Syed Fateyab Ali Meerza v. UNION OF INDIA — 1989 DIGILAW 10 (CAL)

Judgment 1. THIS writ application is at the instance of the petitioner who is one of the male descendants of His Highness Fureeddon Jah Syed Mansoor Ali Khan, the Nawab of Murshidabad against an order or requisition by which the front portion of premises No. 85, Park Street, (Culcutta, which is the lawn was requisitioned under the provisions of West Bengal Land (Requisition and acquisition) Act 1948. 2. IT is not necessary to set out all the facts pleaded in the writ application. For the purpose of this writ application, the relevant facts are that Murshidabad Estate (Trust) Act 1963 (hereinafter referred to as the Trust Act) was passed by the State Legislature whereby all properties of Murshidabad Estate vested in the Trustee (Official Trustee of Government of West Bengal) and the said Trustee was under the obligation to hold properties in trust for the benefit of the sons and daughters of the Late Nawab Bahadur i. e. Syed Wasif Ali Meerza. In accordance with the provisions of the said Trust Act, premises No. 85, Park Street which forms part of the Murshidabad Estate was to be used and occupied solely by the successor of Nawab of Murshidabad. It may be mentioned that at present the title of Nawab had not been conferred on anybody. The writ petitioner is one of the claimants of such title. The petitioner along with some other members of the family of late Nawab Bahadur are residing and are in occupation of premises no. 85, Park Street, Calcutta. It appears that against the move to set up a hotel at the said premises, the said writ application was filed by the petitioner for establishing his right to the title of Nawab and also to get the annuity payable to the Nawab whereupon Suhas Chandra Sen, J. on 30th August 1985 passed the following order : "There will be an order of status quo till the disposal of the application, so far as the possession of the premises no. 85, Park Street, Calcutta and tenancies of that premises are concerned. It is recorded that Mr. Chatterjee appearing on behalf of the State, is disputing the allegation of existence of tenancy and the right of the petitioner in respect of the premises no. 85, Park Street. 85, Park Street, Calcutta and tenancies of that premises are concerned. It is recorded that Mr. Chatterjee appearing on behalf of the State, is disputing the allegation of existence of tenancy and the right of the petitioner in respect of the premises no. 85, Park Street. There will also be an order restraining the petitioner from inducting any tenant or any other occupant in the said premises no. 8. 5, Park Street, Calcutta." Thereafter, the State Government requisitioned the property on 9/11/83 under section 3 (1) of the West Bengal Land (Requisition and acquisition) Act 1948 for the purpose of maintaining supplies and services essential to the life of the community or for the purposes connected therewith and incidental there to viz. for construction of Government officers/ministers. The notice as provided under Section 3 (2) of the said Act was not served upon the petitioner but was served upon the Durwan of the official Trustee of Government of West Bengal posted on the said premises on 12th November 1983 at about 12.30p.m. The petitioner challenged this order of requisition on the ground that no notice of requisition was served upon the petitioner either as owner or occupier of the premises and secondly, the said lawn which is the subject matter of the requisition is being used by the petitioner and the family members of the Nawab of Murshidabad and the members of the Shia Community for the purpose of religious worship which is exempted under the provisions of the said act and thirdly, the purpose for which the lawn was requisitioned, was beyond the scope and ambit of the provisions of West Bengal Land (Requisition and Acquisition) Act 1948 and lastly, the said property which was directed to be used for a particular purpose under the said Trust Act, could not be requisitioned by the State Government in exercise of the power conferred under Section 3 (1) of the said Act. 3. THE case of the Respondents is that the said lawn is not in occupation of any particular person and the property is under the control and management of the Official Trustee and as such it was not necessary to serve any notice upon the petitioner who might be the occupier of the building portion. Further it is stated that the said lawn of the premises no. Further it is stated that the said lawn of the premises no. 85, Park Streer, was required for the purpose of construction of building for office accommodation and also for residential quarters for government officers and ministers and it was stated that the said purpose was a public purpose and comes within the scope and ambit of the said Act. Further the Respondent's case is that after the property is requisitioned the same would be acquired permanently under Section 4 of the said Act subsequently. 4. MR. P. K. Das learned Counsel appearing on behalf of the petitioner contended in the first place that the petitioner was lawfully occupying the said premises as he was claiming the title of Nawab Bahadur of Murshidabad and that it was pointed out that the Wasif Manzil Palace at Murshidabad and premises No. 85, Park Street, Calcutta should be used and occupied by Nawab Bahaduir under provisions of the said Act 2 of 1963 and in any event, it was not in dispute that the petitioner is occupying a portion of premises no. 85, Park Street. It was further submitted by Mr. Das that the said lawn is used for the purpose of religious worship and as such the same could not be requisitioned. It was stated that the said lawn is used by the petitioner and the petitioner's family members and the members of Shia Community and in This connection, reference is made to the Proviso to Section 3 (1) of the said Act, It was next contended that under the provisions of section 3 (2) of the said Act, order of requisition should be served not only on the owner but also on the occupier and that such provisions for service of notice upon the owners and occupier were mandatory provisions. Thirdly, it was submitted that the provisions of section 3 (1) of the said Act could not be invoked for the purpose of requisition of any lawn in question for the said purpose but only for the purpose specifically mentioned in Sub-section (i) of Section 3 of the said Act. It was submitted that construction of office building and quarters for Government Officers and Ministers is not a purpose specifically mentioned in Section 3 (1) of the said Act and as such the same could not be requisitioned. It was submitted that construction of office building and quarters for Government Officers and Ministers is not a purpose specifically mentioned in Section 3 (1) of the said Act and as such the same could not be requisitioned. Firstly, it was submitted that the alleged purpose was a permanent purpose and not a temporary purpose and it was submitted that power of requisition could not be made in case where the property is required for a permanent purpose and in this connection, reference was made to the decision of the Supreme Court of India in the case of H. D. Vora v. State of Maharastra and Ors., reported in AIR 1984 SC page 866 and in the case of Jiwani Kumar Paraki v. First Land acquisition Collector, Calcutta, reported in AIR -1984 Page 1707 and also the judgment delivered by me in the case of Howrah Mill Ltd. v. State of West Bengal, reported in 1988 (1) Calcutta High Court Notes Page 367. Lastly, it was submitted that the provisions of the said Trust Act laid down the said property would be used for a particular purpose viz, residential purpose of the Nawab. When legislature specifically provided in the Trust Act that the said property should be used for a specified purpose a subordinate authority cannot override the legislative declaration by an order passed in exercise of the power conferred under section 3 (1)of the said Act. It was submitted that the legislative mandate could not be made nugatory by delegated authority. Mr. Habibullah learned Advocate appearing on behalf of the Respondents submitted that the lawn as such is not under the physical occupation of any occupier and as such there was no question of service of any notice upon the petitioner. The petitioner might have been in possession of a part of the building portion but not vacant portion on which the lawn was situated. It was further submitted that the notice was validly served upon the Durwan of the Official Trustee, inasmuch as, the Durwan represented the owner and occupier of the premises in question. It was further submitted that the purpose for which the lawn is sought to be requisitioned, was a purpose specifically mentioned in Section 3 (1) of the said Act and according to Mr. Habibullah the said purpose was for maintaining supplies and services essential to the life of the community. It was further submitted that the purpose for which the lawn is sought to be requisitioned, was a purpose specifically mentioned in Section 3 (1) of the said Act and according to Mr. Habibullah the said purpose was for maintaining supplies and services essential to the life of the community. It was further submitted that no religious worship was being carried on the said lawn and as such there was no bar for such requisition. 5. UNDER the provisions of Section 3 of the Murshidabad Estate (Trust) Act 1963 all the properties of Murshidabad Estate vested in the trustee which were directed to be held by him in trust for the benefit of sons and daughters of Late Nawab Bahadur. So it is made clear by the said Act that the sons and daughters of Late Nawab Bahadur are the beneficiaries of the said properties and that the trustees had to incur ail costs for the purpose of repairs and improvement of the said properties. It may be mentioned that Murshidabad Estate (Trust) Act 1963 (West Bengal Act II of 1963) was passed for the purpose of creation of a trust in respect of the property enjoyed by Late Nawab Bahadur of Murshidabad for the benefit of his sons and daughters and under section 3 of the said act the property of the said Estate was vested in the sons and daughters of Late Nawab Bahadur. Section 6 of the said Act provided that the residential premises was allotted for being used by the sons and daughters and the said section provides that " The residential house and buildings of Late Nawab Bahadur shall be used and occupied by the sons and daughters of Late Nawab Bahadur in the following manner, that is to say : (i) The Wasif Manzil Palace at Murshidabad and premises no. 85, Park Street, Calcutta shall be used and occupied by Nawab Bahadur Provided that (a) If the Government of India ceases to recognise the title of Nawab Bahadur of Murshidabad, the houses referred to in Clause (i) shall all be merged with the rest of the trust properties for the benefit of some or all beneficiaries thereof for the time being, as the State Government may direct. " 6. " 6. SECTION II of the said Trust Act provided - "The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary." From the provisions of thee said Trust Act of 1963, it is crystal clear that it is a special Act passed for the purpose of creation of a trust in respect of the properties enjoyed by Late Nawab Bahadur of Murshidabad for the benefit of his sons and daughters in the manner specifically provided in the said Act and that the said Act was given an overriding effect or in other words, the provisions of the Trust Act should override the provisions of all others Acts in this regard. 7. THE question is whether the property which was the subject matter of the Murshidabad Estate (trust) Act 1963 and which was directed to be used for a particular purpose could be requisitioned in exercise of powers conferred by Section 3 (1) of the West Bengal Land (Requisition and Acquisition) Act 1948 for use of the said property for a different purpose altogether. When the State Legislature provided by the Act II of 1963 that premises no. 85, Park Street, which was used and occupied by late Nawab Bahadur and the properties shall be merged with the rest of the trust properties for the benefit of some or all beneficiaries thereof for the time being, as the State Government may direct. When the provision of this Trust Act was. given an overriding effect, can it be requisitioned by the State Government in exercise of power conferred under Section 3 (1) of the said Act II of 1948, for some other purpose. When the legislature expressly provided that the said premises is to be used in a particular manner and for a particular purpose, it is not open to any authority, subordinate to the State legislature to take away the property for the purpose of using the same for a purpose which is alien or contrary to the purpose of Murshidabad Estate (Trust) Act 1963. The Act-II of 1963 has been given an overriding effect and as such no other Act could override the provisions of Act-II of 1963 and because of its overriding effect, it must be held that in respect of the properties covered under the provisions of Act-II of 1963 could not be requisitioned and or acquisitioned under any other law and accordingly, by exercise of power under Section 3 (1) of Act II of 1948, the properties under Act-II of 1963 could not be acquired under act-II of 1948. When the legislative intent was clear that premises no. 85, Park Street, Calcutta could not be used for any other purpose except for the purpose specifically mentioned, no other provision of any other act could be applicable in respect of the same and accordingly, the legislative intention is clear that the properties under the provisions of Act-II of 1963 could not be acquired and/or requisitioned by any other law to frustrate the said purpose. When legislature had granted special protection to such a property, it is not open to any other authorities subordinate to legislature to make the provisions of the said Act-II of 1963 nugatory. A law made by the parliament of legislature of State cannot be superseded by any authorities subordinate to the legislature on the strength of a statutory order. A law could be superseded by any other law. But a law cannot be superseded by any subordinate authority and that too according to his own opinion. If the intention of the legislature is clear that law cannot be superseded by executive on the strength of the statutory order, the position and status of the Jaw under the Constitution of India cannot be impaired by subordinate authorities and/or by subordinate legislation and order and as such no part of the premises no. 85, Park Street which is being expressly provided and protected and preserved by the provisions of the Trust Act of 1963 cannot be requisitioned for the purpose which is alien to the purpose and object of the said Trust Act 1963. Accordingly, I hold that when under one Act: namely the Trust Act 1963 property in question, the legislature required the property in question to be used for a specified purpose, such legislative mandate could not be overridden or bypassed by the authorities under a different Act, by issue of an order. Accordingly, I hold that when under one Act: namely the Trust Act 1963 property in question, the legislature required the property in question to be used for a specified purpose, such legislative mandate could not be overridden or bypassed by the authorities under a different Act, by issue of an order. An order passed under Act-II of 1948 could not nullify the legislative mandate as provided in the said Trust Act of 1963. 8. THE West Bengal Land (Requisition and Acquisition) Act 1948, provides for the requisition and speedy acquisition of land for certain specified purpose in a summary manner. Under the scheme of this Act if there is valid requisition the State Government may use or deal with such land only for the purpose referred to Sub-section (l) of Section 3 of the said Act and that if the State Government consider that the said land should be continued for the said purpose, in that event, the same may 'be acquired under Section 4 of the said Act. In the case of Jiwan kumar Paraki v. First Land Acquisition Collector, Calcutta, reported in AIR 1984 SC 1707 it was held by the Supreme Court of India at page 1713 that - "In view of the decision in the case of H. D. Vora ( AIR 1984 SC 866 ) in the light of the decision of this Court renderd by a Bench of three Judges in Collector Akola v. Ramchandra ( AIR 1968 SC 244 ) (supra) and bearing in mind the distinction between 'requisition' and 'acquisition' as also the provisions of West Bengal Land (Requisition and Acquisition) Act, 1948, amended Section 49 (1) (quoted-above) the correct position in law would be that it will not be correct to say that in no case can an order of acquisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of conditions of Section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power to achieve its purpose, then that will be bad not because the government would be acting without power of requisition but the Government might be acting in bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better." "Where one is repository of two powers that is power of requisition as well as power of acquisition over the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law." Relying upon the aforesaid decision of the Supreme Court of India I have held in the case of Howrah Mill Ltd. v. State of West Bengal and Ors., reported in 1988 (1) Calcutta High Court Notes 367 that "In my view, within the scope and ambit of the provision of section 3 of the said Act, State cannot protect an unauthorised occupant and to allow such unauthorised occupants to continue in possession by validating the same by exercise of the statutory power as it has been sought to be done in the instant case. Incidentally, it may be mentioned that under the ordinary law of acquisition namely Land Acquisition act, the property could be acquisitioned, but before acquisition is made for a company, certain statutory requirements were to be complied with and in my view, those statutory requirement, cannot be by-passed by invoking the summary and emergency power under the impugned Act. The impugned act could only be invoked for specified purposes. Under the provision of the impugned Act, the property could be requisitioned if the situation and/or the purpose is mentioned under the Act, is fulfilled and there after if it is necessary to keep the property, in that event the same may be acquired. The impugned act could only be invoked for specified purposes. Under the provision of the impugned Act, the property could be requisitioned if the situation and/or the purpose is mentioned under the Act, is fulfilled and there after if it is necessary to keep the property, in that event the same may be acquired. The purpose of the Act is for speedy requisition in order to meet the situation. In the instant case, the facts and circumstances under which the power has been exercised in the manner was beyond the scope of Section 3 of the said Act." 9. ACCORDINGLY, I hold that the order under Section 3 (1) of the said Act was passed without jurisdiction, inasmuch as, the said Act could not be invoked for the purpose of requisition of lawn for a permanent purpose and further the purpose for which the lawn is sought to be requisitioned, also falls beyond the purposes mentioned in Section 3 (1) of the said Act. The purpose was the construction of quarters for officers and ministers. This purpose could not he said to be a purpose for the maintaining supplies and services essential to the life of the community and/or for increasing employment opportunities for the people by establishing commercial estate and industrial estate in different areas or for providing proper facilities of transport communication, irrigation or drainage or for creation for better living condition in rural and urban area. The word "supplies and services essential to the life of the community" has got its definite connotation. Supplies and service essential to the life of the community means electricity, water supply, sanitation and other essential things without which the life of the community would come to a stand still. By no stretch of imagination can it be said the constructions of quarters for Officers and Ministers are for the purpose of maintaining supplies and services essential to the life of the community. Within the scope and ambit of the said Act, such a wide connotation to the meaning of this word could not be given, inasmuch as, the purposes of this Act is for speedy requisition and/or acquisition of land for some urgent purpose specifically mentioned in the said Act, At the same time, it has to be remembered that there was a general law for acquisition of land namely the Land Acquisition Act. The object of this Act could not be widened so as to bring all public purposes within the scope this Act. 10. WITH regard to the next contention that the said lawn is used for religious purpose as claimed by the petitioner, the word used in statute is that no land used for purpose of religious worship should not be requisitioned. The lawn is used by the family members for religious worship and it is a matter of common knowledge that almost in every house there are deities and worship is held by the people in their respective premises. There are private religious places but in the context in which this was provided, in my view, must mean that it must be a public place of religious worship and the members of the community must have some right to use the same as a place of religious worship. In the statute it was provided that "no land used for the purpose of religious worship or used by an educational or charitable institution shall be requisitioned under this section. "A" word in statute has to be interpreted on the basis of the association of the words used by the legislature. Educational and charitable institution are meant for the public at large. Accordingly, I hold that even though the said lawn might have been used by the family members as a place of religious worship, the same cannot be said to be public of religious worship and unless it could be established that the said place of religious worship was for the public at large the proviso could not protect such place of religious worship. Further there was no material before this Court on the basis of which it could be determined that the said lawn was used even for private religious worship and merely by making a statement in the writ application, such a disputed question of fact could not be decided. The question whether The property is used for a particular purpose is a question of fact and not a question of law. The next question was whether the service upon the Durwan of the Official Trustee was a valid service under the provisions of Section 3 (2) of the said Act. The question whether The property is used for a particular purpose is a question of fact and not a question of law. The next question was whether the service upon the Durwan of the Official Trustee was a valid service under the provisions of Section 3 (2) of the said Act. Under the scheme of the Act, firstly there must exist valid order or requisition and secondly, the order of requisition has to be served on the owner and if the property is in the occupation of a person other than the owner, in that event, certain notice has to be served upon the occupier also. The legal position could not be disputed that an order of requisition under Section 3 (1) of the said Act could not be made effective. Under the scheme of the Act, notice is given before requisition and such an order of requisition is not published in the gazette. Under such circumstances, unless a notice under Section 3 (1) is served, the order of requisition could not be made effective and valid. 11. IN the instant case, it was not disputed that the petitioner was in occupation of the premises no. 85, Park Street, and as such when any order of requisition is passed pertaining to the said premises, notice has to be given to the petitioner who was and is still in occupation of the said premises. Premises means the entire premises and not a part premises. I am unable to hold that even though the lawn pertains to the said premises, but as the said lawn is not physically occupied by anybody, the question of serving notice upon the ocupier does not arise. Nobody resides in the lawn of the premises. Lawns are kept vacant and that lawns are necessary for better and fuller enjoyment of the property and that when a house with a lawn in front of it is enjoyed by persons, in that event, the person residing in the building having right over the lawn must be held to be in occupation of the lawn. It would be absurd to contend that unless lawn is physically occupied, there was no occupier of the lawn, in that event, it has to be held that insects and/or earthworms who are inside the lawn, are the occupiers. It would be absurd to contend that unless lawn is physically occupied, there was no occupier of the lawn, in that event, it has to be held that insects and/or earthworms who are inside the lawn, are the occupiers. Lawns are used for the purpose of sitting, or playing, gardening, beautification which gives better benefits and amenities to the inmates of the house. Accordingly, I hold that in the instant case, there was non-service of notice upon the occupiers who are entitled to get a notice as occupier and as such non-service of notice upon the petitioner amounts to violation to the provisions of Section 3 (2)of the said Act. 12. IN the result, the writ petition succeeds. The order of requisition dated 9th November, 1983 which is Annexure 'b' is quashed. Rule is made absolute. A writ in the nature of Mandamus do issue commanding the respondents to rescind, revoke, cancel and/or withdraw the said order of requisition dated 9/11/83 which is Annexure 'b' to the petition. A writ in the nature of Mandamus do issue commanding the respondents not to give any "further effect to the said order of requisition which is Annexure 'b' to the petition. Petition allowed.