Santosh Kumar Chakraborty v. State of West Bengal — 1995 DIGILAW 444 (CAL)

JUDGMENT Ruma Pal, J.: None appeared on behalf of the added respondent, viz. North Bengal State Transport Corporation (NBSTC) after service. No affidavit-in-opposition has also been filed by the State-respondents although it appears that a copy of the affidavit-in-opposition was served by the respondents on the petitioner. I am, therefore, disposing of the application on the basis of the materials before me including the copy of the State respondents' affidavit handed over to Court by the petitioner. 2. The facts of the case relate to premises No. 73 and 73/1/2A, Bagmari Road, Calcutta (referred to as 'the' premises'). The petitioner No. 1 had purchased the premises in 1971. The premises were sought to be requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as 1948 Act'). The purpose of such requisition was stated for the purpose of maintaining supplies and services essential to the life of the community and for increasing employment opportunities along with other facilities by construction of a civic centre in C.I.T. Scheme No. VIII. The area covered was 5 Cottas 4 sq.ft. being prevalent to 0.962 acres or 0.0389 hectre. The possession was handed over by the petitioner No. 1 to the State Authority. The petitioner No.2 agreed to purchase the land from the petitioner No. 1 for Rs. 32 lakhs on April 30, 1993. The petitioner No. 2 has paid amount of six lakhs towards such purchase money. On September 6, 1993 the petitioner No.2 made a representation for derequisition of the land and for rent compensation and by an order dated 1/4th October, 1993 the land was released from requisition. This derequisition was made after the land had been kept in the possession of the Government for about 18 years. 3. On May 20, 1994 possession of the land was handed over by the State Authorities to the petitioners. On September 7, 1994 the State embarked on a fresh course of action to deprive the petitioners of their rights to the lands. According to the respondents on July 26, 1894 a notification was issued under s. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 1894 Act) which was published in the newspapers. The Official translation of the notice reads as follows:- Calcutta No. 2161 LA(2)/Health and Family Welfare dated 26.7.1994. According to the respondents on July 26, 1894 a notification was issued under s. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 1894 Act) which was published in the newspapers. The Official translation of the notice reads as follows:- Calcutta No. 2161 LA(2)/Health and Family Welfare dated 26.7.1994. As it appears to the Governor that the land in premises No. 73 Bagmari Road, Calcutta, in ward No. 32 P.S. Ultadanga District Calcutta namely North Bengal State Transport Corporation under the Transport Department of the Government of West Bengal may be required in the public interest for its modern Terminating Bus Depot therefore it is hereby notified that more or less 00389 Hector (00962 Acre) land in the above mentioned ward described in the Schedule hereunder written may be required for the aforesaid public interest at the cost of the Govt. This notice is given to all concerned under section 4 of Act 1 of 1894 and also according to the aforesaid notification. A plan of this land may be seen in the office of the 1 st Land Acquisition Collector, at No.5, Bankshall Street. By the power conferred to the aforesaid section the Governor hereby authorise the officers their employees and workers of the said Corporation to enter survey and do all other acts in the land required in accordance with the said section. This direction is made by the power conferred upon the Governor under s. 17.(4) of Act I of 1894 that as the provisions of s. 17(1) is applicable to the land described in the Schedule hereunder written, the provisions of s. 5(4) is not applicable. SCHEDULE P. S. Ultadanga, District Calcutta Total are-60962 Acre, 00389 Hector. BOUNDERY In the North : Acquired land of C. I. T. which has been handed over to the North Bengal State Transport Corporation. On the West : 40 ft. wide C. I. T. Road. On the South : The acquired land of C. I. T. which has been handed over to North Bengal State Transport Corporation. On the East : The acquired land of C. I. T. which has been handed over to West & North Bengal State Transport Corporation. By order of the Governor Tapendra Nath Khan, Deputy Secretary I. C. A. 2949 (2)/94. 4. On the East : The acquired land of C. I. T. which has been handed over to West & North Bengal State Transport Corporation. By order of the Governor Tapendra Nath Khan, Deputy Secretary I. C. A. 2949 (2)/94. 4. The notice appears to be a combined notification under s. 4 as well as 17 (1) and 17 (a) of the Act. 5. The writ petitioners have challenged this notification in this writ application. An interim order was issued restraining the respondents from taking any further steps. The interim order is still continuing. 6. In my opinion, the impugned notification cannot be sustained. At the outest it may be noted that the notification was issued by the Department of Health and Family Welfare. The body of the notification however shows that the acquisition is sought to be made for the North Bengal State Transport Corporation (referred to as NBSTC) which has got nothing to do with health or with family welfare. 7. The normal procedure for acquisition under the 1894 Act is that a preliminary notification is issued under section 4 whenever it appears to the appropriate Government that the land in any locality is likely to be needed for a public purpose. The notification is needed for a public purpose. The notification is directed to be published in the manner specified in the section After the publication of the notice under s. 5A any person interested in the land as notified is entitled to prefer an objection thereto within a period of 30 days from the date of publication. The matter is heard by the Collector where-after a report is submitted to the appropriate Government containing the recommendations of the Collector. The appropriate Government thereafter takes a decision on the objections made. After the consideration of the report and the decision of the appropriate Government a declaration is required to be made under section 6 of the 1894 Act specifying that the land is required for a public purpose. The procedure for making the declaration is also provided in s. 6(2). The declaration is followed by an order of acquisition under s. 7. After the order is passed the land is marked out, measured and planned and thereafter possession taken by the Government after giving notice to all persons interested that possession would be as taken. 8. The procedure for making the declaration is also provided in s. 6(2). The declaration is followed by an order of acquisition under s. 7. After the order is passed the land is marked out, measured and planned and thereafter possession taken by the Government after giving notice to all persons interested that possession would be as taken. 8. The Collector then can make an enquiry into the actual measurement and the value and claims to compensation and pass an award under section 11 of the Act. Under section 17 however special powers are conferred in the cases of urgency. Under section 17(1) even though no award is made after the publication of the notice under s. 9 possession may be taken and whereupon the land would vest absolutely in the Government free from all encumbrances. But before taking such possession the Collector is required to; (a) Tender payment of 80 percentum of the compensation for such land as estimated by him to the person interested entitled thereto; and (b) Pay it to them unless prevented by some recognised contingency. 9. Section 17(4) of the Act empowers the State Government to dispense with the provisions of s. 5A. In other words there need to be no hearing of objections. Where the provision of s. 5A are dispensed with the State Government must issue a declaration under s. 6 in respect of the land after the date of the publication of the notification under s. 4. 10. The other relevant provisions of the Act are Ss. 39, 40 and 41. section 39 provides inter alia that the provisions of Ss. 6 to 16 (both inclusive) shall not be put into force in order to acquire land for a company unless with the previous consent of the appropriate Government nor unless the company shall have executed the agreement mentioned in s. 41. It is not clear as to what phrase "nor unless" signifies i.e. whether there must be consent and an agreement and whether the agreement is an alternative to the obtaining of consent. In any event no consent can be given nor agreement be entered into without an enquiry held under s. 40. 11. Section 40 of the Land Acquisition Act, 1894 requires a report to be prepared by the Collector upon an enquiry regarding the need for acquisition for the purposes specified in that section. In any event no consent can be given nor agreement be entered into without an enquiry held under s. 40. 11. Section 40 of the Land Acquisition Act, 1894 requires a report to be prepared by the Collector upon an enquiry regarding the need for acquisition for the purposes specified in that section. For the purpose of such enquiry witnesses may be called and documents may be directed to be produced. 12. As far as the Agreement between the Company and the appropriate Government is concerned, that is provided for in s. 41 of the said Act. The Agreement must provide the payment of the cost of acquisition, the transfer, on such payment, of the land to the Company and the terms on which the land shall be held by the Company. The Agreement is required to be published as soon as may be after its execution under s. 42 of the said Act. Of course, the provisions of Ss. 39 to 42 of the said Act would not be applicable, if the acquisition is made by reason of any earlier Agreement between the appropriate Government and the Company under which the Government was bound to provide land to the Company. 13. Keeping in view the aforesaid provisions of the said Act, it is clear that the acquisition has not been made in compliance with any of these provisions. The impugned order in terms speaks of having been passed in exercise of powers under s. 17(1) and s. 17(4) of the said Act. No other section is referred to. Neither of these sections dispenses with the publication of the declaration under s. 6 of the said Act. It appears to be admitted from the affidavit-in-opposition that no such declaration was made at all. 14. Furthermore, there is no case of urgency made out justifying the use of such emergent powers by the Authorities concerned. The pre-condition to the exercise of such power being absent, the order cannot be sustained. 15. In the third place it is not in dispute that NBSTC has entered into possession of the land in question. This was done without tendering or making payment in terms of s. 17(3-A) of the said Act at all, and there is no averment to that effect in the affidavit of the respondents. 16. Joint Notification under Ss. 15. In the third place it is not in dispute that NBSTC has entered into possession of the land in question. This was done without tendering or making payment in terms of s. 17(3-A) of the said Act at all, and there is no averment to that effect in the affidavit of the respondents. 16. Joint Notification under Ss. 4, 17(1) and 17(4) of the said Act cannot by virtue of the language used in these sections be issued. There must be a gap between the publication of the Notification under s. 4 of the said Act and the exercise of power under Ss. 17(1) and 17(4) of the said Act. The appropriate Government appears to have short circuited the entire procedure and deprived the petitioners of their right to the property without any authority of law. 17. Even assuming that the provisions of s. 39 of the said Act are applicable, nothing has been shown to this Court that any enquiry was held under s. 40 of the said Act by the Collector or any other authorised Officer on the basis of which either the consent could be given or any Agreement be centred into. Indeed, there is no reference to any consent in the impugned order at all or in the affidavit-in-opposition. No Agreement as required under s. 41 of the said Act has been published till date between the appropriate Government and NBSTC. It is also not the case of the respondents that there was any prior Agreement between the appropriate Government and NBSTC justifying the exclusion of compliance of Ss. 39 to 42 of the said Act. This right to exclude must be strictly proved. On the other hand, it is the specific case of the State respondents as appears from the copy of their affidavit-in-opposition that the acquisition was made not in pursuance of any previous Agreement but only because the State Government had been approached with a proposal received from the Transport Department. A proposal is a far cry from an Agreement as envisaged under s. 43 of the said Act. 18. Whichever way the matter is looked at, the impugned order cannot stand and is accordingly set aside and quashed. The writ application is accordingly allowed. 19. A proposal is a far cry from an Agreement as envisaged under s. 43 of the said Act. 18. Whichever way the matter is looked at, the impugned order cannot stand and is accordingly set aside and quashed. The writ application is accordingly allowed. 19. Let a writ in the nature of Mandamus in terms of prayer (a) of the petition and a writ of and/or in the nature of certiorari in terms of prayer (b) of the petition be issued. 20. The respondents are directed to make over possession of the land in question, wrongfully taken possession of by them, to the petitioners within a period of 6 weeks from the date of communication of this Judgment and Order. 21. The writ petition is accordingly disposed of. 22. All parties concerned are to act on a xerox signed copy of this Judgment and Order on the usual undertaking. Application allowed.