Baijnath Prosad v. State of West Bengal — 1992 DIGILAW 131 (CAL)

JUDGMENT The judgment of the Court was as follows :–– These two writ applications have been heard together, as the cause of action for both these matters arise out of the same set of facts, and the decision in one will also govern the other. 2. Shorn of details, the writ petitioners in both the applications claim to be carrying on business at the following premises :–– 1. 6 Gariahat Road (South) Calcutta-700 031, 2. 37/1A, Station Road, Calcutta-700 031, 3. 39, Station Road, Calcutta-700 031, 4. 40, Station Road, Calcutta-700 031, 5. 41, Station Road, Calcutta-700 031, 6. 43, Station Road, Calcutta-700 031. On or about 3rd May, 1988, the petitioners were served with a notice issued by the Chairman, Board of Trustees for the Improvement of Calcutta, under Section 45 of Bengal Act V of 1911, amended by Bengal Act VIII of 1931 and West Bengal Act XXXII of 1955. The contents of the said notice are as follows :–– "Take notice that the Board of Trustees for the Improvement of Calcutta propose to acquire the land comprised in premises No. 6 (part) Dhakuria Station Road in Constituency No. 92 for the purpose of carrying out Street Improvement Scheme 101 (supply) widening of Dhakuria Station Road between the scheme 101 and LXXII. If you desire to object to the acquisition of the said land you are required, under Section 45 of Bengal Act V of 1911, as amended by Bengal Act VIII of 1931 and West Bengal Act XXXII of 1955, to state your reasons in writing within sixty days from the date of service of this notice." 3. According to the petitioners prior to the service of the aforesaid notice, another notice dated 22nd April, 1986, issued by the Land Acquisition Collector, Calcutta, had been served upon them, informing them that a portion of the premises where the petitioners' shops were located, would be taken over in connection with General Improvement Scheme No. 101 of the Calcutta Improvement Trust for widening of Dhakuria Station Rod, and the petitioners were directed to put in their claims for compensation. The petitioners also came to learn that L. A. Case No. 101-14 of 1986 had been initiated for acquisition of the said premises. However, in view of the provisions of Section 11A of the Land Acquisition (Amendment) Act, 1954, the said scheme lapsed after 23rd September, 1986. 4. The petitioners also came to learn that L. A. Case No. 101-14 of 1986 had been initiated for acquisition of the said premises. However, in view of the provisions of Section 11A of the Land Acquisition (Amendment) Act, 1954, the said scheme lapsed after 23rd September, 1986. 4. According to the petitioners, a supplementary scheme was unlawfully framed and was described as Scheme No. 101 (Supplementary) between Scheme No. 101 and Scheme No. LXXII, and, although, the premises sought to be acquired under the new scheme, was already the subject matter of the earlier acquisition proceedings, the same were again included within the fresh acquisition proceedings commenced in respect of the Supplementary Scheme. According to the petitioners, there could not be two acquisition proceedings in respect of the self-same premises, and the supplementary scheme and the acquisition proceedings started in connection therewith, were, therefore, bad, illegal and unlawful and had been started with an ulterior motive. According to the petitioners, the supplementary scheme was not for any public purpose as the Dhakuria Station Road was sufficiently wide for purposes of traffic. 5. On receiving the aforesaid notices, the petitioners made representations that they were earning their livelihood from the shops being run by them, and if the premises on which the shops were situated were acquired, they would lose their only source of income, and no amount of compensation would compensate their loss unless they were provided with alternate accommodation in the same locality or near the place where their shops were located on Dhakuria Station Road, at the same rental. Although, such representatives were made in 1988, the petitioners have not been informed of the decision taken by the Calcutta Improvement Trust thereupon. 6. The further case of the petitioners is that Committee was appointed by the Board of Trustees for considering the objections and representations received in connection with the concerned scheme. The petitioners were served with a notice dated 28th July, 1988, issued by the Secretary of the Trust, informing them that a meeting of the said Committee would be held on 4th August, 1988, and that they could be present at the meeting either personally or be represented by an authorised gent or lawyer, to present their respective cases. The petitioners were served with a notice dated 28th July, 1988, issued by the Secretary of the Trust, informing them that a meeting of the said Committee would be held on 4th August, 1988, and that they could be present at the meeting either personally or be represented by an authorised gent or lawyer, to present their respective cases. Although, the meeting was duly held, and the petitioners, appeared before the Committee, the decision of the Committee as to whether the petitioners would be provided with alternate accommodation, had not been conveyed to them. 7. Thereafter, without being informed of the decision of the aforesaid Committee, the petitioners were served with a notice dated 23rd November, 1990, directing them to submit a detailed statement of each person in occupation of the premises proposed to be acquired and the nature of their interest therein. By a special notice in form 4, the petitioners were also asked to appear personally before the Second Land Acquisition Collector, Calcutta, if they wished to make any further objections regarding the measurements taken of the lands proposed to be acquired. 8. Being aggrieved by the decision of the respondents to take over possession of the premises under their occupation, the petitioners moved a writ application and an interim order was passed to the effect that the petitioners' possession should not be disturbed. During the pendency of the writ application the Second Land Acquisition Collector, Calcutta, made an Award under Section 11 of the Land Acquisition Act, 1894, regarding the amount of compensation to be paid to the petitioners. The petitioners were also informed by several notices dated 4th March, 1991 and 7th March, 1991, issued by the Second Land Acquisition Collector, Calcutta, that possession of their shop-rooms would be taken over on 11th March, 1991, at 12 noon, and they were also asked to receive the compensation payable to them in terms of the aforesaid Award on the same day at 3 p.m. 9. These two writ applications have been filed by the writ petitioners, challenging the legality and validity of the aforesaid notices. 10. Appearing for the writ petitioners in both the applications, Mr. Ashoke Ganguly, learned Advocate, submitted that the Calcutta Improvement Act, 1911, made provision for the incorporation of a Board to be called "the Trustees for the Improvement of Calcutta". Mr. 10. Appearing for the writ petitioners in both the applications, Mr. Ashoke Ganguly, learned Advocate, submitted that the Calcutta Improvement Act, 1911, made provision for the incorporation of a Board to be called "the Trustees for the Improvement of Calcutta". Mr. Ganguly submitted that Section 35A of the aforesaid Act empowered the Board, subject to the provisions of the Act, to undertake any works and incur any expenses for the improvement and development of any area to which the Act had application and for the framing and execution of such improvement schemes as may be necessary from time to time. Mr. Ganguly, thereafter, referred to Sections 35-C and 35-O of the ACt which deal with matters to be provided for in improvement schemes and the types of such improvement schemes, which included re-housing schemes. 11. Mr. Ganguly then referred to the provisions of Section 39-B of the aforesaid Act which read as follows :–– "39-B : Re-housing persons displaced by improvement schemes. The Board may frame schemes (in this Act called re-housing schemes) for the construction, maintenance and management of such and so many dwellings, shops and other classes of accommodation as they may consider ought to be provided for persons who–– (a) are displaced by the execution of any improvement scheme sanctioned under this Act, or (b) are likely to be displaced by the execution of any improvement scheme which it is intended to frame, or to submit to the State Government for sanction under this Act.” 12. In this connection, Mr. Ganguly also referred to the provisions of Section 47 of the aforesaid Act, and more particularly Section 47(2)(f) thereof, which provides that along with any application by the Board to the State Government for sanction of an improvement scheme, a statement is to be filed in respect of the arrangements made or proposed by the Board for the re-housing of persons who were likely to be displaced by the execution of the scheme. The attention of the court was also drawn to the preamble of the Act wherein among the objects for enactment of the Act, one of the objects relates to execution of schemes for the re-housing of persons displaced by the execution of improvement schemes. 13. Mr. The attention of the court was also drawn to the preamble of the Act wherein among the objects for enactment of the Act, one of the objects relates to execution of schemes for the re-housing of persons displaced by the execution of improvement schemes. 13. Mr. Ganguly submitted that from the aforesaid provisions it would be evident that the legislature intended that persons who were displaced by any improvement scheme of the Board should be provided with alternate accommodation. 14. In support of his contentions, Mr. Ganguly referred to and relied upon the decision of the Supreme Court in the case of (1) Karjan Jalasay Yajana Assargrasth Shkar and Sangarsh Samity v. State of Gujrat & Others, reported in 1986 (Suppl.) Supreme Court Cases at page 350. I shall refer to the said decision later, if necessary. 15. Appearing for the Trustees for the Improvement of Calcutta, Mr. Samarjit Gupta submitted that the provisions of Section 45 and 49 of the Calcutta Improvement Act, 1991, were similar to the provisions of Sections 4 and 6 of the Land Acquisition Act, 1894. Mr. Gupta also submitted that the proposal for acquisition relates to street scheme and not a general improvement scheme. Mr. Gupta submitted that the relevant provision of the Calcutta Improvement Act, 1911, applicable to the facts of the present case, was Section 39 which dealt with "Street Schemes", and not Section 39B which dealt with "general improvement schemes". Mr. Gupta submitted that while in relation to general improvement schemes provision had been made to provide alternate accommodation to persons affected by such schemes, no such provision had been made in relation to Street Schemes, as would be evident from the provisions of Section 39 of the aforesaid Act. According to Mr. Gupta, even Section 47 of the said Act relates to improvement schemes and clause (f) of sub-Section (2) of Section 47 has to be read in the said context. 16. In support of his aforesaid contention. Mr. Gupta referred to and relied upon two decisions of this Court in the case of (2) Ram Lakhan Sarma & Anr. v. The Second Land Acquisition Collector & Ors., reported in 73 CWN at page 239 and (3) Muneshwar Ram v. The Second Land Acquisition Collector, reported in 71 CWN at page 292. In support of his aforesaid contention. Mr. Gupta referred to and relied upon two decisions of this Court in the case of (2) Ram Lakhan Sarma & Anr. v. The Second Land Acquisition Collector & Ors., reported in 73 CWN at page 239 and (3) Muneshwar Ram v. The Second Land Acquisition Collector, reported in 71 CWN at page 292. In the said case, this Court held that the benefits of Section 39C of the aforesaid Act would not be available in respect of a street scheme. 17. Mr. Gupta then submitted that while the directions contained in Section 39C of the Calcutta Improvement Act, 1911, were mandatory in nature, those contained in Section 39B were of a directory nature and vested the Trustees with discretionary powers to frame a re-housing scheme while executing an improvement scheme, which included a street scheme. 18. It will not, however, be necessary form to go into and decide the rival contentions of the respective parties in view of the next submission of Mr. Gupta. Mr. Gupta submitted that, although, the aforesaid Act did not ipso facto make provision for alternate accommodation to be given to persons displaced by street scheme; in the instant case, the Trustees had in exercise of the discretion vested in them under Section 39B of the aforesaid Act, framed a re-housing scheme to provide alternate accommodation to all those persons whose names were included as awardees in the Award published by the Land Acquisition Collector, Calcutta, in respect of the premises forming the subject matter of the acquisition proceedings in connection with C. I. T. Scheme No. 101 (Suppl) in ward No. 92 of the Calcutta Municipal Corporation. Several lists of such awardees in respect of the different premises to be acquired for the aforesaid scheme, have been filed by Mr. Gupta, and admittedly all the petitioners in the two writ applications have been named therein. 19. The aforesaid decision of the Trustees has simplified the matter considerably, and the learned counsels appearing for the State and the State respondents have also adopted the submissions of Mr. Gupta. 20. The two writ applications are, therefore, disposed of in terms of the decision taken by the concerned respondents to provide alternate accommodation to the writ petitioners while implementing the abovementioned scheme, being C. I. T. Scheme No. 101 (Suppl). Gupta. 20. The two writ applications are, therefore, disposed of in terms of the decision taken by the concerned respondents to provide alternate accommodation to the writ petitioners while implementing the abovementioned scheme, being C. I. T. Scheme No. 101 (Suppl). The said respondents are directed to make such alternate accommodation available to the writ petitioners in both the writ applications in terms of their aforesaid decision before taking possession of the premises under the occupation of the writ petitioners in pursuance of the aforesaid scheme. Thereafter, the Trustees and the State respondents will be entitled to take possession of the premises under the occupation of the petitioners and to proceed with the aforesaid scheme. 21. There will be no order as to costs. The xerox copy of this order be given to the learned Advocates for the parties upon usual undertaking.