Calcutta High Court
The Registrar, Jadavpur University vs Smt. Alka D. Hemani And Others on 13 September, 1990
Equivalent citations: AIR1991CAL140, AIR 1991 CALCUTTA 140, (1990) 2 CAL HN 437
ORDER A.M. Bhattacharjee, J.
1. I have had the advantage of going through the judgment preparred by my learned brother Ray, J. and I am glad to express my full concurrence. I agree With Ray, J. that the appeal is to be allowed and that the order of requisition, passed under Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948, assailed with success in the Court below, is to be upheld for the reasons stated in appreciable details by my learned brother. But my unqualified concurrence notwithstanding, I have thought it fit to add a few words in respect of the proviso to Section 3(1) of the aforesaid Act. I am inclined to hold that the words of the Proviso warrant liberal, and not literal, approach and should be purposively construed without any rigid adherence to the letters of the law.
2. Sub-section (1) to Section 3 of the Act authorises requisition of land by the State Government, with a view to its subsequent acquisition, for certain purposes specified therein and one such purpose is "maintaining supplies and services essential to the life of the community". Though Mr. M. P. Banerjee appearing for the writ petitioner, Respondent No. 1 before us thought it fit to concede, Mr. A. P. Chatterjee arguing the case at a later stage, has seriously contested that imparting of education by establishing University or other educational institution is at all essential to the life of the community within the meaning of Section 3(1). This argument must at once be repelled as the decision of the Supreme Court in Maneka Gandhi, and the wave of decisions following Maneka (supra) have settled it beyond doubt that the expression "life" vis-a-vis a human being can never mean the mere animal or physiological existence but would also include anything and everything that is necessary for the growth, sustainance and development of its rational self and its intellectual and moral faculty. I may, by the way, refer to one such post-Maneka decision of the Supreme Court in Francis Coralie Mullain, AIR 1981 SC 746 where (at page 753), the expression "life" in Article 21 of the Constitution has been construed to include "facilities for reading, writing and expressing oneself in diverse form" and that brings in education. This, if I may add, is in perfect consonance with our ancient cultural heritage, according to which the object of human life is to achieve liberation, liberation from ignorance, prejudices, selfishness, avarice and all that and proper education alone can effect such liberation --Sa VidyaYa Vimuchyaye". To contend that education is not essential to our community is to concede that we have not reached even the rudimentary stage of civilisation and that the effulgence of our ancient cultural, heritage of the oldest pedigree is now engulfed in abyssmal darkness. I must, therefore, hold, in agreement with Ray, J., that requisition for the purpose of a University or other educational institution is for a purpose essential to the life of our community within the meaning of S. 3(1) of the Act.
3. The Proviso to Section 3(1), however, provides that "no land used for the purpose of religious worship or used by an educational institution shall be requisitioned under this Section". It is not disputed that the land and structures sought to be requisitioned in this case were already in the occupation of the appellant Jadavpur University as a tenant and the writ petitioner, who has now purchased the property and is a respondent before us, has accordingly urged that the land in question being already in the use and occupation of an educational institution, could not be requisitioned even for that institution, in view of the prohibition contained in the Proviso. Ray, J., has repelled this contention mainly on the ground that the same was at pleaded by the writ petitioner in his petition which has accordingly deprived the appellant from meeting or otherwise contesting this question. I am, however, inclined to think that there is other good ground also to reject this contention.
4. In interpreting a statutory provision, a purely 'literal approach' is now being steadily discarded in favour of 'purposive approach.' Gone are the days when the Courts used to construe a legislative provision with the aid of Lexicon and Grammer only, so much so that Justice Frankfurter has come out with his classical dictum that there is no surer way to misread a provision than too read it literally. Even in the hoary past, our ancient Jurist Brihaspati declared that a decision must not be made merely on the letters of the Code, for that might lead to an unreasonable decision resulting in miscarriage of justice -- "Kevalam Sastramasritya Na Kartyavo Hi Nirnaya, Yuktithine Vichare Tu Dharmahani Prajayate."
5. Now the clear purpose behind the proviso countermanding requisition of land used by an educational institution is that, however otherwise essential to the life of the community the purpose of requisition may be, the normal functioning or the tempo of an educational institution must not be disturbed by depriving the institution of the possession of the land used by it. But where, as here, the very purpose of the requisition of the land, though already in the occupation of an educational institution, is not at all to deprive the institution of its use and 'occupation, but to further secure its possession on the terra firma of a stautory requisition, the prohibition in Proviso must stand outweighed. Suppose, the Proviso prohibited requisition of any land which was used for defence purposes. But if, in a given case, some land and structures outside Municipal area are used by the Defence Department as a tenant under a precarious tenancy governed by the Transfer of Property Act and the authorities are satisfied that requisition thereof is essentially necessary for emergent defence purposes, would it be reasonable to hold that such requisition cannot be made as the Proviso prohibits requisition of land used for defence purpose? Since the proposed requisition, far from depriving the Defence Department of the use and occupation of the land, would be securing such use and occupation much more effectively, the requisition cannot be invalidated on the specious ground that Defence Department was already using it, though under a precarious tenancy. To invalidate such requisition would be to allow the form of letters to get precedence over substance of the legal provision, the substance being non-deprivation of the Defence Department of its possession, use and occupation of the land. Requisition obviously implies the deprivation of possession of the quondam possessor and where, as here, there is no such deprivation, there is no 'requisition' within the meaning and prohibition of the Proviso.
AJoy Nath Ray, J.
6. The only question in this appeal is whether an order of requisition passed by the State Government under the West Bengal Land (Requisition and Acquisition) Act, 1948 in respect of Premises No. 18, Padmapukur Road, for the benefit of Jadavpur University, is a valid order. The order is passed underSection 3 of the Act and that is as follows (relevant is only the first part) :--
"3. Power to requisition:-- (1) If the State Government is of the opinion that it is necessary so to do for maintaining supplies and services essential to the life of the community (or for increasing employment opportunities for the people by establishing commercial estates and industrial estates in different areas) or for providing proper facilities for transport, communication, irrigation or drainage, or for the creation of better living conditions in rural or urban areas, not being an industrial or other area excluded by State Government by a notification in this behalf, by the construction or reconstruction of dwelling places in such areas, (or for purposes connected therewith or incidental thereto) the State Government may, by order in writing, requisition any land and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning.
Provided that no land used for the purpose of religious worship or used by an educational, or charitable institution shall be requisitioned under this Section."
7. The learned Judge in the Court below by his Lordship's judgment and order dated 1st September, 1988 has held that the requisition order is invalid. With the greatest of respect I am unable to agree and I think the appeal should be allowed and the requisition order should be held as valid. The result would be a dismissal of the writ application which had been filed by the first two respondents in the Court below.
8. The story of requisition is a short one. The practically admitted position is that the house and building have been used for many decades past by the Jadavpur University, first as a students' hostel and thereafter as staff quarters. The University looks upon the building as a part of the University premises now. (Paper book, page 26)
9. However, the University (being substantially the appellant), is not an owner of the building but has all along been a tenant. The tenancy is protected under the West Bengal Tenancy Laws.
10. The trouble arose after there was a sale of the property above the head of the University pursuant to an order of this High Court. The order directed the learned joint receiver of one Auddy Estate to sell the property to the highest bidder and the first two respondents ultimately succeeded in purchasing the property, outbidding Jadavpur University itself by Rs. 50,000/-, through one Shri Bimalendu Guha, President of a religious mission (paper book, page 46). The Joint Receivers informed of their sale by their letter dated 7th October, 1985 and thereafter from March, 1986 the University approached the State Government for requisitioning of the property in the interest of the University, (Paper book, pages 38, 39).
11. Sometime in May, 1986 the Registrar (appellant) of the University wrote to the Officer-in-Charge of the Bhawanipore Police Station complaining that some unknown persons representing themselves to be from the purchasers were visiting the house occasionally and the result was the residents of the house and their family were feeling insecure.
12. On the 24th of June, 1986 the Advocate on behalf of the Jadavpur University informed the Registrar that Section 144 proceedings under the Criminal Procedure Code had been filed against the first two respondents in appeal and their men, agents and associates, (Paper book, pages 58, 60).
13. On the 15th of July, 1986 the Government of West Bengal wrote to the Collector for taking immediate steps for requisition of the property and the order for requisition was passed on the 6th September, 1986. The first Land Acquisition Collector also wrote on the same date to the Vice-Chancellor of the Jadavpur University regarding formal delivery of possession as from the requisitioning government, even though in fact possession of the building all along continued to be of Jadavpur University.
14. The first point which was found favour in the Court below is that the State Government had no power to requisition the building under Section 3 of the concerned Act. The said Section gives power for requisition for maintaining supplies and services essential to the life of the community. Community life is something distinct from, and more than, the individual animal life of separate members of the community. This community life is carried on and maintained by public institutions in an essential manner. A University established for general learning like the Jadavpur University or a Court of Law for dispensation of general justice would be instances where community life manifests itself. Members from all sections of the community come here and if public institutions of this type altogether ceased, community life would itself be affected. I hold therefore that requisitioning for the purpose of a general educational institution is permissible within the meaning of Section 3 of the Act and in my opinion such an interpretation would not open any serious inroads or floodgates into rights of citizens,
15. The other factor which had weighed even more with the learned Judge was the factor of Jadavpur University losing the bid by Rs. 50,000/- and yet succeeding in getting the building requisitioned through a sympathetic Government. The Government was no doubt sympathetic as the quick compliance with the requests of the University shows. However, there was no dishonesty or bad faith about it, because the requisitioning was done openly (as it must be done) and it was merely an ancillary effect that, by reasons of the requisition order the higher bidders did not get what they wanted. However, every requisition order has some such effect of divesting people of some of their property rights. Because the successful bid of the two respondents came close in time to the order of the requisition, there could be an over-emphasis put on the loss of money suffered by the two lady respondents on account of the requisition order. But the same cannot have any special effect because of the time proximity alone.
16. In fact that Jadavpur University by trying to keep the property fully within their control by the ordinary process of bidding has shown a degree of bona fides and keenness which rather go to help their cause. In the (Companies) Rules, 1963 relating to land acquisition under the 1894 Act, such prior private negotiations are contemplated in Rule 4(1)(ii). Though the rule has no application in its terms to this case yet the principle underlying the rule is quite clear, in that private negotiations prior to requisition are rather to be encouraged than discouraged. The sub-rule 4(1) is as follows:--
"4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings:--
(1) Whenever a Company makes an application to the appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely:--
(i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition;
(ii) that the company has made all reasonable efforts to get such lands by negotiation with the person interested therein on payment of reasonable price and such efforts have failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is not excessive;
(v) that the company is in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land."
17. It was argued before us that the proviso to Section 3 of the Act prohibits requisition of any land used by an educational institution. This was not made a ground of challenge in the writ petition. From the judgement under appeal it does not appear that the same was argued before the learned Judge. Involved here is more than a mere question of pleading. Whether the land was used in an uhdisturbed way by the University so as to attract the Proviso is a question of fact as well as law. A disturbed user might not come within the meaning of the phrase--'used by an educational.... institution'. Had the point been properly brought before the Court it would be open to the Jadavpur University to show fully the degree of disturbance of its users. (That there was some disturbance is clear from the two documents of 13th May, 1986 and 24th June, 1986 referred to above.) The University never had an opportunity to do this. It would be most unfair to the University at this stage to hold that the proviso goes against them, especially because the proviso was naturally designed to protect the cause of educational institutions rather than adversely to affect the same. The University having found their possession threatened, sought the practical protective umbrella of the Government requisition and thus the rights, if any, if the University for invoking the proviso were never insisted upon by themselves from the very beginning. The argument that the proviso is in clear terms stopping requisition under all circumstances is not open to the writ petitioner in my opinion at this stage, the case having never been made before and the pleadings of the first two respondents being wholly inadequate now for a determination of this question.
18. On behalf of the first two respondents it was argued also that the State of West Bengal not being the appellant the appeal cannot be entertained at the instance of Jadavpur University or the Registrar. I am unable to agree. The party affected is Jadavpur University. The State of West Bengal is a party in appeal. In their affidavit the Government has stated that the property in question which has been requisitioned is to be followed by acquisition. Mrs. Gupta appearing for the State has supported the appellant and has endorsed the stand. (Paper book, page 73).
19. Mr. Arun Prakash Chatterjee appearing for the first two respondents relied upon the case of Ram Krishna Mission Staff Quarters ; relying upon paragraph 14 he submitted that it must be shown that staff quarters are necessary for a particular public purpose of the University as was required to be shown by the learned Judges of the Supreme Court in regard to the proposed new quarters for Ram Krishna Mission for which land had been obtained in that case. In my opinion the building here has long been used as part and parcel of the University itself and the same is not challenged in the affidavits in any way. Under these circumstances there is no material to hold that the staff quarters are for any unusual non-public use for the University. The mission has various activities as was noticed by the Supreme Court, but that has no parallel here, since we were not shown or told of any activity of the University other than that of importing general and technical education. The case therefore does not help Mr. Chatterjee.
20. Mr. Chatterjee also relied, in a less detailed way, upon three other cases, one being the Howrah Mills case reported in (1988) 1 Cal HN 367 and the two others being respectively reported in (1989) 1 Cal LJ 214 and . In my opinion these cases do not much help in deciding the issue whether the requisition for maintaining the staff quarters in the instant case was within the scope of Section 3.1 must emphasise that the requisition will be good if it relates to even part maintenance of supplies or services essential to community life; solely one requisition order will not wholly maintained any essential service for the entire community. It is enough if the order relates to maintenance of some services which are qualitatively essential to community life and without which community life would be even in part essentially affected.
21. Mr. Chatterjee's learned junior Mr. Banerjee referred to a case reported where acquisition was held to be good in spite of prior private negotiations. The case was not placed and only the reference being given I need not consider it any further. However, I do appreciate citation of case which goes against one, and it is in the best traditions of the Bar.
22. On the argument that a prroviso of a Section can raise a basic question of jurisdiction two cases were relied upon by Mr. Chatterjee, reported respectively in and . For the reasons stated above, this proposition of law, even if granted, would not further the case of the Hemani respondents.
23. It was argued by Mr. Chatterjee that there was no urgency in the requisition and therefore the requisition was mala fide. This is not a case where it can be said that there was no urgency at all. In a situation like the present, where a tenant is being threatened by the landlord, everyday cases are filed and urgent orders of injunction are obtained for restraining disturbance of possession. Here the University, being a public institution went for requisition and this in my opinion is not impermissible at all. The University is a protected tenant and there has been no disturbance of possession of anybody in fact by the requisition order. The disturbance in possession has been only notional and on paper, but it is true that the Hemanis would never be able to possess their property so long as the requisition order stands.
24. Mr. Chatterjee also relied upon the case in AIR 1971 S.C. 36 for giving an instance where the word 'shall' has been interpreted by the Supreme Court in all its force, declaring it as an absolute prohibition. The proviso to Section 3 no doubt uses the word 'shall' but the very pre-conditions were not adverted to by the writ petitioners from the very beginning and thus I do not think I should operate on abstract principles of law where appropriate facts justifying such operation are not before me.
25. Mr. Chatterjee also argued that the requisition order is vague and ambiguous. I do not think so. The Jadavpur University is an institution for higher education and this phrase occurs in the requisition order itself. Even though in other parts of the order simpler words might have been used, yet I cannot hold a requisition order to be made merely because of a bad choice of big words.
26. Mr. Chatterjee argued that the requisition order operate harshly in that it divests the respondents of property rights summarily. This is too general an argument to merit any separate treatment at all.
27. The points which I have found in favour of the appellant were argued by Mr. Shakti Nath Mukherjee (ably assisted by Mr. Samaresh Banerjee). He also added regarding the proviso to Section 3 that it is quite consistent for a mandatory proviso to be still subject to a possibility of waiver. He referred to Section 80 notice of the Civil Procedure Code in this regard. It may well be so. No decision is needed on this point.
28. Mr. Mukerjee also said that permitting the Hemanis to raise the proviso in their support would be an abuse of it. I am not straightway accepting this because it appears that if a proviso is clear in its terms then its invocation can ever be an abuse; however, I am strictly not called upon to decide this point and what I have decided elsewhere would sufficiently dispose of this cause.
29. Mr. Mukherjee also referred to several other cases on land acquisition where it has been held that power of the Government to requisition is not limited to requisitioning for use by itself alone but the Government can requisition for use by third parties too. This point has not been urged to the contrary by Mr. Chatterjee and as such I do not enter into it in detail.
30. In the result the appeal is allowed; the order under appeal is set aside; the writ petition is dismissed.
31. Since we have heard the appeal for three days I would allow costs to the appellant assessed at 200 G.Ms., subject to what my learned brother says.
32. Appeal allowed.