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2009 DIGILAW 801 (CAL)

Dilip Kumar Roy v. STATE OF WEST BENGAL

2009-11-13

G.C.GUPTA

body2009
Judgment : GIRISH CHANDRA GUPTA, J. (1.) The subject-matter of challenge in this writ petition is a notification dated 3rd May, 2001 issued under section 4 of the Land Acquisition Act, 1894 and published in the Sandhya Aajkal on 4th May, 2001. The facts and circumstances of this case may briefly be summarised as follows: By a notification dated 14th September, 1965 issued under section 29 of the Defence of India Act, 1962 a piece of land including pacca building therein measuring 5 bighas more or less was requisitioned by the Special Land Acquisition Collector, 24 Pgs. (North), for the purpose of setting up a fire station at a monthly rental of Rs. 1,800/-. On or with effect from 10th July, 1968 the Defence of India Act, 1962 became inoperative. The property was however not derequestioned except for a portion of the pacca construction which was released in the year 1962 itself. A writ petition was filed seeking release of the premises, registered as CR No.3683 (W) of 1981, which was disposed of by an order dated 15th September, 1983 directing the authorities to consider the representation of the writ petitioner. The petitioner preferred an appeal which was disposed of by a judgment and order dated 6th December, 1985 by a Division Bench of this Court directing the State to release the property and to make over the vacant possession to the owners. The State was also directed to pay ad hoc occupation charges subject to finalisation of the actual dues. The Division Bench however added that the order was without prejudice to the right of the State to validly acquire the premises fully or any part thereof in accordance with law. The possession was not made over to the owners. A notice instead under section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 was issued by the State which was challenged by the petitioners and their writ petition was registered as C.O. No. 934 (W) of 1986. The writ petition was dismissed by an order dated 11th September, 1981. The petitioners preferred an appeal which was registered as FMAT No.3236 of 1989. During the pendency of the appeal both the parties arrived at a settlement in pursuance whereof a compromise petition was filed by the parties jointly in November 1998. The writ petition was dismissed by an order dated 11th September, 1981. The petitioners preferred an appeal which was registered as FMAT No.3236 of 1989. During the pendency of the appeal both the parties arrived at a settlement in pursuance whereof a compromise petition was filed by the parties jointly in November 1998. An affidavit on behalf of the State of West Bengal, affirmed on 18th March, 2001 by one Shri Haider, affirming the settlement arrived at between the parties was filed wherein the following amongst other averments were made: "At present, therefore the concerned authority has decided to acquire only a part of the property measuring 33 cottahs 14 chittakas 26.58 sq.ft and to release the remaining portion of the land in favour of the owner by mutual compromise agreement subject to withdrawal of the instant appeal with reference to appellants letter sent to State Government on 28.8.92, 28.6.95, 6.11.95 and other occasion. It has been decided that after such withdrawal of instant appeal on the basis of the mutual compromise joint agreement as mentioned hereunder the concerned authority will have to be asked to issue notification under section 4 of the Land Acquisition Act, 1894 for acquisition of the property to be acquired as mentioned in the said agreement as there under and the remaining portion of the property is to be released from requisition by the concerned authority at present. The owner of the property is entitled to requisition compensation upto the date of acquisition or release of the property and accordingly a joint compromise agreement has been prepared." (2.) The pending appeal was disposed of by a judgment and order dated 6th April, 2001. Although the compromise petition also appears to have been listed along with the appeal but the Appellate Court did not advert to that aspect at all and decided the appeal solely on the question of legality of the requisition dated 10th January, 1986. The Appellate Court held that the requisition was illegal. The appeal, therefore, was allowed with a consequent direction upon the State to make over vacant and peaceful possession of the entire premises within a period not later than 4 weeks as also to pay the occupation charges. (3.) The State aggrieved by the order of the Appellate Court preferred a special leave petition wherein reference was specifically made to the compromise arrived at between the parties. (3.) The State aggrieved by the order of the Appellate Court preferred a special leave petition wherein reference was specifically made to the compromise arrived at between the parties. That, as a matter of fact, was one of the grounds advanced on behalf of the State before the Apex Court for interfering with the order of the Appellate Court which reads as follows: "For that the learned Division Bench committed serious error by failing to take judicial notice of the negotiations held between the parties at the instance of the respondents herein to facilitate smooth acquisition of a part of the requisitioned land. It is submitted that during the course of hearing both the parties had informed the learned Division Bench about the negotiations between the parties, yet the learned Division Bench failed to take notice of such subsequent developments in regard to the dispute." (4.) The special leave petition was dismissed summarily on 2nd May, 2001. On 2nd May, 2001 itself the State wrote to the Land Acquisition Collector, 24 Pgs. (North), asking him to issue a notice under section 4 of the Land Acquisition Act for acquiring the property in its entirety measuring about 1.7510 acres. Accordingly a notification dated 3rd May, 2001 under section 4 of the Land Acquisition Act was issued and advertised in a newspaper on 4th May, 2001. (5.) Challenging the notification dated 3rd May, 2001 and the advertisement dated 4th May, 2001 this writ petition was filed, inter alia, on the following ground appearing from paragraph 13 of the writ petition which reads as follows: "It is pertinent to mention the self-same respondent herein in their affidavit-of-opposition in the application of the petitioner being CAN No.650 of 2001 categorically stated that their purpose will be satisfied by acquiring only 33 kottahs of land. Whereas by the impugned notification the respondents vindictively issued for acquisition about 105 kottahs of land which proves beyond doubt that the respondents are biased and determine to harass the petitioners herein with the help of Government machinery which is not expected from the respondents herein who were highly posted officials. In any event the said notification which is not sustainable or enforceable inasmuch as the notification is a result of a vindictive motive of the respondents and nothing else. In any event the said notification which is not sustainable or enforceable inasmuch as the notification is a result of a vindictive motive of the respondents and nothing else. This Honble Court be pleased to cancel the notification being mala fide and arbitrary directing the respondents to withdraw and cancel the notification for the ends of justice.". (6.) Only other fact which needs to be mentioned is that an application before the Appellate Court alleging contempt of the order dated 6th April, 2001 was also filed in which an ad interim order dated 24th July, 2001 was passed: a) Quashing the notification dated 3rd May, 2001; b) Disposing of the present writ petition; c) Directing the alleged contemnors to appear in person on 24th August, 2001 (7.) The alleged contemnors preferred a special leave petition which was disposed of by an order dated 10th January, 2002 setting aside the order dated 24th July, 2001 insofar as the same had quashed the notification dated 3rd May, 2001. The present writ petition was also revived by that order of the Apex Court. Therefore the matter has now come up for final hearing. (8.) Mr. Moitra, learned Senior Advocate appearing in support of this writ petition, submitted that- a) need for the quantity of land sought to be acquired by the impugned notification is a prerequisite condition which is lacking in this case. b) The impugned notification, was issued in hot haste, for the land in its entirety, out of grudge than for any real public purpose and therefore the exercise of power is vitiated by malice. (9.) Mr. Basu, learned Advocate appearing for the State of West Bengal submitted that the Court will not sit in appeal over the efficacy of the need and purpose of the acquisition of the land. He disputed that the notification was issued out of grudge. He drew my attention to a note dated 14th June, 2001 appearing to have been prepared by the Director General of the West Bengal Fire Services disclosing that the land in its entirety was essential for establishing the proposed fire service station at Dum Dum. He also drew my attention to a project report for the same purpose. (10.) His second submission was that the petitioner had participated in the proceedings pertaining to the acquisition and an award has already been published. He also drew my attention to a project report for the same purpose. (10.) His second submission was that the petitioner had participated in the proceedings pertaining to the acquisition and an award has already been published. The petitioners have also filed an application for reference to Court under section 18 of the Land Acquisition Act. Therefore the petitioners are now estopped from challenging the legality of the impugned notification any further. Therefore the following questions arise for determination: 1) Whether the necessity for 106 kotthas of land approximately was there for setting up a fire service center on the date of exercise of power under section 4 of the Land Acquisition Act? 2) Whether the impugned notification was issued in colourable exercise of power and is tainted by malice? 3) Whether the petitioners are estopped from pursuing the writ petition by reason of their having participated in the proceedings of the acquisition at various stages? (11.) The impugned notification was issued on 3rd May, 2001 whereas the special leave petition of the State was dismissed by the Apex Court on 2nd May, 2001. The special leave petition preferred by the State was necessitated by the order dated 6th April, 2001 passed by the Division Bench allowing the appeal which in effect allowed the writ petition. We already have noticed that on 18th March, 2001 an affidavit in the pending appeal before this Court was filed on behalf of the State indicating therein that a fresh notification under section 4 of the Land Acquisition Act seeking to acquire 33 kotthas 14 chittaks 26.58 sq.ft shall be issued pursuant to the compromise already entered into between the parties. In that affidavit the following reason for acquisition of the aforesaid quantity of land was indicated: "As the Govt. is inclined to set up a permanent fire station building in several places at low cost planning therefore the cost of the land proposed in this settlement i.e. 33 cottahas 14 chittaks and 26.58 sq.ft will be around Rs. 37,71,344/-only as assessed by L.A. Collector, Barasat. If the land is to be acquired for the purpose of construction of fire station building an additional amount of 30% solatium on the land cost and 12% additional compensation on the market value of the land. I also crave leave to make further submission at the time of hearing. 37,71,344/-only as assessed by L.A. Collector, Barasat. If the land is to be acquired for the purpose of construction of fire station building an additional amount of 30% solatium on the land cost and 12% additional compensation on the market value of the land. I also crave leave to make further submission at the time of hearing. In support of the aforesaid statements xerox copy of some relevant documents are annexed herewith and marked as R-I by the appellants to arrange rehabilitation by making temporary construction for accommodating the existing fire station in the proposed land to be acquired by the State Govt. within six months from the date of the aforesaid order in this matter by Honble High Court." (12.) The aforesaid affidavit contemplated that the pending appeal would be withdrawn by the petitioners. The petitioners on their part did, in fact, apply for recording the compromise agreement entered into between the parties and that application was registered as CAN No. 650 of 2001 which was also appearing in the list along with the appeal. From the averments made in the special leave petition, quoted above, it appears that both the parties made their submission in that behalf before the Appellate Court. There was as such no lack of bona fide on the part of the petitioners to have the appeal disposed of on the basis of the settlement in writing. What ultimately went wrong in course of hearing of the appeal which brought about results not contemplated by either of the parties is not clear to me. Be that as it may, even after the order of the Appellate Court nothing prevented the State from issuing a further notification under section 4 of the Land Acquisition Act for acquiring 33 cottahas 14 chittaks and 26.58 sq.ft of land as already agreed to between the parties. Such a step was in fact contemplated by the State as would appear from the averments, quoted above, made in the affidavit affirmed by Sri Holder on 18th March, 2001 on behalf of the State. For issuing such a notice and for releasing the balance portion of the land the earlier notice under section 3(j) of the West Bengal (Requisition and Acquisition) Act, 1948 was required to be cancelled. This is precisely what was done by the Appellate Court by a judicial order rather than at the invitation of the parties. For issuing such a notice and for releasing the balance portion of the land the earlier notice under section 3(j) of the West Bengal (Requisition and Acquisition) Act, 1948 was required to be cancelled. This is precisely what was done by the Appellate Court by a judicial order rather than at the invitation of the parties. But this act of Court did not prejudice anyone. That might have been the reason why the special leave petition preferred by the State was summarily dismissed on 2nd May, 2001. On 3rd May, 2001 the impugned notification for the land in its entirety was issued which is wholly against the tenor of the affidavit affirmed on behalf of the State by Shri Haider on 18th March, 2001. In that affidavit the plan and purpose of the State of West Bengal as regards the user of the land was discussed in detail. There is nothing in that affidavit even to remotely suggest that the need of the State of West Bengal was there for anything more than 33 cottahas 14 chittaks and 26.58 sq.ft of land. On 2nd May, 2001 when the special leave petition was dismissed the Deputy Secretary to the State of West Bengal on the same day directed the Land Acquisition Collector to acquire the land in its entirety for the Dum Dum Fire Station. There is no indication in that letter dated 2 May, 2001 as to how did the requirement suddenly become more than three-fold. The subsequent note dated 14th June, 2001 and the project report cannot be used to justify the earlier exercise of power on 3rd May, 2001. If any authority for that proposition is needed reference may be made to the judgment in the case of Commissioner of Police vs. Gordhandas, reported in AIR 1952 SC 16 , wherein the following view in that regard was expressed: "We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct to those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." (13.) There is some substance in the submission advanced by Mr. Moitra that it is out of grudge that the impugned notification dated 3rd May, 2001 was issued to teach the writ petitioners a lesson rather than for any public purpose. An almost identical case was that of Collector (District Magistrate), Allahabad and Anr. vs. Raja Ram Jaiswal, reported in 1985 (3) SCC 1 , wherein construction of a cinema house supposedly prejudicial in the vicinity of the proposed library for which land had already been acquired was sought to be stopped by acquiring the land although for construction of the cinema house the Collector had already given his permission. Their Lordships deprecated the attempt in these words: "Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context in good faith means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive. In Municipal Council of Sydney vs. Campbell it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab vs. Gurdial Singh acquisition of land for constructing a grain market was challenged on the ground of legal mala fides. In Municipal Council of Sydney vs. Campbell it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab vs. Gurdial Singh acquisition of land for constructing a grain market was challenged on the ground of legal mala fides. Upholding the challenge this Court speaking through Krishna Iyer, J explained she concept of legal mala fides in his hitherto inimitable language, diction and style and observed as under : (SCC p. 475, para 9) Pithily put, had faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Bengamin Disraeli was not off the mark even in law when he stated: I repeat ......that all power is a trust- that we are accountable for its exercise-that, from the people, and for the people, all springs, and all must exist". After analysing the factual matrix, it was concluded that the land was not needed for a Mandi which was the ostensible purpose for which the land was sought to be acquired hut in truth and reality, the Mandi need was hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine. The notification was declared invalid on the ground that it suffers from legal mala fides. The case before us is much stronger; far more disturbing and unparalleled in influencing official decision by sheer weight of personal clout. The notification was declared invalid on the ground that it suffers from legal mala fides. The case before us is much stronger; far more disturbing and unparalleled in influencing official decision by sheer weight of personal clout. The District Magistrate was chagrined to swallow the bitter pill that he was forced to acquire land even though he was personally convinced there was no need but a pretence. Therefore, disagreeing with the High Court, we are of the opinion that the power to acquire land was exercised for an extraneous and irrelevant purpose and it was colourable exercise of power, namely, to satisfy the chagrin and anguish of the Sammelan at the coming up of a cinema theatre in the vicinity of its campus, which it vowed to destroy. Therefore, the impugned notification has to be declared illegal and invalid for this additional ground. " (14.) Reference may also be made to the judgment in the case of State of Bihar vs. P.P. Sharma, reported in 1992 (Suppl) (1) SCC 222 wherein the following, view was expressed: "Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether, the administrative action is contras to the objects, requirements and conditions of a valid exercise of administrative power. The action taken, must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. The action taken, must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide, for any such consideration or by fraud on power or colourable exercise of power, it cannot be allowed to stand." (15.) Mr. Basu relying on the judgment in the case of Baji Rao vs. State of Maharashtra, reported in 1995(2) SCC 442 , relying particularly on paragraph 10 contended that it is not for the High Court to evaluate either the need or the object of the acquisition. I am unable to accept this submission because even in paragraph 10 two prerequisites namely need and the object have been insisted upon and there is nothing before me to show that on 2nd May, 2001 when the Land Acquisition Collector was directed by the State to acquire the land in its entirety the need for the quantity of land had suddenly increased. The special leave petition was disposed of on 2nd May, 2001. The averments made by the State in its special leave petition quoted above were then valid and operative. Just because the special leave petition was dismissed it cannot be said that the factual situation as regards the necessity of the land as regards the length and breadth thereof also suddenly was changed. I therefore have no doubt in my mind that the decision to acquire the land in its entirety was not taken bona fide. (16.) Mr. Basu also relied on a judgment in the case of Hookumchand Gupta and Anr. vs. State of Haryana, reported in 2005(11) SCC 572 . This judgment in my view has no manner of application to the facts and circumstances of the case. In that case the owners were contending that the land acquired was far more than the actual need which was disputed by the authority and in those facts Their Lordships held that the question of release of the land could not arise. This judgment in my view has no manner of application to the facts and circumstances of the case. In that case the owners were contending that the land acquired was far more than the actual need which was disputed by the authority and in those facts Their Lordships held that the question of release of the land could not arise. But in the present case on 2nd May, 2001 when the Land Acquisition Collector was directed to proceed for acquisition of 106 cotthas of land approximately the case of the State in its special leave petition was that the requirement was for 33 cotthas and some chittaks only. (17.) Mr. Basu also relied on a judgment in the case of Daulat Singh vs. First Land Acquisition Collector, reported in AIR 2007 SC 471 . He relied on paragraph 73 for the proposition that public purpose might change with the passage of time. There can be no quarrel with that proposition. But the fact remains that the State has miserably failed to show that on 2nd May, 2001 immediately after dismissal of the special leave petition the need for land had suddenly shot up from 33 cotthas to 106 cotthas. (18.) For the aforesaid reasons the question No.1 is answered in the negative and the question No. 2 is answered in the affirmative. (19.) As regards the third issue Mr. Moitra referred to the order dated 12th June, 2001 passed in this writ petition in which liberty was granted to the writ petitioners to participate in the proceedings of the land acquisition without prejudice to their rights and contention in the pending writ petition. He therefore submitted that there can be no question of any estoppel operating against the writ petitioners simply by having participated in the acquisition proceedings without prejudice to their rights and contention. He submitted that in any event there can be no estoppel against the fundamental rights conferred by the Constitution. He therefore submitted that there can be no question of any estoppel operating against the writ petitioners simply by having participated in the acquisition proceedings without prejudice to their rights and contention. He submitted that in any event there can be no estoppel against the fundamental rights conferred by the Constitution. He drew my attention to a Division Bench judgment of this Court in the case of Amarendra Nath vs. State of West Bengal, reported in 67 CWN 647, wherein the following view was taken: "It may incidentally be mentioned at this stage that so far as Appeal No.35 of 1962 is concerned some objections were attempted to be taken on behalf of the State that it was no longer open to the appellant in that case to challenge the proceeding in view of the fact that the amount of compensation awarded had been withdrawn. There was some dispute before us as to whether the amount had actually been withdrawn but we think this aspect of the matter is wholly immatoriao. We are not persuaded that mere withdrawal of the compensation awarded will disentitle the awardee to relief if he is found otherwise entitled to it. Right to hold property is indeed a fundamental right and it has aptly been said on behalf of the appellants that there can be no waiver of such right. Acceptance of the award cannot, in our view, be taken as amounting to such waiver as would disqualify the awardee to ask for relief and obtain it under Article 226 in an appropriate case." (20.) Mr. Moitra also relied on a recent judgment in the case of Chairman of Indore Vikas Pradhikaran vs. Pure Industrial Cock and Chem. Ltd. and Ors., reported in AIR 2007 SC 2458 , for the proposition that the right to property is not only a Constitutional right but also a human right. (21.) He also relied on a judgment in the case of Olga Tellis and Ors. vs. Bombay Municipal Corporation and Ors., reported in AIR 1986 SC 180 , wherein the following view was taken: "The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath vs. Commr. vs. Bombay Municipal Corporation and Ors., reported in AIR 1986 SC 180 , wherein the following view was taken: "The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath vs. Commr. of Income Tax, Delhi, (1959) Supp (1) SCR 528 : AIR 1959 SC 149 , a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das, CJ and Kapoor J,) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy." (22.) The third issue, I am thus convinced, has to be answered in the negative gaurd being had to the There is no substance in the submission that the petitioners are estopped from pursuing the writ petition. (23.) For the aforesaid reasons this writ petition partly succeeds. The impugned notification for acquisition of land in excess of 33 cottahas 14 chittaks and 26.58 sq.ft is set aside. In other words the impugned notification shall remain valid for a piece of land measuring 33 cottahas 14 chittaks and 26.58 sq.ft and the petitioners shall be entitled to compensation for the aforesaid quantity of the land in accordance with law. The respondents are directed to restore possession of the balance quantity of land within eight weeks from the date of communication of this order. The petitioners, are also entitled to costs of this petition assessed at 600 G.Ms. (24.) Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. Writ petition succeeded partly.