Sk. Wahad Hossain v. STATE OF WEST BENGAL — 1987 DIGILAW 312 (CAL)

JUDGMENT 1. THE petitioner prays for a writ in the nature of Mandamus commanding the respondent to forbear from giving effect or further effect to the notice being annexure 'h' to the writ petition so far as the land of the petitioners is concerned and not to adopt any measure for taking possession of the land of the petitioner and for consequential reliefs. 2. THE facts as disclosed in the writ petition and several supplementary affidavits are as follows : The petitioner is in bakery business for the last 32 years and has been running two bakary factories. By an advertisement published in the Bengali daily Aajkaal dated 19. 1. 86 the Government of West Bengal invited applications in requisite form all concerned for grant of licence for flour mill in different parts of West Bengal and the petitioner felt interested in the same. In response to the said advertisement the petitioner hastened to apply in February 1986 and as an essential requisite purchased land measuring 67. 5/8 acres in a portion of C. S. Plot no. 329 R. S. Plot no. 133 J. L. No. III of mouja Purba Ichapur. Immediately on purchase the petitioner obtained necessary sanction from the local panchayat to erect structure and constructed a boundary wall round the plot purchased and put up a sign board "site for Flour Mill'. "by a letter dated 21. 8. 86 the Deputy Secretary, inspection and quality control. Govt, of West bengal, Directorate of Inspection and Quality Control informed the petitioner that the application for licence for establishment of flour mill has been duly forwarded to the Deputy Secretary, Government of India, food and Civil Supplies. The petitioner advanced Rs. 51,000/- for purchase of machines. The United Bank of India agreed to sanction the necessary loan for setting up the Flour Mill. In view of the assurance of the state Govt, that there was no objection to the setting up a flour mill in the proposed area the petitioner invested more than a lakh of rupees in establishing the said factory. The United Bank of India agreed to sanction the necessary loan for setting up the Flour Mill. In view of the assurance of the state Govt, that there was no objection to the setting up a flour mill in the proposed area the petitioner invested more than a lakh of rupees in establishing the said factory. Suddenly on September 6, 1987 the petitioner was served with a notice of requisition by the Govt, of West Bengal under section 3 of the W. B. Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as Act II of 1948) in respect of the above land purchased for establishment of a flour mill and he' was intimated that possession would be taken on 8. 9. 86 3or establishment of sub station of West Bengal State Electricity Board. The petitioner immediately ther after filed this writ petition on 8. 9. 86 and obtained an interim injunction restraining' the respondents from interfering with his possession. By supplementary affidavit the petitioner alleged that subsequently the petitioner has been granted a registration number by the Central Government for the purpose of facilitating the petitioner in establishing a flour mill and the State Govt, has also called for a report from the petitioner as regards the progress of the project. It is also alleged that even if the land of the petitioner is left out the State Electricity Board would have sufficient frontage for construction of the sub station. 3. THOUGH all the respondents have contested the writ petition yet affidavit in opposition has been filed by the respondent no. 4 alone. The contentions of the respondent no. 4 are stated below :. 4. THE land under requisition is urgently required for setting up of 132 KV sub station at Barasat by respondent no. 4 to relieve the load of the other existing sub stations of the area. That Barasat now being to district the load requirement of the area for electricity is likely to be increased in near future. On a survey of the area, the area concerned including the petitioner's land has been found to be most suitable. The land is situated just by the side of the Taki Main Road which will facilitate carrying heavy construction materials and equipment necessary for construction of the sub station. On a survey of the area, the area concerned including the petitioner's land has been found to be most suitable. The land is situated just by the side of the Taki Main Road which will facilitate carrying heavy construction materials and equipment necessary for construction of the sub station. One H. T. line exists on the proposed plots which will provide for power for construction readily and will enable the respondent to complete the important project quickly. Any change of the proposed land will cause major set back in completion of the vital project and will lead to irreparable loss and damage. The State Govt, did not invite application for licence for opening of flour mill. The petitioner did not raise any boundary wall nor did he set up any notice board at the material time. Neither the State Government nor the Central Govt, did not give any assurance to the petitioner. No portion of the land can be left out and it is not correct to say that the project can be completed without the land in question being acquired. The petitioner has challenged the order of requisition on the following five grounds : - a) The Act II of 1948 does not empower the State to requisition any land for the benefit of West Bengal State Electricity Board, a company. b) The requisition being permanent in nature, Government should have taken recourse of Act 1 of 1894 and should have acquired the land. c) By virtue of requisition the possession only is vested in; the State not the title and as such the transfer of land in favour of W. E. S. E. B., a company, by the State who has no title to the land is illegal. The transferee can not have a better title than the transfer or and as such the vesting of property in favour of West Bengal State Electricity Board is illegal. d) If the said land measuring about two big has is left out of requisition, the purpose of requisition should not be frustrated. e) The said requisition is bad in law in view of the principles of promissory estoppel. 5. THE first point which needs decision is whether the requisition of land under Act II of 1948 is permissible under the law for the purpose of the State Electricity Board. e) The said requisition is bad in law in view of the principles of promissory estoppel. 5. THE first point which needs decision is whether the requisition of land under Act II of 1948 is permissible under the law for the purpose of the State Electricity Board. The petitioner contends that it is not legal for the L. A. Collector to order requisition of the property for the purpose of a company and that purpose is not a public purpose within the meaning of section 3 of Act III of 1948. The decision of Sandhya Mukherjee v. State in 1977 (2) Cal. L. 3. 375 has been relied upon in support of this contention. On the side of the respondents two division Bench decisions of this Court being 1980 (2) Cal. L. 3. Surmila Devi v. State and 86 CWN 1046 Kamal Bez Baruah v. State, has been referred and it is submitted that the purpose of State Electricity Board is a public purpose. The division bench of this court in 1980 Cal. L. J. page 19 presided over by M. M. Dutt, J. who also delivered the judgment in 1977 (2) Cal L. J. 375 has distinguished his own judgment in 1977 (2) Cal. L. J. 375 and has held that the L. A. Collector under section 3 of Act II of 1948 can requisition a property for the purpose of State Transport Corporation, a statutory corporation for making construction for the use of the said corporation and the said corporation being entrusted ' with the maintenance and supply of essential service to the community as agent of the State Government requisition of land for its purpose is a public purpose. In 86 CWN 1046 the Division Bench of this court also presided over by M. M. Dutt, J. has also held that the requisition, of land under Act II of 1948 for Calcutta electricity Supply Corporation is a public purpose. The reason is that the Calcutta Electricity Supply Corporation is maintaining the electric supply which is a supply essential to the community for and on behalf of the State. The Calcutta Electric Supply Corporation is a private company. Even the Division Bench has held as above. The State Electricity board is a statutory corporation. So this decision very much applies to the present case. The Calcutta Electric Supply Corporation is a private company. Even the Division Bench has held as above. The State Electricity board is a statutory corporation. So this decision very much applies to the present case. Therefore, in my view, regard being had to its above division bench judgments the requisition of land under section 3 of Act ii of 1948 for State Electricity Board must be held to be for a public purpose. Therefore the first contention fails. 6. THE second point urged by the petitioner is that no order under section 3 of the Act II of 1948 can be made in respect of property for which the purpose is permanent in nature. The petitioner relies on two decisions of Supreme Court namely, h. D. Vora v. State of Maharashtra, AIR 1984 SC 886 and 3iwani Kumar v. 1st Land Acquisition Collector, Calcutta, AIR 1984 SC 1707 . 7. ON behalf of the respondents it is submitted that the above contention is not acceptable. It is contended that similar contention has been rejected by this court in the case reported in 1979 (1) Cal. L. J. 212 and the Supreme Court has also rejected such a contention in respect of similar requisition under the Bombay Land Requisition Act, 1949 in AIR 1963 sc 2 44. It is also submitted that under Act II of 1943 there has to be a requisition first to be followed by acquisition under section 4 of the act. Therefore, even when the purpose is permanent in nature requisition will have to be made first and it will be followed by the acquisition under section 4 and regard being had to the fact that immediate possession has to be taken for the purpose of construction of sub station of the State electricity Board requisition under section 3 (1) of the Act II of 1948 has been made and the State respondent will follow it immediately by proceeding under section 4 of the Act. 8. I have carefully considered two decisions of the Supreme Court referred, to by the petitioner. 8. I have carefully considered two decisions of the Supreme Court referred, to by the petitioner. It is true that in H. D. Bora's case P. N. Bhagabati J. in para 5 (page 870) has made observation that requisition of land by the Govt, is only for a public purpose which is of a tangible character and when the property is requisitioned for a public purpose which from the beginning was known to be of permanent nature there should be an acquisition proceeding. However, on a careful perusal of the judgment at will be clear that this above observation were made in connection with a case in which property requisitioned in 1951 was kept under requisition for more than thirty years without acquiring the property. In para 5 of the judgment the LT. judge had observed that requisition of the property for public purpose which is of permanent nature has to be followed by acquisition within a reasonable period otherwise the order of requisition shall be cancelled. Therefore, in the above decision the Supreme Court has not taken the view that the order of requisition cannot be validly made in respect of a purpose' which is permanent in nature but has condemned the keeping of the property under the requisition for an indefinite period without taking the recourse to acquisition proceeding. This view of the Supreme court has been re-iterated in the next decision of the Supreme Court, namely,' Jiwani Kumar v. 1st Land Acquisition Collector, Calcutta, Sabyasachi mukherjee 3, who delivered the judgment of the Supreme Court has observed that it will not be correct to say that in no case the order of requisition cannot be made in respect of a purpose which is permanent in nature. Therefore in none of the two decisions the Supreme Court has declared the order of requisition as illegal if the purpose were permanent in nature. In that view of the mater, I am unable to accept the contention of the petitioner that the respondent has no legal right to requisition property of the petitioner under section 3 Act II of 1948 as the requirement of the State Electricity. Board is permanent in nature. In that view of the mater, I am unable to accept the contention of the petitioner that the respondent has no legal right to requisition property of the petitioner under section 3 Act II of 1948 as the requirement of the State Electricity. Board is permanent in nature. However, if the respondent keeps the property under requisition for an indefinite period and does not acquisition the property within a reasonable time then in view of the Supreme Court judgment in H. D. Vora's case, the petitioner will be at liberty to apply before the court to set aside the order of requisition. But at the present moment the order of requisition can not be held to be invalid on ground alleged by the petitioner. Therefore, his contention also fails. 9. THE third contention of the petitioner is that as possession only is to be vested with the State under an order of requisition passed under section 3 of the Act II of 1948 the State does not acquire title to the same to transfer the same to State Electricity Board until and unless the property is validly acquired and title passes to the State. 10. THE above contention of the petitioner has been repelled by the respondents. It is contended that the State has the right to possesses the property for the purpose for which the same has been requisitioned and can also handover possession to the agency through which its purpose is to be achieved. Reliance has been placed to the two division bench decisions of this court, namely, 1980 (2) Cal. L. J. 19 and 86 CWN 1046. In my view once it is held that the State Govt, can requisition the property for the purpose of the State Electricity Board so that the board can construct a sub station at Barasat area then it' is' difficult to accept that the State cannot handover the property to the Board immediately on requisition. If the view of the petitioner be accepted, then the whole purpose of requisition of the property and immediate taking of possession on the ground that the necessity is emergent in nature will be frustrated. Therefore, this contention is not also acceptable. 11. If the view of the petitioner be accepted, then the whole purpose of requisition of the property and immediate taking of possession on the ground that the necessity is emergent in nature will be frustrated. Therefore, this contention is not also acceptable. 11. THE fourth contention of the petitioner is that the land of the petitioner being only two big has in area can be left out for construction of the sub station and the purpose of the requisition will not be frustrated if the said land is spared. 12. MR. Arun Prokash Chatterjee,on behalf of the petitioner submits that even if the two big has of land which is in the middle of the whole land requisitioned with its frontage on the Taki Road be spared, there shall still remain enough. frontage for the State Electricity Board for construction of the sub station and their construction work will not be in any way hampered nor will the sub-station have any difficulty in running without the said two big has of land. The respondent no. 4 in this affidavit in opposition has refuted the contention of the petitioner that the project will not be hampered if two big has of land are spared. It is contended that for construction of the sub-station the fromtage of the road is vital for the project and if the land of the petitioner be left out that will create a wedge and divide the sub station in two parts so far as the frontage is concered and will not be beneficial for the construction of the 132 K. V. Sub station of the State Electricity Board. 13. IN my view, regard being had to the position of the land of the petitioner the leaving out of the said land will not be beneficial for the construction of the sub station and the land of the petitioner cannot be spared without hampering the work of the 132 KV Sub Station of the state Electricity Board. 14. THE fifth contention of the petitioner is that the order of requisition is bad in law as it has been passed violating principle of promissory estoppel. 14. THE fifth contention of the petitioner is that the order of requisition is bad in law as it has been passed violating principle of promissory estoppel. The petitioner has urged that the advertisement annexure 'a' to affidavit in reply of the petitioner indicates that the State Govt, invited application for license for setting up a flour mill within February 7, 1986 and indicated that the same would be forwarded to the Central Government. The petitioner submitted the application in the proper form sometime in February. 1986. He thereafter, purchased the land on l4th March, 1986. The State Govt, on making proper enquiry recommended the case of the petitioner to the Central Govt, on 21st August, 1986. The Petitioner also took further steps to purchase machines and obtained sanction of the bank loan. Then suddenly he received the order of requisition. dated 21. 8. 86 on 6. 9. 86. It is also the further case of the petitioner that after the above requisition order has been made the Central Govt, has given the registration number to its application and the State Govt, has also made enquiry about the progress of the project, that the State Govt, acknowledged the establishment of the flour mill on the self same land requisitioned by same State government and the Central Government has allotted the registration number for setting up the flour mill in that land and the petitioner in view of the above promise of the Slate Government has altered his position and spent nearly two lakhs of rupees and the State Govt, is bound by promissory estoppel not to requisition and acquire the land of the petitioner and order of requisition is liable to be set aside and cancelled. It is further contended that since the State Govt has made specific recommendations in favour of the petitioner for establishment of the flour mill in respect of the said land and since the State Government was fully aware that on the basis of the promise the petitioner would also alter his position, the principle of promissory estoppel is very much attracted to the present case and that the State Govt, was acting as agent of "he central Govt, with regard to the establishment of flour mill and grant of licence and they cannot avoid the consequence of the promise or their role on the basis of which the petitioner altered his position to hi. determent and the State Government is liable to keep its promise and is stopped from denying it. In support, the petitioner relies on the two supreme Court decisions in AIR 19f9 SC 621 (M. P. Sugar Mill case and air 1986 SC 872 Express Newspaper case. On behalf of the representation or conduct on the side of the State Govt, amounting to any promise to grant licence and to any promise not to requisition the particular land, that there is no alternation of position on the basis of the referred land, that there is no alteration of position on the basis of referred promise, that assuming thought not admitting that there is promise, there is no estoppel because there can be no estoppel against exercise of statutory function or duty, that, promise, if any, by the State Government is unauthorised because it is the Central Government who is alone competent' to grant license to set up a flour mill and the purported promise even if granted cannot but he unauthorised, that the power of requisition flows from the power of Emient Domain which is undoubtedly a part of executive power of the State under article 162 of the constitution and there can be no estoppel against the exercise of sovereign power or executive power of the State and that there cannot be any estoppel when special considerations apply. The decision of the Supreme Court reported in AIR 1980 SC 1285 has been relied upon in support of the above submissions. It is, next, contended* that there is nothing to show that any promise has been made by representation or conduct not to requisition the particular land, that there was no asumption or conduct not to requisition the particular land, that there was no assumption that the particular land would not be taken by requisition in the public interest that there is nothing to indicate that the petitioner would not procure any other suitable land in the area and can purchase any other suitable land! in the area with the compensation money awarded for the land in question if he actually obtains licence from the Central Govt. in the area with the compensation money awarded for the land in question if he actually obtains licence from the Central Govt. In M. P. Sugar Mill v. State of U. P., AIR 1979 SC 621 P. N. Bhagawati, j. as His Lordship then was, has in clear terms observed that the true principle of promissory estoppel seems to be that, where any pariy has by his words or conduct made to other a clear and in equivocal promise which is intended or effects a legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact acted upon by the other party the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The Learned Judge has also observed that the doctrine of promissory estoppel has also been applied against the Govt. So far as the applicability of. the principle of promissory estoppel to Government is concerned Mr. Sadhan Gupta appearing for respondent no. concedes that the same is applicable against Govt, no doubt. But he submits that in this case no promise was made by the State Govt, for an estoppel to arise against it. It is also contended that even if any promise be assumed to have been made by the State Govt, it had no authority to give that promise and more so no promise was given that the land of the petitioner purchased for setting up a flour mill would not be acquired for a public purpose. 15. MR. Arun Prakash Chatterjee has urged that the State Government received the application for Central Govt, and forwarded it to Central govt, with recommendation and held out the promise that it recomends setting up a flour mill on the land in question and therefore the same state Govt, cannot requisition the self same land for a public purpose for construction of a sub-station for State Electricity Board, West Bengal. 16. 16. ON perusal of the application failed by the petition for granting a licence for setting up a flour mill in Barasat Area, 1 find' that in that application no mention was made a regards the plot where the flour mill would be set up by the petitioner. As a matter of fact the petitioner purchased the plot in question on 14. 3. . 86 i. e. subsequent to the 'date on which he submitted the application to the office, of the State Government, the application annexure 'b' is addressed to the Deputy Secretary Govt. ' of India and licencing authority, Ministry of Food and Supplies, Krishi bhawan New Delhi The letter, dated 21. 8. 86 of Deputy Director Inspection and quality control Directorate of Inspection and Quality Control, West bengal 11a, Mirza Caalib Street, Calcutta-87, annexuree T shows that the Deputy Director intimates the petitioner that the application of the petitioner along with such other applications have been forwarded' to the deputy. Secretary to the Govt, of India, Department of Food, Ministry of Food and Civil Supplies, Krishi Bhavvan, New Delhi. that letter does not indicate that the application of the petitioner was for warded with any recommendation or not. It shows that the application of petitioner and all such applications have been forwarded. It is not disputed what granting of license for setting up a flour mill in any part of India is the exclusive jurisdiction of the Central Govt, and the State Govt, has no part to play in that respect. Only the applications have 'to be submitted in the office of tie State Govt, simply to be forwarded and the letter annexure t shows that the authority of the State Govt. only performed that part. As the State Govt, had no part to pay in the matter of industrial license for "starting a flour mill by the petitioner the State Govt, does not become the agent of the Central Govt, in this respect. So by forwarding petitioner's application the State Govt, did not by its conduct hold out any promise to the petitioner that his application for license would be granted. The granting and refusing the license is a matter for Central govt. So the State Govt, cannot make any promise in the matter and even if it made any promise that would- illegal and an authorised. The granting and refusing the license is a matter for Central govt. So the State Govt, cannot make any promise in the matter and even if it made any promise that would- illegal and an authorised. The petitioner filed the application himself, it was addressed to the Central Govt. So he knew from the beginning that the State Govt, by forwarding tie application did not hold out any promise to him. So the State Govt, cannot be said to have held out any promise to the petitioner that his application or license shall be alt owed or that he would be entitled to set up the hour mill on the plot which he purchased subsequent to the date on which he filed the application for license, Amnexure 'b'. Mr. Sadhan Gupta has drawn my attention to the decision of Supreme court in Jit Ram Shibkumar v. State of Haryana, AIR 1980 SC 1585 and has submitted in that decision the Supreme Court has made it clear that the principle of promissory estoppel was not available against the govt, n exercise of legislative severing and executive power, that the requisition of land of the petitioner has been made by the State, Govt, in the exercise of its sovereign power of Eminent Domain i. e. to acquire the property of the subject for a public purpose on payment of compensation which is an executive power of the Stat: Govt, under Article 161 if the Constitution and on order to acquire land under that power by the state Govt, it cannot be bound by any promissory estoppel. It is also urged by Mr. Gupta that requisition and acquisition of land for construction of a sub-station of the State Electricity Board, to augment power in the area is a special consideration and the State cannot be bound by any promissory estoppel in exercising' that power. Mr. Arun Prokash Chatterjee submits that he does not agree that the State is not bound by principle of promissory estoppel in exercise of his executive function. He refers to the decision of Supreme Court in Express Newspaper Private Ltd. Union of India, AIR 1986 SC page 892 and submitted the. A. P. Sen, J. of the Supreme Court in that decision! has doubted the validity of the proposition laid down by Kailasham 3. He refers to the decision of Supreme Court in Express Newspaper Private Ltd. Union of India, AIR 1986 SC page 892 and submitted the. A. P. Sen, J. of the Supreme Court in that decision! has doubted the validity of the proposition laid down by Kailasham 3. in AIR 1980 SC1285 and has se n the apparent, conflict in between the judgment of p. ' N. Bhagawati, 3. in AIR 1979-SC 621 and Kailasham, 3. in AIR 1980 SC 12 85. It is therefore, submitted the principle of promissory estoppel would be applicable to the State Govt even if the State Govt, exercises its power under Section 3 of Act II of 1948 to Requisition of land of the petitioner for a public purpose. On perusing the judgment of A., P. Sen, 3. in AIR 1986 SC 892 i find that the learned Judge noted the apparent conflict between the above two decisions but did not express any opinion on the validity of the decision of Kailasham, J. in AIR 1980 SC 1285 as it was not necessary for him to do for the purpose of the decision of the case (vide para 182 page 948. There can be no doubt that when the State Govt, requisitions or acquires property for a public purpose it does it in exercise of its power of Eminent Domain, the power to acquire land of the citizen for a public purpose on payment of compensation. The West Bengal Act II of 1948 is one such Act by which such power is exercised. Another such Act is the Land Acquisition Act. I am of the view if the State can be held bound by principle of promissory estoppel to exercise its power of Eminent Domain, then important State functions cannot be performed. As the requisition of land for establishment of a sub-station in Barasat area by the state Electricity. Board is an act of the Stale Govt, to argument the supply of electricity in Barasat area which has now become a district headquarters special consideration also arises in this case to uphold the State Act. Moreover the petitioner has not been able to satisfy that the State Govt, by its conduct has held out promise to the petitioner that the land which he has purchased for setting up the flour mill would not be acquired for a public purpose. Moreover the petitioner has not been able to satisfy that the State Govt, by its conduct has held out promise to the petitioner that the land which he has purchased for setting up the flour mill would not be acquired for a public purpose. Moreover it is not known if the Central Govt, would grant the petitioner the industrial license to start a flour mill. The petitioner has purchased the land so that his application for licence can be favourably considered by the Central Govt, and not being emboldened by any promise. There is nothing to indicate that he would not get any other suitable land in the area for setting up the flour mill if he actually gets the licence. In that view of the matter I am unable to hold that the State Govt., is estopped by promissory estoppel not to acquire for a public purpose the petitioner's land which he has purchased for setting up a flour mill if he obtained the industrial license from the Central Government, in the result all the contentions raised by the petitioner fails. The writ petition be dismissed. All interim' orders be vacated. In the circumstances I direct the parties to bear the respective costs themselves. Petition dismissed.