ORDER
Bose, J.
1. This is an application under Article 226 of the Constitution of India for an appropriate writ directing the opposite parties to forbear from depriving the petitioner of its property at Kan-chrapara which has been sought to be acquired under the West Bengal Land Development and Planning Act, (Act xxI of 1948) 1948.
2. The petitioner is a society formed and registered under the Societies Registration Act of 1860. This society owned and was possessed of 7,997 acres of land at Kanchrapara out of which 4,937 acres were in has possession of the society and the rest was tenanted land. It appears that 3,57871 acres of land out of 7997 acres were received by way of donation from philanthropic persons. The petitioner society had established six branches for carrying out the purposes of the society at Kanchrapara, Sodepur, Lilooah, Ovaria, Chakolia and Hazaribagh. In the year 1943-44, 5,000 acres of land were requisitioned by the Government under the Defence of India Rules for the use of the United States Army. 2,997 acres were thereafter left in the possession of the society, out of which 1218 acres were in the possession of tenants and the remaining portion, 1,778 acres, remained in the possession of the society. Out of this land which remained in the possession of the society, 1,000 acres of land form a compact block and the remainder is scattered over several mouzas. The subject-matter of this application is these 1,000 acres of land.
3. It appears that in the year 1945 an informal proposal was made by the Central Government for derequisitioning the land, but at the instance of the Provincial Government this idea of derequisition was given up and the Government began to run a tuberculosis hospital and the Government sponsored a scheme for establishment at Kanchrapara of a town. In 1947, however, two plots of land, of which there is some dispute as to the area, were in fact derequisitioned by the Government. Thereafter, on 25-1-1949, a Notification made under Section 4 of the West Bengal Land Development and Planning Act 1948, was published in the Calcutta Gazette of 3-3-1949. By this Notification, the Government purported to acquire 3,053’45 acres of land which included the said compact block of 1,000 acres of land. On 2-12-1949, the Government purported to make a declaration in respect of the acquired land under Section 6 of Act xxI of 1948.
On 9-2-1950, a Notification was issued by the Collector of Nadia that the Government had taken settled decision under Section 6 of Act xxi of 1948 to acquire the said 3,05345 acres of land mentioned in the Notification and on the expiry of three days from the service of notice the said Government would, under Section 8 of the Act, take possession of all waste and arable lands, beels, baors, tanks and other watery areas falling within the lands mentioned there. This Notification was not followed up in its entirety, but the Government took possession of only one beel known as Kulia beel, where, it appears that the Government has subsequently established a fishery. Upto May, 1951, nothing further was done, but in the month of May, 1951, the officers of the Collectorate of Nadia made certain demarcations in respect of the acquired land.
4. On 24-7-1951, the Rule Nisi was issued in this case and it appears that on 18-9-1951, the Government issued a Notification releasing an area of 298.31 acres from the acquisition.
5. It has been contended by Mr. Banerjee, appearing for the petitioner, that before the declaration under Section 6 of Act 21 of 1948 was made by the Government, the petitioner was not given any opportunity of making representations against the scheme sponsored by the Government, although this is specifically enjoined by Rule 5 (2) of the Rules known as West Bengal Land Development and Planning Rules, 1948, which were made in pursuance of Section 14 of Act 21 of 1948.
6. Section 5 (1) of Act 21 of 1948 is as follows:
“The Provincial Government may direct the prescribed authority, or, if it so thinks fit in any ease, authorise any Company or local authority, to prepare, in accordance with the rules, a development scheme in respect of any notified area and thereupon such scheme shall be prepared accordingly and submitted, together with such particulars as may be prescribed by the rules, to the Provincial Government for its sanction.”
(2) “A development scheme submitted to the Provincial Government under sub-section (1) may be sanctioned by it either without any modification or subject to such modification as it may deem fit.”
7. Section 6 (l) of the Act is as follows:
“When a development scheme is sanctioned under sub-section (2) of Section 5 and the Provincial Government is satisfied that any land in the notified area, for which such scheme has been sanctioned, is needed for the purpose of executing such scheme, a declaration to the effect that such land is needed for a public purpose shall, unless already made in pursuance of Section 7, be made by the Provincial Government.”
8. Section 8 (a) runs as follows:
“If in any case the Provincial Government so directs, the Collector may, at any time after declaration is made under Section 6, take possession in accordance with the rules of any beel, baor, tank, or other watery area, or any other waste or arable land in respect of Which the declaration is made and thereupon such land shall vest absolutely in the Crown free from all incumbrances.”
9. It is thus clear from the said sections that a scheme has to be prepared in accordance with the rules framed under Section 14 of the Act and such scheme has to be submitted to the Provincial Government for sanction and it is after the development scheme is sanctioned in terms of Section 5 (2) of the Act, that the Government can make a declaration under Section 6 and it is only when a valid declaration under Section 6 has been made under the Act that the Government can proceed to take possession under Section 8 (a).
10. Rule 5 (2) of the Land Development Rules provides as follows:
“Before submitting any scheme prepared under sub-rule (1) to the Provincial Government, the committee shall cause a local enquiry to be held in respect thereof by the Collector of the district concerned, or any other officer authorised by the Collector in this behalf giving all persons interested an opportunity of making their representations, if any against the scheme and shall record its own recommendations.”
11. Although this Rule specifically enjoins that a local enquiry has to be held and persons interested in the land should be given sufficient opportunity of making representations against the scheme, admittedly no such local enquiry was held in this case, nor was any notice given to the persons interested including the petitioner for making any representation against the scheme. The petitioner in para. 17 of the petition has made this point a ground of objection to the validity of the declaration made under Section 6 of Act 21 of 1948. In the affidavit-in-opposition (para. 15), which purports to be an answer to para. 17 of the petition, it is stated as follows:
”That the petitioner was fully apprised of the notification under 9. 4 and declaration under Section 6 as hereinbefore mentioned and that as such the petitioner had ample opportunity to raise objections against the said orders of acquisition.”
12. It is nowhere stated in the counter-affidavit that any notice, whether individual or general, was given to the persons interested under Rule 5 (2), giving them an opportunity to make representations against the scheme, nor is it suggested anywhere that any local enquiry, as contemplated by Rule 5 (2), was ever held in connection with the preparation of the scheme. It is clear, therefore, that the declaration under Section 6 has not been validly made and as Section 8 (a) of the Act presupposes the existence of a valid declaration under Section 6, it must be held that the Notification under Section 8 (a) is also bad. (See also all the different sub-rules of Rule 5 of Land Development Rules).
13. It has been submitted by the learned Advocate appearing for the opposite parties that inasmuch as the Notifications under Sections 4 and 6 were made before the Constitution of India came into force, the petitioner cannot take advantage or Article 226 of the Constitution of India for the purpose of challenging the validity of those Notifications, because Article 226 is not made expressly retrospective and, therefore, it cannot have retrospective operation. If the Notification had been otherwise a good and a valid notification and had been made after complying with the requirements of Rule 5 (2), then there can be no doubt that such a Notification would not be open to challenge, but, as pointed out before by me, the Notification under Section 6 was ultra vires and any step taken to enforce such Notification or any action taken pursuant to such Notification, in my view, can be challenged under Article 226 of the Constitution of India. Being an ultra vires Notification it gives a recurring cause of action to the petitioner, and therefore this Court has power under Article 226 to give relief ‘to the petitioner in this case. (See, Harendranath v. State of Madhya Bharat, A. I. R.1950 Madh-B. 46 at 51, para. 12 per Dixit J.)
14. The opposite party will be at liberty to comply with the requirements of Rule 5 (2), Land Development Rules, and issue a fresh declaration under Section 6 of Act 21 of 1948.
15. In the circumstances, this petition should succeed and the opposite parties are restrained from giving effect to or, taking any steps under the Notification, dated 2-12-1949, and the Notification, dated 9-2-1930. The Rule is made absolute to this extent.
16. The petitioner is entitled to the costs of this Rule, hearing-fee being assessed at one gold-mohur.