Roma Bosu v. Union of India — 1978 DIGILAW 104 (CAL)

Judgment This Rule is directed against an order of requisition passed by the Land Requisition Collector of premises No. 104, Shyama Prosad Mukherjee Road. 2. Petitioner Nos. 1 to 3 are the owners and petitioner No. 4 is a lessee in respect of the said premises. 3. There is a scheme for construction of Mass Rapid Transit System in the city of Calcutta. The implementation of the said scheme has already been taken in hand and the State Government of West Bengal has been authorised to acqurie land in the city of Calcutta for the purpose of construction of the Mass Rapid Transit System and other connected works relating to the said system from Dum Dum to Tollygunge. The petitioners challenge a notification dated 2.11.72 under S. 4 of the Land Acquisition Act of 1894 (hereinafter referred to as the Act) as well as the declaration dated 29.11.73 made under S. 6 of the said Act. It is the case of the petitioners that the premises sought to be acquired, a marble Ganesh Bigraha (deity) being the family deity was installed permanently inside the temple. In front of the temple there is a "Mandap" and occasionally in the said Mondap-the assembly floor is allowed to be used for marriage, Upanayan and Annaprasan ceremonies at the compelling requests of the local people. Even Durga Puja was held in the said assembly floor being organised by local youths. According to the petitioners, the whole or the land sought to be acquired is a religious place. On March 28, 1973 petitioner No.4 was served with a copy of the notification made under S. 4(1) of the Act relating to the proposed acquisition of a portion of premises No. 104, Shyama Prasad Mukherjee Road and in the said notice the petitioner was informed that the last date of filing objections thereto was April 17, 1973. Thereafter petitioner No. 4 contacted the Land Acquisition Collector for the purpose of inspection of the records of the case and with his leave petitioner No. 4 was allowed to take out a pencil copy of the rough sketch of the plan. The said petitioner requested the Land Acquisition Collector to allow him to look into the Master Plan and the sanctioned scheme relating to the Mass Rapid Transit System, but he was told that the Master Plan and the scheme would not be available. The said petitioner requested the Land Acquisition Collector to allow him to look into the Master Plan and the sanctioned scheme relating to the Mass Rapid Transit System, but he was told that the Master Plan and the scheme would not be available. There was hearing of the objection under S. 5A of the Act. Sometime in early November 1973 respondent No. 5, the Land Acquisition Collector, submitted his report containing his recommendations on the objections under S. 5A. Petitioner took short note of the said report. It is stated in the said report that there is a Ganesh Mondap on the west of the disputed land and the entire vacant portion is not used for Ganesh Puja. A portion of the vacant land is used for commercial purposes, at the time of inspection there was a marriage ceremony being held. So, the portion covering Ganesh Mondap is to be left out of acquisition. Subsequently there was a declaration on 29.11.73 under S. 6 of the Act. The petitioner being aggrieved by the impugned notice and the proceedings under S. 5A of the Act moved this Court under Article 226 of the Constitution and obtained the present Rule. 4. An affidavit-in-opposition has been thed all behalf of respondent Nos. 2 to 5 and affirmed by Kanailal Das, Additional Land Acquisition Officer, wherein it is stated that it is not of a fact that whole of the land sought to be acquired is a religious place and has been so used for the installed deity. Only the western part of the strip of vacant land of the premises in question there is a Ganesh Mondap. The entire vacant portion is not, however, used for Ganesh Puja. The proposed land is required for construction of Electric-Sub-Station and for construction of Exhaust Shaft. It is further stated that a revised plan was sent to the Land Acquisition Collector showing exclusion of a strip of land on the northern side serving as access to the Mondap from acquisition and that acquisition is being done according to the revised plan which will not disturb the religious functions, if any, that will be held in the said Mondap. It is denied that the petitioners failed to object effectively under S. 5A of the Act. It is denied that the petitioners failed to object effectively under S. 5A of the Act. On a perusal of the petition of objection, it clearly appears that the petitioner were quite were of the purpose of acquisition and they had all materials including the project plan and the Master plan and other connected work relating to the said system from Dum Dum to Tollygunge, to effectively put forward their objections. The petitioners had all materials and opportunities including project plan which was available to them. 5. Mr. Biswas, appearing on behalf of the petitioners contended that item No. 33 of list I and item No. 36 of list II of VII Schedule of the Constitution having been omitted by the Constitution (7th Amendment) Act 1956 and the delagation of powers and functions by the Central Government to the State Government for acquisition of property under Article 256 of the Constitution by the issuance of the notification dated 14.5.55 as S.R.O. 1074 having been defunct as a result of the omission of item 33 and item 36 the exercise of powers of the State Government for acquisition of the petitioners' property for Union purposes on the basis of the defunct notification dated 14.5.55 was bad and ultra vires. 6. Prior to Constitution (7th Amendment) Act 1956 item No. 33 of list I of the VII schedule provided for acquisition for Union purposes and item No. 36 of the said list provided for acquisition or requisition of the property except for the purpose of Union subject to the provisions of entry 42 of list 3. Item 42 of list 3 to Constitution (7th Amendment) Act, 1956 provided for principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purposes is to be determined and the form and the manner in which such compensation is to be given. By the Constitution (7th Amendment) Act the original entry 42 was substituted. The effect of such amendment is that, previously the State Legislative could not enact a law affecting acquisition or requisition for Union purposes, nor could Parliament authorise it for State purposes. It would now be possible for laws made by either Legislature to apply to the entire field subject to the usual limitation of local jurisdiction and the cannons applicable to the concurrent power of legislation. It would now be possible for laws made by either Legislature to apply to the entire field subject to the usual limitation of local jurisdiction and the cannons applicable to the concurrent power of legislation. The State could not requisition or acquire property for Union purposes can no longer be raised after the amendment. Either the State or the Union Legislature will now be competent to requisition or acquire property for any public purpose. This should obviate the need to delegate the executive to acquire or requisition for Union purposes to the State Government under Article 258(1) of the Constitution. 7. By the Constitution (7th Amendment) Act, 1956 Article 298 has also been redrafted and it now reads as follows: "the executive power of the Union and of each State shall extend to the carrying of any trade or business and to the acquisition holding and disposal of property and the making of contracts for any business............" That Article clearly provides that the executive power of the Union will extend to the acquisition of the property concerned. In Messrs. Tinsukia Development Corporation Ltd. v. State of Assam & anr., reported in AIR 1961 Assam 133, the Full Bench of the Assam High Court observed that the executive power of the Union extends to acquisition, whether voluntary or in the exercise of its right of eminent domain, the only limitation to the exercise of the power of eminent domain is to be found in Article 31 of the Constitution which provides that no person shall be deprived of his property save by authority of law. If therefore by acquisition the State Government intends to deprive a citizen of his property, it has to do it in accordance with the authority of law, and thus a law may be necessary before such a power could be exercised but nonetheless the power exercised is an executive power conferred under Article 298 of the Constitution and its extent and distribution between the Union and the State are to be governed by the provisions of Article 298 of the Constitution. 8. So, in my view after the Seventh Amendment of the Constitution without any specific delegation, the State Government is competent to acquire the property either for the purpose of the Union or for its own purposes. So the first point raised by Mr. Biswas fails. 9. 8. So, in my view after the Seventh Amendment of the Constitution without any specific delegation, the State Government is competent to acquire the property either for the purpose of the Union or for its own purposes. So the first point raised by Mr. Biswas fails. 9. It is next contended that after the declaration made under S. 4(1) of the Act the provisions of sub-s. (2) of S. 4 including its proviso have not been complied with. So, according to Mr. Biswas, the quantum of land or the area specified in the notification under S. 6 were based on imagination. Section 5A contemplates that the Government need not just accept the recommendation of the Land Acquisition Collector, reasonable judgment has to be exercised but that was not possible without performing the obligation enumerated in S. 4 (2) of the Act, examining the suitability or adaptability of the land in question for the purpose it is sought to be acquired. Reliance was placed on a decision reported in AIR 1964 SC 1217 at page 1220, Nandeshwar Prasad & ors. v. U.P. Government & ors. 10. Sub-section (2) of S. 4 provides that after the declaration was made under sub-sec. (1) of S. 4, it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf and for his servants and workmen,- to enter upon and survey and take levels of any land in such locality: to dig or bore into the sub-s.il: to do all other acts .necessary to ascertain whether land is adapted for such purpose: to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon ;........ ........ * * * * * Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. 11. In the original petition this point was not taken. Subsequently on the 8th of December, 1977, an application for amendment of the writ petition was filed. In that amendment petition in paragraph 3 it is stated that the said premises is an enclosed area being two gates on east. 11. In the original petition this point was not taken. Subsequently on the 8th of December, 1977, an application for amendment of the writ petition was filed. In that amendment petition in paragraph 3 it is stated that the said premises is an enclosed area being two gates on east. The gates of the enclosed area are always kept under lock and key being so kept under the control of a Darwan who resides inside the premises in question. The petitioner did not receive any notice from the State Government or its officer in writing intimating that any officer of the Government or its agent would enter into the enclosed area belonging to the petitioner for the purpose of performing acts as mentioned in sub-s. (2) of S. 4 of the Act. Furthermore no one on behalf of the State Government had any occasion to enter into the land in question for doing any official work since the publication of the notification under S. 4(1) of the Act. 12. The provision enumerated in sub-s. (2) of S. 4 are not mandatory. The above section is an enabling section. It enables the officers of the State Government to enter and to do all acts necessary for the purpose of acquisition. In the instant case a master plan has been prepared by the Central Government for the construction of under ground railway which is known as Mass Rapid Transit System. A project plan was shown to the petition and it appears from the project plan that a portion of the petitioner's land would be required for construction of electric sub-station relating to the above scheme. So, in the facts and circumstances of the present case, it was not necessary for the officers of the State Government to comply with sub-s. (2) of S. 4 of the Act. For non-compliance of sub-s. (2) of S. 4, it cannot be said that the notification issued under S. 4(1) of the Act becomes invalid. The Supreme Court case referred to by Mr. Biswas has not laid down that non-compliance of sub-s. (2) of S. 4 of the Act, renders the notification under S. 4(1) of the Act invalid. 13. For non-compliance of sub-s. (2) of S. 4, it cannot be said that the notification issued under S. 4(1) of the Act becomes invalid. The Supreme Court case referred to by Mr. Biswas has not laid down that non-compliance of sub-s. (2) of S. 4 of the Act, renders the notification under S. 4(1) of the Act invalid. 13. It is next contended that the Master plan which is a "must" for any project work was not available to the petitioner and as such the petitioner could not effectively submit his objections under S. 5A of the Act. Reliance was placed on a decision reported in AIR 1966 SC 1593 at page 1595 (The State of Madhya Pradesh & ors. V. Vishnu Prasad Sharma & ors). 14. In that case before the Supreme Court, it was contended that as the government felt difficulty in making the plan of its project at a time particularly where the project is large it necessary that it should have power to make a number of declarations under S. 6 of the Act. That argument was repelled by the Supreme Court. 15. I am unable to follow how that decision is of any assistance to the petitioner in the present case. It is not disputed that the project plan was shown to the petitioner. Moreover it is stated in the petition itself that from the said project plan the petitioner made a rough sketch map in pencil. So the petitioner was fully aware that which part of his disputed premises was sought to be acquired by the State government. In my view, there is no substance in the contentions of Mr. Biswas that without any Master plan it is not possible for the petitioner to make any effective objection under S. 5A of the Act. 16. Lastly it is contended that in the impugned declaration under S. 6, it is stated that the land is needed for public purpose at the public expenses although the language of the statute is quite different. This point also was not canvassed in the petition but in paragraph 19 of the affidavit-in-reply it was taken. 17. In my view, this argument is also without any substance. This point also was not canvassed in the petition but in paragraph 19 of the affidavit-in-reply it was taken. 17. In my view, this argument is also without any substance. The second proviso to S. 6(1) of the Act states that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of the public revenues or some fund controlled or managed by a local authority. According to Mr. Biswas, in the statute the reference has been made to the "public expenses". That being so, the declaration made under S. 6 had become illegal. 18. Article 282 of the Constitution provides that Union or State may make any grant for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or Legislature of the State as the case may be, may make laws. This article provides that the spending power of the Union or the State Legislature is not limited to the legislative powers conferred upon it though the list in the seventh schedule defines the legislative powers of the Union and the State in the matter of expenditure. The only limit to the power of the Union or a State to spend on a purpose not included within its legislative power is that, the purpose must be 'public'. 19. In AIR 1927 Madras 114 (Kantimahanti Ramamurthi & ors. v. Special Deputy Collector; Harbour Acquistion, Vizagapatam), it was urged before the single bench of the Madras High Court that the declaration does not show that any money out of the public revenue has not been attached for the acquisition. The learned judge observed that it is not necessary that the declaration should on its face show that it is to be made out of the public revenue; S. 6, proviso, does not say so. 20. The public expenses shall have to be made out of the public revenue. So there is no point in saying that simply because the word 'public revenue' as stated in the second proviso of sub-s. (1) of S. 6, has not been mentioned in the declaration, the said declaration becomes void in view of non-compliance of the said provisions in the Act. 21. So, all the points raised by the petitioner fail. 22. So there is no point in saying that simply because the word 'public revenue' as stated in the second proviso of sub-s. (1) of S. 6, has not been mentioned in the declaration, the said declaration becomes void in view of non-compliance of the said provisions in the Act. 21. So, all the points raised by the petitioner fail. 22. On the 2nd February, 1978 I directed the officer of the M.R.T.P. to prepare a plan showing the temple and Mandap of the petitioner and also the land which is sought to be acquired. In pursuance of the said order of this court, a plan was prepared. In the plan prepared by the officers of the M.R.T.P. the location of the deity has been shown as well as the covered platform in front of the deity and the open space. 23. It is contended by Mr. Biswas that the open space is the Mandap. Mandap has been defined in the dictionary as chad jukta chattar ba sthan. So the open space by no stretch of imagination can be called as a "Mandap" of the deity. A passage has also been shown for the purpose of going to the temple. Accordingly, I direct the Land Acquisition Collector to acquire the land which has been shown in the plan prepared by the M.R.T.P. officers. With this direction, this Rule is discharged. There will be no order for costs. Let the plan be kept in the record. 24. Mr. Biswas prayed for stay of the operation of the order for a period of fortnight. But in view of the rapid progress of the M.R.T.P. scheme. I am unable to grant such prayer. Rule discharged with direction.