Bhinashar Finance P. Ltd. v. STATE OF WEST BENGAL — 1991 DIGILAW 453 (CAL)

JUDGMENT BHAGABATI PRASAD BANERJEE, J. 1. IN this petition the writ petitioners challenged the validity of the order of requisition made under Section 3(1) of the West Bengal Land (Requisition and Acquisition Act, 1948 (West Bengal Act II of 1948 IN respect of a piece or parcel of land containing an area of 10 cottahs 6 chittacks 17 sq. ft., with some structures standing thereon lying at municipal premises No. 1 and 2A, Lansdowne place formerly 10B, Lansdowne Road, Calcutta which was stated to have been requisitioned for the expansion of Ram Krishna Mission Seva Pratisthan Hospital. 2. THE facts of this case is that the petitioner had purchased the said premises No. 1 and 2A, Lansdowne Place, Calcutta by a registered deed of sale dated 23.10.86 executed by one Suchit Kumar Banerjee in favour of the petitioner no. 1 and that on application being made for mutation of name in respect of the said premises, Calcutta Municipal Corporation duly mutated the name of the petitioner in place and stead of Such it Kumar Banerjee on 29th April, 88 and that by virtue of the said deed of conveyance, the petitioner no. 1 became the absolute owner of the said premises. It is stated that on 15th May, 1987 a durwan of the said premises who is engaged by the petitioner informed the petitioner that on that date at about 4 p.m. some unknown persons accompanied by two policemen entered the said premises forcibly in spite of objection made by the durwan in question and forcibly stuck a tin plate at the entrance of the concerned premises and the tin plate bears the inscription therein 'site for Ram Krishna Seva Pratisthan'. It is the case of the petitioner that no notice either under the West Bengal Land Requisition and Acquisition Act, 1948 West Bengal Act II of 1948 or under the Land Acquisition Act, 1894 was ever served upon the petitioners or upon the durwan concerned who was residing at the said premises at the relevant, time. It was further stated on affidavit that no such notice was also hung with any place of the premises in question. The said premises which is stated to have been requisitioned, is butted and bounded by a school, namely South Suburban School which is one of the oldest schools of the area. It was further stated on affidavit that no such notice was also hung with any place of the premises in question. The said premises which is stated to have been requisitioned, is butted and bounded by a school, namely South Suburban School which is one of the oldest schools of the area. On enquiry it is stated that the property had been requisitioned under provisions of West Bengal Act II of 1948. It was specifically stated in the petition that no notice and/or order under the provisions of Section 3(2) of the West Bengal Land Acquisition and Requisition Act, 1948 West Bengal Act II of 1948 referred to as the said Act had been served upon the petitioner. It was stated that the purpose for which the said property was requisitioned, cannot be requisitioned under the provisions of the said Act, inasmuch as, the purpose was a permanent purpose and that establishment of a hospital is a project which can be achieved after going through all the procedural steps envisaged under Act I of 1894. It was stated that when there is already an existent hospital under the name of Ram Krishna Seva Pratisthan in the neighboring area, there was no urgency involved for extension of the hospital in question. The said order of requisition was challenged on the ground thai the State Government had no occasion to form the requisite opinion that the said property was required for the purpose mentioned under the said Act. 3. AN affidavit- in- opposition was affirmed on 20th August 1987 by Jayanta Kumar Das on behalf of the state. In the said affidavit- in- opposition it was stated that the proposal bearing no. 3066-L-A (ii) dated 15-5-87 as made by the Land and Land Reforms Department was received by the First Land Acquisition Collector for requisition and acquisition of Land comprised In premises no. 108B, 108C, Sarat Bose Road and 1, 2A, 2B and 4A Lansdowne Place under the West Bengal Land (Requisition and Acquisition Act, 1948 for the purpose of maintaining supplies and services essential to the life of the community namely for expansion of Ram Krishna Mission Seva Pratisthan. 108B, 108C, Sarat Bose Road and 1, 2A, 2B and 4A Lansdowne Place under the West Bengal Land (Requisition and Acquisition Act, 1948 for the purpose of maintaining supplies and services essential to the life of the community namely for expansion of Ram Krishna Mission Seva Pratisthan. It was stated that a notice of requisition under Act II of 1948 was served upon the owners of the premises by hanging up the said notice on the wall of the premises concerned and fixing 16th May, 1987 at 10-30 a.m. for taking possession. It was further stated that the said notice was also affixed on the gate of the entrance to the said premises. It was stated that on the appointed date the Secretary, Ram Krishna Mission Seva Pratisthan was present but none on behalf of the owners found present and that possession of land in respect of the premises no. 1, Lansdown Place was taken and handed over to the Secretary. Ram Krishna Mission Seva Pratisthan. It was stated that before requisitioning the premises under Act II of 1948 the Collector enquired into the matter and satisfied that the land in question was needed for a public purpose. The records of the case pertaining to the said requisition were called for which were produced by the respondents at the time of hearing of the writ application. From the records of the case it was evident that the premises No. 1, 2A, 2B and 4A, Lansdowne Place was requisitioned for an expansion of Ram Krishna Mission Seva Pratisthan and after sometime, the State Government had released the premises No. 2B, Lansdowne Place for requisition and from the letter dated 15th May. 1986 written by the said Seva Pratisthan to the State Government it revealed that the purpose that was disclosed was for expansion of Ram Krishna Mission Seva Pratisthan. While the letter dated 23rd February, 1987 revealed the real purpose, viz. for rehabilitation for bona fide, evicted families due to acquisition of other premises for expansion of Ram Krishna Mission Seva Pratisthan. While the letter dated 23rd February, 1987 revealed the real purpose, viz. for rehabilitation for bona fide, evicted families due to acquisition of other premises for expansion of Ram Krishna Mission Seva Pratisthan. The purpose disclosed for and on behalf of Ram Krishna Mission Seva Pratisthan in letter dated 23rd February, 1987 was real purpose for which the property, in question has been requisitioned under the provisions of the said Act, and it was on the basis of this letter dated 23-2-87 that the order of requisition was passed alleging that it was required for the purpose of expansion of the said pratisthan suppressing the fact that was required not for expansion but for rehabilitation of persons who would be evicted from their premises which would be requisitioned for the purpose of expansion of the said Seva Pratisthan. The property in question was purchased by the petitioner on 23rd October, 1986 and the mutation in the Calcutta Municipal Corporation's record was made on 29th April, 1987 and that it was stated that no notice whatsoever was served upon the petitioner who was the recorded owner of the said premises. West Bengal Land Requisition and Acquisition Act, 1948 was; enacted to provide for requisition and speedy acquisition of land for the purposes of maintaining supplies and services essential to the life of the community increasing employment opportunities for the people by establishing commercial estates and industrial1 estates in different areas, providing proper facilities for transport, communication, intigation or drainage and creating better living conditions in urban or rural areas by the construction or reconstruction of dwelling places in such areas or for purposes connected therewith and incidental thereto. The power to requisition the property is vested upon the State Government under a Section of the said Act under which the State Government could requisition the property only for the purposes mentioned above and that sub-section (2) of Section 3 of the said Act provides that an order under sub-section (1) should be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier, not being the owner of the land, also on such occupier The mode of service of order passed under section 31 of the said Act is prescribed under rule 3 of the West Bengal (Requisition and Acquisition Rules, 1948. The said rule is as follows : "3. Manner of service of order. AN order under sub-section (1) of Section 3 shall be served on the owner of the land and where the order relates to land in occupation of an occupier not being the owner of the land, also on such occupier - a by delivering or tendering a copy thereof endorsed either by the person authorized by the Act to make the order or by the Collector to the person on whom the order is to be served or his agent, or b by fixing a copy thereof on the outer door of some conspicuous part. of the house in which the person on whom the order is to be served ordinarily resides or carries on business or personally works for gain, or c by fixing a copy thereof in some conspicuous part of the land to which the order 1stes and also in some conspicuous place of the office of the Collector." 4. IN para 16 of the writ application it was stated by the petitioner that none of the modes of service prescribed under the said Rules has been complied with in this case, inasmuch as, no notice or order under Section 3(1) of the said Act 11 of 1948 was served either on the petitioner no. 1 or the petitioner no. 2 or on the occupier of the same premises namely durwan of the petitioner and as such the mandatory provision of Section 3(2) of the said Act has Been completely breached and violated by the respondents herein. There was no affidavit affirmed by the Land Acquisition Collector. But an affidavit was affirmed by the said Jayanta Kumar Das, Deputy Secretary, Government of West Bengal, wherein it was only stated at para 8 that the issue, of non service of notice as alleged to para 15 was disputed and all acts done by the respondents were in accordance with law. It was also stated that requisition of premises No. 1, Lansdowne Place, was taken by hanging the said notice on the wall as the owners refused to receive the same, fixing 16-5-87 at 10.30 a.m. for taking possession. it was also stated that the copy of the said notice was also affixed on the gate of the entrance to the said premises. it was also stated that the copy of the said notice was also affixed on the gate of the entrance to the said premises. It appears from the affidavit of the State respondent in this case that there was only a small old dilapidated tin shed uninhabitated along with broken brick built structure standing there and the plot proposed to be requisitioned, was, vacant. Admittedly, the owner of the premises was not staying in the said premises and according to the petitioner, the durwan was occupying the said premises and who was staying there with the family. From the records produced before this court it is evident that the notice as required to be served under Section 3(2) was not served upon the petitioner who became the owner of the property on 23-10-86. The Mutation in the municipal record was made on 29-4-87 and thereafter the order of requisition was passed but not served upon the owner nor addressed to the owner. No attempt was also made to serve the same on the occupier of the premises in question. The mere statement was that notice was served upon the owner by hanging the notice on the wall of the premises as the owner refused to receive the same cannot be regarded as rebuttal to the specific allegation made in the writ application that no notice whatsoever was served upon the petitioner. Further the allegation was also vague and evasive. There was no evidence on record that any attempt was made to serve the notice upon the petitioner who was the owner of the premises. Further the allegation was also vague and evasive. There was no evidence on record that any attempt was made to serve the notice upon the petitioner who was the owner of the premises. The manner of service of order under sub-section (1) of Section 3 of the West Bengal Act II of 1948 has been prescribed inter alia to the effect that the order under Section 3(1) of the said Act II of 1948 shall be served on the owner of the land where the order relates to land in occupation of an occupier not being he owner of the land, also an such occupier by delivery of tendering a copy thereof endorsed either by the person authorized by the Act making the order or by the Collector to the person on whom the purported order has to be served or his agent or by fixing a copy thereof on the outer door of some conspicuous part of the house in which the person on whom the order is to be served ordinarily resides or carries on business or personally works for gain or by sending the same to the person on whom (he order is to be served by registered post with acknowledgement due. Admittedly, in the instant case, the order of requisition was not served under such rule (a) or (b) of rule 3. Rule 3 nowhere provides that it would be sufficient for the purpose of service of order of requisition if it is hung up on the wall of the premises sought to be requisitioned. The mandatory requirement of the rule was that such affixing of the order has to be made on the outer door of some conspicious part of the house in which the person on whom the order is to be served ordinarily resides or carries on business or personally works for gain. Admittedly, in the instant case, according to the respondents' own averment in the affidavit the said land was a vacant land having some old dilapidated structures and admittedly, no attempt was made to serve the notice by affixing on the outer door of conspicuous part of the house in which the person on whom the order is to be served ordinarily resides or carries on business on personally works for gain. The owner of the premises admittedly does not reside in the premises under requisition and in case the mode of service provided under rule 3(b) fails, in that event, the service was to be effected by registered post. On the basis of the materials on record placed before this court and on the basis of the averments male in the petition and the affidavit- in- opposition, it is clear that the order and or notice under Section 3(1) of the said Act was not served in accordance with the manner of service provided under the rules which are mandatory in nature. In respect of the requisition of the property under Act II of 1948, the only mode of giving effect to the order of requisition was by service of the order on the owner and/or occupier in accordance with the procedure laid down in the rules, such an order is never published in the gazette and there is no other means of publication of such requisition. Considering the scheme of the Act, the order of requisition under Section 3(1) of the said Act cannot be said to be valid and effective under the law, unless it is served in the manner prescribed in rule 3 of the said Rules. In case of acquisition of land under the Land Acquisition Act of other Acts, the order of acquisition has to be published in the official gazette and in that case also there is a provision for affixing a copy of the notice in the premises in question. When the legislature makes it clear that order under Section 3(1) "Shalt be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier, not being the owner of the land, also on such occupier". Considering the scheme of the Act such provision is mandatory and that order under Section 3(1) of the said Act could only be effective only on service as provided under sub Section (2) of Section 3 of the said Act. In the instant case, the order of requisition has not been served as provided in sub-section (2) of section 3 of the said Act. 5. In the instant case, the order of requisition has not been served as provided in sub-section (2) of section 3 of the said Act. 5. THE next question which calls for determination by this court is whether the premises could be requisitioned for rehabilitation of bona fide evicted families due to acquisition of other premises for the purpose of expansion of Ram Krishna Mission Seva Pratisihan. Apart from the premises in question which is the subject matter of the writ application, some other property had been requisitioned and that because of acquisition or requisition of some other properties, the persons residing in those properties which had been requisitioned, were sought to be rehabilitated by requisition of the property in question. Under the scheme of the Act any property could be requisitioned for maintaining supplies "and services essential to the life of the community and if it transpires that a minimum expansion of a hospital is necessary and it is very urgent, in that event, the State Government has jurisdiction to requisition the property in exercise of the power conferred under section 31 of the said Act, inasmuch as, establishment and expansion of a hospital certainly amounts to services which are essential to the life of the community. But the power under Section 31 of the said Act could not be invoked for the purpose of rehabilitation of persons who have been evicted because of requisition of some other properties which were acquired for the purpose of expansion of Ram Krishna Mission Seva Pratisthan. This is beyond the scope and ambit of the power of the State Government under section 3(1) of the said Act. It is one thing to say that that property is required for the purpose of expansion of a hospital and it is quite different thing to contend that for the purpose of expansion of hospital some other properties had been acquired and because of requisition of those properties, some, persons had been evicted consequent upon such requisition and those persons who had been evicted because of requisition of the properties, had to be provided for alternative accommodation and for providing: alternative accommodation it cannot be said to be a purpose which amounts to maintaining supplies and services essential to the life the community as provided under the Act. When the legislature had clearly laid down the specific purposes for which the property could be requisitioned, the State Government had to form an opinion on the basis of the relevant materials on record that the property in question was required for maintaining supplied and services essential to the life of the community. In the instant case, it appears that the State Government had travelled beyond the power conferred under the statute. It was stated on behalf of the State that the purpose was a public purpose. Under the provisions of Land Acquisition Act, the property could be requisitioned for any public purpose. But when the West Bengal Land (Requisition and Acquisition Act. 1948 had been enacted by the State Government for the purpose of requisition and speedy acquisition of land for certain specified purpose, and when in fact, there is another general law on subject viz. the Land Acquisition Act, in that event the State Government cannot travel beyond the scope of power conferred under this Special Act and to acquire the property which was otherwise permissible to be acquired under the Land Acquisition Act in the garb of power under Section 3(1) of the said Act. When there is a general statute and a Special statute and when the special statute clearly provides certain definite purpose for which the Act could be invoked, the State Government had no jurisdiction to travel beyond the purpose enumerated under the Act and acquired it for a different purpose. Land Acquisition Act is a general law for acquisition of the property and this means a special law enacted for some special purposes. The provisions of this Act could only be invoked for the purpose specifically provided under the Act. In judgment case, the only power was conferred upon the State Government to requisition the property for some specified purposes. Admittedly, the State Government had travelled beyond the object specified for the purpose of which the power could be exercised. The exercise of a statutory power is invalid unless the repository of the power has acted honestly and in good faith. The deliberate promotion of a purpose, be it public or private, alien to that for which the power was conferred is to be regarded as an act of bad faith ........................... The exercise of a statutory power is invalid unless the repository of the power has acted honestly and in good faith. The deliberate promotion of a purpose, be it public or private, alien to that for which the power was conferred is to be regarded as an act of bad faith ........................... "Where a prima facie case of misuse of power has been made out, it is open to a court to draw the inference that unauthorized purposes have been pursued if the competent authority fails to adduce any grounds supporting the validity of its conduct." [See para 74 in Halsbury' s Laws of England 4th Edition, Vol. 1(1]. 6. IT is also firmly established principle that when the power can be exercised on the existence of certain facts and/or situation and in the absence of those facts which confer jurisdiction, the power could not be exercised unless the facts which confer jurisdiction, exist. The jurisdiction of the authority concerned is dependent on the particular state of affairs. The absence of that state of affair makes it clear that the authorities concerned cannot exercise such power because of the absence of state of affair on the existence of which it has jurisdiction to exercise such power. At para 68 in Halsbury' s Laws of England Fourth Edition, Vol. 1(1) it was observed that "the exercise of statutory power on the basis of a mistaken view of the relevant facts, whether or not they are expressed to be jurisdictional facts in the relevant statutory' provision, will also be quashed where there was no evidence available to the decision-maker on which, properly directing himself as to the law, he could reasonably have formed that view. In some cases, courts have quashed decisions taken on the basis of a mistake of fact, without reference to the 'no evidence rule". In my view only for the purpose of rehabilitation of persons who have been evicted because of acquisition of other properties, the property could not be requisitioned under exercise of power conferred under section 13(1) of the said Act. Accordingly, the real purpose for which the property was requisitioned as evident from the letter dated 23rd February, 1987 written for and on behalf of the requiring body addressed to the State Government, the order of requisition cannot be made merely on the ground that it was a public purpose. Accordingly, the real purpose for which the property was requisitioned as evident from the letter dated 23rd February, 1987 written for and on behalf of the requiring body addressed to the State Government, the order of requisition cannot be made merely on the ground that it was a public purpose. For a public purpose a property could be acquired under the provisions of the Land Acquisition Act which is general law for acquisition of the property. But when there is a special law and when the special law prescribed the circumstances and purposes for which the summary procedure for requisition and acquisition of the property could be made, the same must be strictly construed and the property could not be acquired under the provisions of the said Act which is a special statute enacted for a special purpose and that the authorities concerned cannot travel beyond the purpose specifically mentioned in the statute. The powers under the provisions of West Bengal Act II of 1948 are drastic and very wide power. But confirmation of such power to the public authority is on trust and that trust is that the said power is not illegally exercised, see Srilekha Bidyarlhi v. State of U. P. reported in ( 1991 SCC 212 .]" The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly more liberal the construction if the procedural safeguards envisaged by the statute." Frank Futer, J. in Vitarelli v. Seaton, 359 US 535 at 546-47 said - "if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed - this judicially evolved rule of administrative law is not firmly established and if I may add right so he that takes the procedural award shall perish with that sword." The history of liberty" that the same learned Judge, "has largely been the history of observance of procedural safeguards". Mc Nobb u. U. S. 332 at 347 followed by the Supreme Court of India in Ranjit Thakur v. U. K. AIR 1987 SC 2386 . 7. Mc Nobb u. U. S. 332 at 347 followed by the Supreme Court of India in Ranjit Thakur v. U. K. AIR 1987 SC 2386 . 7. I spite of challenge being thrown that the respondents had acted arbitrarily and discriminatorily in releasing one of the properties after requisition when there is no provision for such release immediately after requisition and this had resulted in discrimination, but there is no reply to this allegation. As it is found that the order of requisition had not been served in accordance with the rules, either on the owner or on the representative of the owner occupying the premises and that the requisition of the property for rehabilitation of persons evicted due to acquisition of the properties which had been acquired for the purpose of expansion of Ram Krishna Mission Seva Pratisthan is not the purpose for which the provisions of West Bengal Land (Requisition and Acquisition Act, 1948) cannot be invoked, the order of requisition was wholly without jurisdiction, and without the authority of law. The said requisition was void on the face of it as the property was requisitioned for the purpose beyond the scope and ambit of the provisions of the said Act. 8. IN the result, the writ petition succeeds to the extent of the property in question, namely premises No. 1 and 2A Lansdowne Place. Since the owner of the other premises had not challenged the validity of the requisition of other properties, the relief granted to this writ application is only confined to the premises No. 1 and 2A, Lansdowne Place. Accordingly, the order of requisition under Section 3(1) of the West Bengal Land (Requisition and Acquisition Act, 1948 stands quashed and the respondents are directed to restore back to the petitioner forthwith. The writ petition succeeds to the extent indicated above. There will be no order as to costs. The Rule is made absolute without any order as to costs.