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2006 DIGILAW 490 (CAL)

SANDHYA MONDAL v. STATE OF WEST BENGAL

2006-08-07

ARUN KUMAR MITRA

body2006
ARUN KUMAR MTTRA, J. ( 1 ) CHALLENGE in this writ petition is the intended acquisition of residential plot with building allegedly for public purposes. In the notification preliminary published under Section 4 of act (1) of 1894 the purpose wasshown as widening of Raja S. C. Mullick road at Calcutta. The claim of the petitioner here is that his land with building is situated in such a place where it cannot be acquired for widening of Raja S. C. Mullick Road. Actually, according to the petitioners they have prepared a hand-sketch, which has been annexed to the writ petition which shows that after Raja S. C. Mullick Road thereto other adjoining premises. In o me side of the said premises (sought to be acquired) there is a newly r constructed Municipal Market and on the other side there was two storied residential building but no attempt was made to acquire any portion of either market building or the residential building although the property 1ies at the back of all the three premises keeping raja S. C. Mullick Road in front. Accordingly, the petitioners have prepared the hand-sketch. The petitioners' challenge in this writ petition is of two things; one is excepting one minor, child no notice was served under section 4 or 45 of the Act and the other challenge is the purpose specified in the initial notification under Section 4 is not public purpose or the petitioners apprehe nded that the purpose win be diversified. The respondent authorises (KMDA) in their submission or in their affidavit-in-opposition have stated that under Section 4 there is no provision for individual r notice excepting the notice under Section 4 (2 ). ( 2 ) THERE after the respondent/requisitioning authorities stated that the purpose as specified in the notification is public purpose which is widening of Raja S. C. Mullick Road. ( 3 ) AC cording to the KMDA authorities the land owners are debarred from challenging the proceeding inasmuch as the same has reached finality and compensation award has been passed and now the land owners are only entitled to notice for compensation. ( 4 ) THE petitioners alleged that not only no notice was served but also the purpose specified in the Calcutta Gazette will not be fulfilled by acquuiring this building without acquiring the adjacent building which is adjacent to Raja and C. Mullick Road. ( 4 ) THE petitioners alleged that not only no notice was served but also the purpose specified in the Calcutta Gazette will not be fulfilled by acquuiring this building without acquiring the adjacent building which is adjacent to Raja and C. Mullick Road. ( 5 ) FINDING prima facie case this Court deputed one Special Officer, Mr. Rabi Shankar Dutta, Advocate from the High Court and Mr. Dutta submitted a report and confirmed the sketch map annexed by the writ petitioners to be correct. The report has been made part of the record. Now, in favour of their rival claims or submissions made in the manner above the learned counsel for both the sides cited the following judgments as trader: citations on behalf of tfae petitioners (i) AIR 1963 SC 151 , (Smt. Somawanti and Ors. vs. The State of punjab and Ors.) (ii) 67 CWN 460 (Gadadhar Ghose vs. The State of West Bengal and Ors.) (iii) 67 CWN 647 (Amarenda Nath Nath and Ors. vs. State of West bengal and Ors.) (iv) 71 CWN. 499 (Durgapada Mukherjee vs. Land Acquisition (v) 81 CWN 471 (Nirmala Bala Sen vs. Jatindra Math Sen ). Citations on behalf of KMDA (i) AIR 1997 SC 1236 (Ramniklal N. Bhutta and Ann us. State of maharashtra and Ors. ). (ii) 1986 Vol. (1) SCC 566 (State of Gujarat vs. Panch of Nani hamam's Pale and Ors.) (iii) 1997 Vol. (8) SCC 487 (Mahadeo vs. Sub Divisional Officer ors. ). (iv) AIR 2000 SC 671 (Municipal Council, Ahmednagar and Anr. vs. Shah Hyder Belg and Ors. ). (v) AIR 1999 SC 436 (Bhagat Singh vs. State of U. P. and Ors. ). (vi) 1997 Vol. (9) SCC 544 (State of Punjab and Ors. vs. Sadhu Ram) ( 6 ) ON behalf of the State i. e. "the acquisition authority affidavit-in-opposition has been filed and the respondent no. 2 has affirmed the affidavit. In the affidavit it has been stated that mutation certificate has been stated to be issued by the Tollygunge Tax Department of KMC as per High Court order. It was stated that tax bill was issued in the name of Nemai Mondal up to 2002-2003. ( 7 ) IT has been stated in the opposition that as per declaration of land only a part of the land measuring 0. It was stated that tax bill was issued in the name of Nemai Mondal up to 2002-2003. ( 7 ) IT has been stated in the opposition that as per declaration of land only a part of the land measuring 0. 04 acre had been acquisitioned by the Land Acquisition Department for widening of Raja S. C. Mullick Road. ( 8 ) IT has been stated in the opposition of the State/respondent that a notice u/s. 9 of the Act-I of. 11894 has been served in favour of durgamoni Dasi and received by one of the petitioner viz. , Ramesh mondal, son of Late Nemai Mondal. A note was made over awarding compensation as being not verified (NV)' on record. This is the sunk and substance of the opposition of the State i. e. the acquisitioning authority. ( 9 ) THE fact re mains that the plot of land of the petitioners being premises No. 13 4, Raja S. C. Mullick Road was requisitioned by KMDA allegedly for the purpose of widening of Raja S. C. Mullick Road. Admittedly, a notice u/s. 4 of Act of 1894 was served on a minor boy out of the petitioners/owners. ( 10 ) IT appers from the report of the learned Special Officer, Mr. Rahi shankar Dutta, the learned Advocate that the sketch map annexed to the writ peti tion is correct ie. the location of the plot has been correctly shown in the sketch map annexed to the writ petition. In that even if the hand written sketch appears to be correct then when acquiring the adjacent building which is adjacent to Raja S. C. Mullick Road, widening of the road is not physically possible. ( 11 ) IT is also admitted in the opposition filed by KMDA as well as by State that one notice was served on the son of Nemai Mondal Now the admitted position. is that said son of Nemai Mondal is a minor. Then it is to be decided on the ; series of citations shown by both the parties as to whether the notice is valid on there is public purpose in the alleged acquisition ( 12 ) NOW, let us take up the citations of the KMDA authorities first. ( 13 ) IN the case of State of Gujarat us. Planch of Nani Hamam's Pole and Ors. ( 13 ) IN the case of State of Gujarat us. Planch of Nani Hamam's Pole and Ors. (supra) the Hon'ble Apex Court observed "section 4 (1) read with rule 1 of the Gujarat Rules cannot be interpreted to mean that a personal notice to each and every interested person is the requirement of Section 4 and in the absence of such a notice the proceedings of acquisition will he invalidated. " In the instant case a Gazette publication was made but without issuing notice u/s. 4 (2 ). The provisions of Section 45 was not complied with i. e. . no adult member out of the owners/interested person was served. Therefore, the judgment of the Apex Court referred to, in any event cannot be made applicable in the instant case. ( 14 ) NOW in the case of Mahadeo vs. Sub Divisional Officer and Ors. (supra) it has been observed by the Hon'ble Apex Court that requirement of personal notice u/s. 4 (1) of the Land Acquisition Act, 1894 read with gujarat Rules which are in pan materia with Maharashtra Rules is not mandatory. In this judgment the repetition of the same proposition is there. Once again it is ; stated that u/s. 4 (1) personal notice is not required. This case also does not help the KMDA authorities. ( 15 ) THE fourth citation is Municipal Council, Ahmednagar and Anr vs. Shah Hyder Belg and Ors. (supra ). In this judgment the Hon'ble Apex court rejected the writ petition in view of the fact that award has been finalized. In fact, the writ petition was filed after almost 16 years i. e. in the year 1992. The Hon'ble Apex Court observed that here acquisition proceeding is over and the award has been published u/s. 10 and after the award being finalized no objection is entertainable. In this case the purpose of opposition was also changed but no objection was made at that point of time. Only this writ petition was moved after a long gap. of 16 years and as such the Hon'ble Court dismissed the writ petition. But in the instant case the petitioner at the preliminary investigation stage i. e. immediately after notification u/s. 4 (1) has moved the writ petition. Only this writ petition was moved after a long gap. of 16 years and as such the Hon'ble Court dismissed the writ petition. But in the instant case the petitioner at the preliminary investigation stage i. e. immediately after notification u/s. 4 (1) has moved the writ petition. Through the KMDA authorities submitted that award has been finalized but the State did not support this contention through their affidavit-in-opposition or the State did not produce any record to show that the award has been finalished. In fact, provision of Section 12 "has not been complied with and in that view of the matter this case cited on behalf of KMDA does not go to support their case. ( 16 ) IN the case of Bhagat Singh vs. State of U. P. fit Ors. , (supra) the hon'ble Apex Court has observed that after acquisition change of user is permissible but in that case the Apex Court also observed that change of user must be changed for a public purpose that means the changed user is a public purpose but here the petition has been moved with a plea that intent of acquisition is not a public purpose under the peculiar facts and circumstances of the case or no notification has been published to the effect that part of the land will be used for any other public purposes. Therefore, the case of Bhagat Singh (supra) is also not applicable. ( 17 ) IN the decision of State of Punjab andors. vs. Sadhu Ram (supra)the Hon'ble Apex Court observed that after taking possession of the land consequent upon passing of the award the Government becomes absolute owner of the property free from all incumbents and no one can claim any title thereafter. But this judgment is in. no way applicable in the instant case because neither the Government has taken possession nor the award been passed and in no way the Government has become the absolute owner of the properties. ( 18 ) NOW remains the decision referred to in Romniklal N. Bhutta and anrs. vs. State of Maharashtra and Ors. (supra ). no way applicable in the instant case because neither the Government has taken possession nor the award been passed and in no way the Government has become the absolute owner of the properties. ( 18 ) NOW remains the decision referred to in Romniklal N. Bhutta and anrs. vs. State of Maharashtra and Ors. (supra ). In this judgment the hon'ble Apex Court thinking about the economic progress of the country and indutrialization thought about the infrastructure required for the same and cautioned Hie High Courts not to grant stay or injunction in each and every case of acquisition and the Hon'ble Apex Court also came up with the view that it is more plausible to suggest to award damage instead of quashing the acquisition proceeding but in the instant case the acquisition is not at all for public purpose and is ex facie, mala fide. In such a case awarding of damage or compensation with damage is not going to solve the purpose. ( 19 ) THESE are all the citations referred to on behalf of KMDA authorities and in my view with respect to the learned counsel of the KMDA authorities are not relevant and/or applicable in the instant case. ( 20 ) ON behalf of the petitioners citations have been made with reference smt. Somawanti and Ors. vs. The State of Punjab and ors. (supra ). In this judgment the Hon'ble Apex Court has observed or rather defined the term 'public purpose'. The said definition has been elaborated in paragraphs 24 and 31. The said two paragraphs are quoted hereinbelow: " (24 ). For ascertaining the extent to which the determination by the State is conclusive it would be desirable to examine the relevant provisions of the Act. The preamble states that the law is for the acquisition of land needed for public purposes and for companies and incidental matters connected therewith. Section 2 (f) defines public purpose as follows: "the expression 'public purpose' include the provision of village sites in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the government to make such provision: this is an inclusive definition and not a compendious one and * therefore, does not assist us very much in ascertaining the ambit of the expression 'public purpose'. Broadly speaking the expression 'public purpose' would, however, include a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Then there is Section 4 which enables the State to publish a preliminary notification-whenever it appears to it that land in any locality is needed or is likely to be needed fora public purpose. The other aspects of the section have no bearing upon the point before us and we need -not refer to them. Then there is Section 5a which gives to the person interested in the land which has been notified as being needed or likely to be needed for a public purpose or for a company, the right to object to the acquisition of the land. Such objection has to be heard by the Collector and after making such further enquiry as he thinks necessary the record has to be submitted to the appropriate Government along with the report containing the Collector's recommendations and the objections. Subsection (2) of Section 5a makes the decision of the Government on the objections final. This is followed by Section 6 Sub-section (1) of which provides that when the Government is satisfied that any particular land is needed for a public purpose, or for a company, a declaration should be made to that effect and such declaration should be published in the Official Gazette. Sub-section (2) specifies the matters including the purpose for which the land is needed which are to be set in the declaration. Sub-section (3) makes the declaration conclusive evidence of the fact that the land is needed for a public purpose or for a company, as the case may be. Section 17 of the Act confers special powers on the Government which are exercisable in cases of emergency. Sub-section (4) thereof provides that in those cases which fall under sub-Section (1) or sub-Section (2) the appropriate Government may direct that the provisions of section 5a of the Act shall not apply and also empowers the government to make a declaration under Section 6 in respact of the land to be acquired at any time after the publication of the notification under sub-Section (1) of Section 4, These are the provisions which have a bearing on the point under considieration. " " (31 ). Mr. " " (31 ). Mr. Pathak then contended that the question as to UK meaning to be given to the phrase public purpose' is not given conclusiveness by sub-Section (3) of Section 6. According to him, all that sub-Section (3) of Section 6 says is that the Government's declaration that particular land is needed for a public purpose or. a company shall be conclusive and that it does not say that the government sis empowered to define what is a public purpose and then say that the particular purpose falls within that definition. As already stated no attempt has been made in the Act to define public purpose in a compendious way. Public purpose is bound to vary with fee times and the prevailing conditions in a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose. " 21. The Apex Court in this decision has observed that public purpose is bound to vary with the times and the prevailing conditions and that is why the legislature has left it to the Government to say what is the public purpose and also to declare the need of a given land for public purpose. In the instant case though it appears that a notification under section 4 (1) has been published and public purpose has been shown as windening of Raja S. C. Mullick Road but from the sketch map annexed and the report of the Special Officer confirming the sketch map go to establish that the purpose shown in the Gazette cannot be served at all without acquiring the adjacent two plots which have not been acquired or notification for acquisition has been made. ( 21 ) THE learned counsel for the petitioners then referred to the decision reported in 67 CWN 460 (supra ). In this Division Bench judgment of this high Court it has been observed that "public purpose behind a land acquisition need not be expressly stated in the notification or declaration; but if the purpose be challenged before a court of law as being not for public purpose the same has to be established by evidence ahunde. In this Division Bench judgment of this high Court it has been observed that "public purpose behind a land acquisition need not be expressly stated in the notification or declaration; but if the purpose be challenged before a court of law as being not for public purpose the same has to be established by evidence ahunde. But the converse of One above is not a legal proposition, namely when the purpose is expressly stated in the notification or the declaration and that is challenged as not a public purpose, it is not permissible to add to that purpose other purpose or purposes, not notified or declared, and try to support the land acquisition both on the notified and declared purpose and also on the unnotified and undeclared purpose. " ( 22 ) IT has also been observed, in this judgment that "in the absence of a formal demand for justice by at the petitioners is not a fatal defect. hi the circumstances of the case, the petitioners may join in one application and attack the one declaration by which they all feel aggrieved. " ( 23 ) THEN comes the decision referred to on behalf of the petitioners which is at page 647 of 67 CWN (supra ). In this judgment another Division bench of this High Court observed "in the absence of proof of bad faith, sub-Section (3) of section 6 comes into play. It says that the declaration shall be conclusive evidence, that the acquisition is for a public purpose, It may be that in a given case the court win find it necessary to enquire into the true nature of the purpose for which an acquisition is sought to be made, whether it serves a public purpose in the true sense of the term; but that does not imply that into every acquisition proceedings there must be held an inquisitional enquiry as to whether the purpose is truly a public purpose. ". ( 24 ) THE next citation which has been made is reported in 71 CWN 499 (supra ). In this judgment the Hon'ble Division Bench of this High Court has observed "when the existence of public purpose or bonafides thereof is disputed by the petitioner, it is the duty of the respondent to deal with and reply to those allegations specifically in its affidavits-opposition. In this judgment the Hon'ble Division Bench of this High Court has observed "when the existence of public purpose or bonafides thereof is disputed by the petitioner, it is the duty of the respondent to deal with and reply to those allegations specifically in its affidavits-opposition. " ( 25 ) THE Hon'ble Division Bench also observed "public authorities enjoy large discretionary powers in public interest but those powers have to be exercised in good faith, openly and fairly. One of the tests of good faith is whether the authorities answer the question frankly and fairly when they are asked for what specific public purpose these powers are sought to be exercised. " ( 26 ) THE last citation on behalf of the petitioners is 81 CWN 471 (supra ). In this judgment the Hon'ble Division Bench has observed that "section 45 refers to habitual absence of the person concerned, not his casual absence at the address. " ( 27 ) I have already discussed/quoted/referred to all the citations placed by the learned counsel for the petitioners and KMDA Now, let me come to the points of decision. According to the rival contentions it appears that I will have to decide the following issues : (1) Whether at all any acquisition proceedings can be challenged in a writ proceeding or not. (2) Whether the procedure to be adopted for the purpose of acquisition of plot of land has been followed in the instant case. (3) Whether there is intention of the Government to acquire the land with building of the petitioners for public purpose as stated in the notification or not. (4) Whether, when it appears from the documents-on-record and the averments that Government authority cannot acquire the said land for the said public purpose, as has been mentioned in the notification then in that event Court can interfere and ask the Governmental authority to satisfy what is the public purpose for which the Government is acquiring the plot (5) Whether in the above background the writ petition is maintainable or not. ( 28 ) WHEN answering the first question it can be easily or safety said that acquisition proceedings can be challenged by a person aggrieved or person interested inasmuch as acquisition proceeding is the acquisition of somebody's private property and it is a Governmental action and any governmental action, if violates the provisions of the basic Act or any other statutory provision then in that event the writ is maintainable and it can be challenged before the Court of Law. This concept does not require any backing of Supreme Court decision inasmuch as this is a "very question or rather preliminary question of law. A writ of Mandamus can be issued when there is injustice on the part of Governmental authorities. A writ of Certiorari can be issued for the purpose of calling for the records and quashing the inferior Tribunal's order or the order of the governmental authorities. This question does not require any elaborate discussion because this is the preliminary point of law rather stands at the entry gate of Constitutional Law. ( 29 ) INSOFAR as the second issue is concerned, the Land Acquisition Act provides the steps very systematically. It divides the entire procedure into two parts. The first part is preliminary investigation regarding acquisition and entry for inspection of the property and the second part'is publication of award. , distribution of compensation and to decide the dispute if anybody raises any dispute regarding the compensation and in the midst of it a declaration provision is there u/s. 6 of the Act. Section 4 of the act provides for preliminary investigation and the section starts with the werdings "if the appropriate Government is of opinion". . . Now, u/s. 4 (1)if the Government is of opinion that any particular plot is required to be acquired for public purpose a Gazatte notification and/ or publication in two newspapers (one must be in the regional language) is to be made and/or a publication is to be given in a conspicuous place or the site so that it comes to the knowledge of the person interested/owners. Then comes the question of entry into the plot and building and/or inspection of the said site to fie acquired. Then comes the question of entry into the plot and building and/or inspection of the said site to fie acquired. Here is the question of entry into somebody's private property which that person holds and holds under the law and where 300 (A) also becomes the guard and supervisor and as such here the question of notice appriori is required and that too to be served in compliance with the service provisions of Section 45. Section 45 says that at least one adult member of the persons interested/owners must be served before invoking Section 4, Sub-section (2 ). ( 30 ) NOW, one chapter is over. In the instant case has it been done ? The answer isfirst part yes and second part no. i. e. notification has been published but notice has not been served in the light of the provisions of section 45. The petitioners say that one minor has been served with the notice and the State does not disputewhatever the requisitioning body kmda says. But the acquisitiioning authority the State must come forward with a positive assertion that the State followed Section 45 and has given notice to Mr. X, who is an adult member out of the interested persons. ( 31 ) NOW, let me scan the affidavit-in-opposition affirmed by the State. The affidavit-in-opposition on behalf of the State has been affirmed by one additional Land Acquisition Officer under Act-I of 1894. The affidavit comes out of total 10 paragraphs. In paragraph 3 the State has raised a question as to what was the actual relation of Nemai Mondal with deceased Smt. Durgamoni and Radharani Dasi as the predecessor-in-interest. ( 32 ) IT is admitted by the State as well as KMDA authorities that mutation has been done in favour of the petitioners in terms of the order passed by the High Court at Calcutta and when mutation has been done and that has not been challenged in the appellate Court that is to be taken as sacrosanct and it has been admitted in paragraph 4 of State's affidavit that a mutation certification has been issued by Tollygunge Tax department and that mutation has been done in terms of W. P. No. 15249 (W) of 2002 with effect from 17-05-2000. Thus, the State authorities accepted the ownership of the petitioners. Thus, the State authorities accepted the ownership of the petitioners. ( 33 ) IN paragraph 5 the State authorities say that declaration of acquisition of land u/s. 6 of the said Act has been notified and the petitioners have also a claim of ownership over Premises No. 134 Raja s. C. Mullick Road. The State authorities has stated in paragraph 8 and 9 that award has been published and compensation amount is ready but in paragraph 8 the State has clearly stated that note was made over awarding compensation as being 'not verified' (NV) on record. And this is the sum and substance of State's affidavit-in-opposition admitting that petitioners are owners, admitting that mutation has been done in then-favour, admitting that award has been published record not verified and also not disputing that notice in the fight of Section 45 has been served. ( 34 ) AGAIN the land Acquisition Act contemplates two separate and distinct forms of procedureone for fixing the amount of compensation describing it as award and the other for determining in case of dispute, the relative rights of the persons. Section 10, 11 and 12 provides for finalization of the award and compensation. There also Section 12 speaks of notice and nowhere it has been said that this notice has been duly served. Summing up the procedural aspect it is clear that the procedures to be adopted for acquiring a plot of land has not been property followed in the instant case. ( 35 ) ' Now, comes the "public purpose'. Public purpose has not been defined in the Act. Be that as it may, I am not going into the dispute as to whether this acquisition attempted is for public purpose or not and I am asserting the position that widening of public road is a public purpose but how the public purpose would be subserved? The sketch map annexed to the writ petition and confirmed by the report of the special Officer (not being challenged) shows that the plot of land with building sought to be acquired is not at the continguity of the road. The sketch map annexed to the writ petition and confirmed by the report of the special Officer (not being challenged) shows that the plot of land with building sought to be acquired is not at the continguity of the road. After the road one adjacent building is there on one side and on the other side of the road Municipal market constructed newly is there and existence of both the buildings are not disputed and in that view of the matter the authority cannot jump upon the plot of the petitioners leaving aside the contiguous plots to widen the public road. ( 36 ) IT has been observed in one of the decisions referred to above that normally Court would not interfere in acquisition proceedings if it is for public purpose but when a challenge is thrown that the intended acquisition is not for public purpose then inquiry is a must or the authority must have to satisfy the Court that this is for public purpose as specified or notified in the notification. The Governmental authority neither through any record nor through affidavit -in-oppositions and/or submissions could stisfy this how leaving aside the contiguous plots the authorities will take over the plot and widen the public road. The intention is clear from the facts that it is not for the purpose as specified in the notification. ( 37 ) IN the above context I must say that such a proceeding does not stand the test of legal sancity. I must have to say that aits proceeding must be quashed. ( 38 ) THE writ is very much maintainable in the instant case and when the writ is an efficacious remedy here, the Court cannot ask the petitioners to move like a shuttle cock and go to the Civil Court. The acquisition proceedings, therefore, in respect of the plot of the petitioners is quashed. ( 39 ) THIS writ petition is thus allowed. ( 40 ) THE Governmental authorities are restrained from interfering with the possession of the petitioners in respect of the plot-in-question. ( 41 ) IN the facts and circumstances there will no order as to costs. ( 42 ) URGENT xerox certified copy, if applied for, will be given to the parties as expeditiously as possible upon usual undertaking. Writ allowed. .