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2008 DIGILAW 305 (CAL)

Bharat Lal Bijlani v. STATE OF WEST BENGAL

2008-03-18

JAYANTA KUMAR BISWAS

body2008
Judgment :- (1). The petitioners in these two writ petitions dated March 4, 2008 and March 7, 2008 respectively are questioning two notifications under Section 4 of the Land Acquisition Act, 1894 issued by the Collector and District Magistrate, Paschim Medinipur and published in the Official Gazette on November 27, 2006. The relevant portion of the notification questioned in W.P. No.4374 (W) of 2008 is set out below:- "Whereas, it appears to the Governor that land as mentioned in schedule below is likely to be needed to be taken by Government/ Government Undertaking/Development Authorities at the public expense for a public purpose, viz., employment generation and socio economic development of the area by setting up TELCON and ALLIED INDUSTRIAL UNITS in the Mouza Mubarakchowk, Jurisdiction List No. 210, P. S. Kharagpur, District Paschim Medinipur. It is hereby notified that for the above purpose an area of land comprising RSI LR plots as detailed below and measuring more or less 9.15 acres, (3.70575 Hectare) as specified below within the aforesaid Mouza." (2). Except the particulars of the lands, all other things in the other notification are identical with the ones in the notification part whereof has been quoted above. The petitioners claim that they own lands included in the schedules to the notifications. They did not submit any objection under Section 5A. The Section 6 declarations were published in the Official Gazette on November 27 and 30, 2007. It is submitted that the Collector is in the process of making the awards. (3). In reply to the question why at this belated stage the writ Court should permit the petitioners to question the Section 4 notifications, particularly when they chose not to submit any Section 5A objection, though they were at liberty to do that and in the objection they could contend that the acquisition in question was not for a public purpose, but for a private company, Mr. Sanyal, Counsel for the petitioners, has said that since the acquisition was actually not for a public purpose, but for a private company, and hence the proceedings were initiated without jurisdiction, the petitioners are entitled to approach the writ Court even at this belated stage, and that by not submitting objection under Section 5A they did not forfeit their right to approach the writ Court. He has said that the acquisition is for the fifth respondent in the writ petitions. He has said that the acquisition is for the fifth respondent in the writ petitions. The fifth respondent is:- "5. M/s. Telcon and Allied Industrial Unit, a Company Registered under the Companies Act, 1956, Service through the Managing Director, M/s. Telcon and Allied Industrial Unit, having its Registered Office at the Premises of Tata Iron and Steel Company Ltd., Jamshednagar, Post Office-Jamshedpur, District-East Singhbhum, State Jharkhand." (4). Facing with the question whether from the description of the fifth respondent it can be considered a company registered under the Companies Act, 1956, he has said that it is for the fifth respondent to come and say that it is not a private company within the meaning of the Companies Act, 1956. (5). Mr. Sanyal has then argued as follows. It is apparent from the questioned Section 4 notifications that the proceedings were initiated for acquisition of lands for a private company with which the State Government had entered into an agreement. Once it has been alleged in the writ petitions that the acquisition is actually for a private company, the Court should call upon the respondents to file affidavit stating that the entire compensation is not paid by the private company named in the notification. In view of what has been held in Devinder Singh and Ors. v. State of Punjab and Ors., 2008 (1) SCC 728 , unless the State Government shows that it is paying either the whole or a part of the compensation, it must be held that the acquisition is for the fifth respondent, a private company, for which acquisition, if any, could be made only following the provisions which are to be followed when an acquisition is made for a company. (6). Mr. Ray, Advocate General, has appeared for the State. His submissions are these. No prima facie case has been made out for entertaining the writ petitions. No averment has been made with supporting materials that the statement made in the Section 4 notifications that the acquisition is at public expense for a public purpose is not correct. No case has been made out in the writ petitions that before publishing the Section 4 notifications the State Government had entered into any agreement with any private company. In any case, the lands are not acquired for any private company. No case has been made out in the writ petitions that before publishing the Section 4 notifications the State Government had entered into any agreement with any private company. In any case, the lands are not acquired for any private company. The entire compensation is paid by the West Bengal Industrial Development Corporation Limited, a wholly owned company of the State Government, and hence there, cannot be any doubt that the acquisition is at public expense. Mr. Sarkar, counsel for the requiring body, has adopted the arguments made by Mr. Ray. He has only added by saying that by no stretch of imagination the fifth respondent can be said to be a company, within the meaning of the Companies Act, 1956. (7). The principal questions in the cases therefore are whether at this belated stage the petitioners, abandoning their statutory right under Section 5A, should be permitted to approach the writ Court, and whether, in any case, the Section 4 notifications are vitiated by any jurisdictional error. As to the first question, in my opinion, such writ petitions as these should not be entertained. The Section 4 notifications were published as back as November 27, 2006. The petitioners chose not to file any Section 5A objection. They could file objections contending that the acquisition was not at public expense for a public purpose, but for a private company, and hence could be done, if at all, following the provisions applicable to simple acquisition for a company, and invite the collector to decide the question. They consciously waived their statutory right and abandoned the opportunity. They allowed the State Government to make the Section 6 declarations, which were published on November 27 and 30, 2007. Having conducted themselves thus, in my opinion, they are no longer entitled to raise the question by filing these writ petitions, taken out only in March 2008. A Section 4 notification if is to be challenged, must be challenged at the earliest available opportunity. (8). The second question has been raised on the basis that when the acquisition was for a private company, without following the provisions applicable to a case of land acquisition for a company, the Section 4 notifications could not be issued. I agree with Mr. Ray that the petition/s have failed to make out a prima facie case that the notifications were published for acquisition of any land for a private company. I agree with Mr. Ray that the petition/s have failed to make out a prima facie case that the notifications were published for acquisition of any land for a private company. In the Section 4 notifications it was not stated that the lands would be acquired for a company. It was rather stated that the lands were likely to be needed for a public purpose, and that they would be acquired at public expense. In the face of such specific statement in the notifications, in my opinion, unless a case is made out in the writ petitions that actually the lands were not sought to be acquired at public expense for a public purpose, but at expense of and for a private company, there is no question of entertaining them, and calling upon the respondents to file their responses. (9). No case has been made out that the State Government at any point of time entered into any agreement with any private company for whose benefit the lands are sought to be acquired. In the absence of such a case made out, there is no reason for the writ Court to call upon the respondents to file affidavits stating whether any agreement was entered into. Devinder Singh has been relied on to support the contention that if the State Government entered into any agreement with any private company for whose benefit the lands are sought to be acquired, then the notifications issued by the Collector would be without jurisdiction. Mr. Ray has rightly said that even accepting that the acquired lands will ultimately be given to a company or companies for establishing industrial units, that mode of future utilization of the acquired lands will not make the notifications bad or without jurisdiction, especially when the acquisition is at public expense for a public purpose. In my judgment, the petitioners have totally failed to make out a prima facie case in support of their contention that the notifications are vitiated by incurable jurisdictional error. (10). Mr. Sanyal and Mr. Ghosh have argued a few more points. In my judgment, the petitioners have totally failed to make out a prima facie case in support of their contention that the notifications are vitiated by incurable jurisdictional error. (10). Mr. Sanyal and Mr. Ghosh have argued a few more points. It has been argued that for the area concerned a development authority within the meaning of the West Bengal Town and Country (Planning and Development) Act, 1979 has already been constituted, and hence in the absence of any notification issued under Section 10 of the West Bengal Town and Country (Planning and Development) Act, 1979 withdrawing any planning area from the operation of the provisions of the 1979 Act, the Collector could not issue the notifications. It has been argued that in view of the provisions of Section 38 of the 1979 Act, when the development authority itself is in a position to acquire the lands, there is no reason why the State Government should be permitted to initiate acquisition proceedings. I do not find any merit in these arguments. True it is that a development authority for the area concerned has been constituted, but no land use and development control plan has yet been approved by the State Government, and notified within the meaning of Section 38 of the 1979 Act. There is no question of denotification of the area in which the lands in question are located. Simply because a development authority has been constituted, I do not see how it can be said that it will create a bar to initiation of the acquisition proceedings. As a matter of fact, the development authority itself took note of the situation and adopted a resolution dated August 20, 2005 in favour of acquisition of the lands on the basis of requisition sent by West Bengal Industrial Development Corporation Limited. (11). It has been argued that aspects connected with ecology and environment, though were to be considered, were not considered. I am unable to appreciate how the question of environment can be relevant at the time of publication of a Section 4 notification. Mr. Sanyal has relied on Karnataka Industrial Areas Development Board v. C. Kenchappa and Ors., AIR 2006 SC 2038 .I do not see how this authority can be of any assistance in the present case. I am unable to appreciate how the question of environment can be relevant at the time of publication of a Section 4 notification. Mr. Sanyal has relied on Karnataka Industrial Areas Development Board v. C. Kenchappa and Ors., AIR 2006 SC 2038 .I do not see how this authority can be of any assistance in the present case. On the basis of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and Ors., 2007 (8) SCC 705 , it has been argued that the Section 4 notifications issued without jurisdiction contravened the petitioners constitutional right under Article 300A. I am unable to accept the contention. The acquisition proceedings have been initiated in due exercise of statutory powers, and hence no question of contravention of the provisions of Article 300A can arise. The further argument is that in view of Article 243ZD of the Constitution of India when a district planning committee at the District level has been constituted, ignoring that committee the State Government could not decide to acquire the lands in question for the purpose stated in the notifications. I do not see any merit in the argument. There is no provision in the Land Acquisition Act, 1894 that before publication of a Section 4 notification a district planning committee constituted under Article 243ZD is to be consulted. In any case, here, as Mr. Ray has said, the decision to acquire the lands was taken by the State Cabinet. (12). One argument has been made that in view of the provisions of Section 3(f) of the Land Acquisition Act, 1894 here it cannot be said that the lands are sought to be acquired for a public purpose, since West Bengal Industrial Development Corporation Limited, at whose requisition the lands are acquired, has already given out that it will allot the lands to private industrial houses for establishing industrial units. The argument is that when an acquisition is made for such a purpose at the instance of a corporation owned by the State, it cannot be said to be an acquisition for a public purpose. I am unable to accept the argument. If it is to be accepted, then, in my view, an extended meaning to the provisions has to be given. What Section 3(f) (iv) says is that the provision of land for a corporation owned or controlled by the State will be for a public purpose. I am unable to accept the argument. If it is to be accepted, then, in my view, an extended meaning to the provisions has to be given. What Section 3(f) (iv) says is that the provision of land for a corporation owned or controlled by the State will be for a public purpose. In the face of such clear and unambiguous provisions, I do not see any reason to say that in the present case the lands are not being acquired for a public purpose. (13). For these reasons, the writ petitions are dismissed. There shall be no order for costs. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for, within three days from the date of receipt of the file by the section concerned.