) and Gurucharan Singh (supra) does not help in deciding the present issue as this is not a case of exhaustion of power by one user or expiry of prescribed period. But herein the requirement of notification under Section 1(3) of the Principal Act does not apply to provisions inserted by amendment long after the Section 1 of Principal Act was enforced as it could not be treated as a remaining provision mentioned in Section 1(3).
14. It has been argued on behalf of the petitioner that insertion of Chapter II-B was effective when the amending Acts were notified but its commencement was dependant upon notification under Section 1(3) of the Principal Act. Reliance was placed on the judgment in the case of Manickchand v. Elias Saleh Mohammad and particularly on paragraph 18 thereof. In the said judgment the expression “Commencement” as defined in Section 3(13) of the General Clauses Act was considered and it was held that there is a distinction between an Act coming into operation and the commencement of the Act and the date of coming into operation is not necessarily the date of commencement. This law was considered to resolve the dispute therein whether document in question was made prior to commencement of the concerned statute in the particular area.
15. But in the present case Chapter II-B, as already held hereinabove, came into operation and commenced immediately when amending Acts particularly the Amending Act of 1972 came into force by statutory provision contained in Section 1(2) of the said amending Act with effect from 15th February, 1971 without any requirement of further notification under Section 1(3) of the Principal Act as such notification was meant for only provisions of the Principal Act remaining on the date of its commencement and such “remaining provisions” on that date could not include Chapter II-B inserted long thereafter.
16. The judgments as regards validly of conditional legislation and requirement of satisfaction of such condition, relied on by the petitioner in the cases of the State of Orissa v. Chandrasekhar Singh and State of Tamilnadu v. K. Sabanayagam reported in AIR 1998 SC 344 also do not help us in deciding this case in view of our finding herein as regards newly inserted Chapter II-B not coming into the expression remaining provision.
In view of our above finding the writ petition fails and is hereby dismissed.
Sadhan Kumar Gupta, J.
17. I agree.