Calcutta High Court
Sm. Sushila Debi And Ors. vs State Of West Bengal And Ors. on 31 July, 1989
Equivalent citations: (1989)2CALLT259(HC)
JUDGMENT P.K. Mukherjee, J.
1. The present writ petition was moved before this Court on December 11, 1986 challenging the order of requisition passed by the District Magistrate, Howrah in exercise of power Under Section 3(1) of the West Bengal land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as 'Act II of 1948'). By the said order, the writ petitioners were directed to hand over possession to the Executive Engineer, Howrah Improvement Trust on December 11, 1986 at 10 a.m.
2. At the admission of the writ petition, this Court directed the respondents to maintain 'status quo' as in December 8, 1976 till December 15, 1976 and further directed the respondents not to take any further step, as stated in the said order. The said interim order was extended in presence of, Mr. A.C. Maitra and Mr. Soumitra Das Gupta, who appeared for the State, on December 15, 1986 and subsequently Shamsuddin Ahmed, J. on February 17, 1988 allowed the application filed on behalf of Calcutta Metropolitan Development Authority (hereinafter referred to as C.M.D.A. to be added as party respondent, which was moved by Mr. Aloke Chakraborty, learned Advocate and the said application was allowed by His Lordship.
3. As the original writ petition was moved with utmost expedition, the writ petitioners could not take comprehensive grounds and at the subsequent stage two supplementary affidavits, dated December 3, 1988 and April 24, 1989 (hereinafter referred to as 'First Supplementary Affidavit' and 'Second Supplementary Affidavit') were affirmed.
4. This writ petition was moved on behalf of one Sushila Debi and 12 others, who are all carrying on business at 7 Mukhram Kanoria Road, P.S. Golabari, District Howrah.
5. The facts of the present case, as in the original writ petition and the supplementary affidavits, are as follows :
The petitioners who are 13 in number moved the joint writ petition carry on business. The petitioners are all tax payers and pay Municipal Corporation Tax Under Section 102 of the Howrah Municipal Act, 1980. The petitioners recently stopped payment of tax after passing of the order of requisition and the petitioners reasonably apprehended that it would be difficult for them to carry on business and for taking recourse to this order of requisition, at the instance of Howrah Improvement Trust, the impugned order of requisition has been passed by the learned District Magistrate, Howrah.
6. According to the writ petitioners, the order of requisition has not been served upon the petitioners in accordance with the relevant rules as there is no number of L.A. Case in the said notices and all the notices are without any date whatsoever.
7. It is the further case of the petitioners that the landlord in connivance with he authorities caused the notices served with an ulterior motive and in any event it would be difficult to evict the petitioners from the premises in accordance with law. By reason of such order of requisition, the petitioners were sought to be deprived of their life and property except according to the procedure laid down by law. The petitioners also pleaded that Articles 31A and 41 contemplated that all citizens had the right of adequate means of livelihood and the State to secure the citizens.
8. Mr, Saktinath Mukherjee. learned Advocate appearing in support of the writ petitioners and challenging the order of requisition submitted that the impugned order of requisition was passed without due formation of opinion which would be evident from the fact that the purported order of requsition was in respect of Holding No. 7 Mukhram Kanoria Road Under Section 3 of Act II of 1948. Different portions of the said holding are in occupation of different persons as tenants and the petitioners are some of those tenants. Several orders of requisition were issued addressed to different persons. Some of those have been annexed to the supplementary affidavit dated December 12, 1986 and marked as Annexure 'Z'.
9. Mr. Mukherjee submits that the orders of requisition annexed to the petition do not disclose the date on which the orders were issued but possession was directed to be handed over on December 11, 1986 at 10 a.m. and as such the writ petition had to be moved under extreme urgency after having the said order of requisition. It is further submitted that the property has been acquired and at least it is only the order of requisition which continues to remain in force even today. On behalf of the writ petitioners a specific point was taken that the Act II of 1948 had an extended life upto 31.3.89 and the petitioners had challenged by a supplementary affidavit, dated 24.4.89 the continuance of the so called original orders of requisition beyond March 31, 1989.
10. In this context, Mr. Mukherjee further submits that by the order of requisition the petitioners were' directed to hand over possession to the Executive Engineer, Howrah Improvement Trust and it is admitted in paragraphs 14 and 17 of the affidavit-in-opposition on behalf of the C.M.D.A. that the requisition orders have been made at the instance of the answering respondents which was prejudicial to them.
11. In this connection, Mr. Mukherjee has referred to Hooghly River Bridge Commissioner Act, 1969 which deals with the powers of the said Commissioner and Section 24 of the said Act which originally provided for acquisition under the Land Acquisition Act, 1894 has been subsequently amended by Amendment Act being Act XX of 1974 so as to permit requisition and acquisition under Act II of 1948.
12. It is the case of the C.M.D.A. which is governed by the State Government in accordance with any lay for the time" being in force but does not permit requisition as it has been done in the case of Hooghly River Bridge Commissioners by the 1974 Amendment Act. The CMDA Act has been amended from time to time and one such amendment is Act XXIV of 1977 but the said Amendment Act of 1977 left Section 18 of the CMDA Act, 1972 untouched.
13. The CMDA Act of 1972 indicates that CMDA was established an authority for the formulation and execution of plans. It will appear from the CMDA Act of 1972 that it is entrusted with the long term development of Calcutta Metropolitan Area. Section 15(1)(a) of the said Act provides that in the matters of formulation or execution of any plan it is required to act with the approval of the State Government. An analysis of Sections 15, 16 and 17 of the said Act of 1972 indicates that CMDA is not entrusted with the task of dealing with an emergency. Proviso to Section 17(4) requires that even for the purpose of inspection, measurement, etc., the CMDA can enter upon the lands of others upon proper notice.
14. Act II of 1948 deals with the power of requisition and speedy acquisition. The Supreme Court in Subodh Gopal's case observed as follows:
"I see no sufficient reason to construe the words 'acquired or taken possession' used in Clause (2) of Article 31 in a narrow technical sense. The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters, particularly those relating to fundamental rights, and it cannot be assumed that the ordinary work 'acquisition' was used in the Constitution in. the same narrow sense in which it may have been used in pre-Constitution legislation relating to acquisition of land. These enactments, it should be noted, related to 'land', whereas Article 31(2) refers to movable property as well, as to which no formal transfer or vesting of title is necessary.
Nor is there any warrant for the assumption that 'taking possession of property' was intended to mean the same thing as 'requisitioning property' referred to in the Entries of the Seventh Schedule. If that was the intention why was the work 'requisitioning' not used in Clause (2) as well? It is fallacious to suggest that unless 'taking possession' is synonymous with 'requisitioning' the power to make a law authorising the taking of possession of property would be lacking because no Entry in any of the Lists of the Seventh Schedule confers that power.
A specific Entry in the legislative Lists is no more necessary for conferring such power than for conferring power to make a law authorising 'deprivation' of property which Clause (1) of Article 31 postulates. The word 'acquition' is not a term of art and it ordinarily means coming into possession of obtaining, gaining or getting as one's own. It is in this general sense that the word has been used in Articles 9, 11, and 19(1)(f) and not as implying any transfer or vesting of 'title'.
In-'Minister of State for the Army v. Dalziel, 62 CLR 261(1), a Full Bench of the High Court of Australia had to construe the scope of the legislative power with respect to 'acquisition' of property conferred on the Commonwealth Parliament by Section 51 (xxxi) of the Australian Constitution (63 & 64 Vic. Ch. 12) and the Court decided by a majority that he power included the power to take possession of property for a temporary purpose for an indefinite period. To say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislature and executive organs to appropriate the property of a sub-jest without his consent.
When the State chooses to exercise such power, if 'creates' title in itself rather than 'acquire' it from the owner, the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition. No formula of vesting is necessary. As already stated, in the case of movable property no formal transfer or vesting of title apart from seizing it could have been contemplated. And, what is more, Clause (5)(b)(ii) of Article 31, which excepts any law made in future 'for the prevention of danger to life or property from the operation of Clause (2) shows that the latter Clause, but for such exception, would entail liability to pay compensation for deprivation by destruction, which must therefore be taken to fall within the scope of Clause (2), for a law made for the prevention of danger to life or property may often have to provide for destruction of the property appropriated.
I am of opinion that the word 'acquisition' and its grammatical variations should, in the context of Article 31 and the Entries in the lists, referred to above, be understood in their ordinary sense and the additional words 'taking possession of or 'requisitioning' are used in Article 31(2) and in the Entries respectively, not in contradistinction with, but in application of the term 'acquisition' so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired. They would, for instance, include destruction which implies the reducing into possession of the thing sought to be destroyed as a necessary step to that end.
The expression 'taking possession' can only mean taking such possession: as the property is susceptible of and not actual physical possession, as 'the interest in, or in any company owning, any commercial or industrial undertaking' which is expressly included in Clause (2) of Article 31, is not susceptible of any actual physical occupancy or seizure.
It is, however, unnecessary here to express any concluded opinion on the precise scope and meaning of the expression 'shall be taken possession of or acquired' in Clause (2) except to say that it does not admit of being construed in the same wide sense as the word 'taken' used in the Fifth Amendment of the American Constitution, but implies such an appropriation of the property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner. Any other interference with enjoyment of private property short of such appropriation or abridgement would not not be compensable under Article 31(2)."
15. Mr. Mukherjee then submits that the Law Commission in its report on Land Acquisition (1958) after referring to several State Acts including West Bengal Act II of 1948 in Appendix V has remarked-"We are of the view that the power of requisitioning property of a private owner can be invoked only when an emergency arises". Paragraph 18 at page 7 of the said Report runs as follows :
"We are of the view that the power of requisitioning property of a private owner is an extraordinary power and can justifiably be invoked only when an emergency arise. That is perhaps the reason why most of the Requisitioning Acts are temporary. Though we have included the provisions relating to requisitioning of property in Part III of our legislative-proposals, we do not suggest that the provisions in Part III should be in force permanently or throughout the country. We have provided that these provisions will be operative only on the issue of a notification by the appropriate Government and further that the provision may be made applicable to the whole or part of a State as the circumstances may require. It is relevant, in this connection, to point out that in other countries also, the power of requisitioning property is very sparingly used and that too, only in cases of emergency."
16. The requisition under Act II of 1948 is a step-in-aid of speedy acquisition as Act II itself professes to provide for requisition without notice and only for specified purposes to meet a speedy acquisition must necessarily be meant an emergent situation. It is to be noticed that Act II of 1948 does not permit mere acquisition without prior requisition. Section 4 of Act II of 1948 permits acquisition of requisitioned lands only.
17. In an ordinary situation the State can proceed to acquire the lands in the ordinary way under the Land Acquisition Act, 1894. If there is a choice between two Acts and the State Government chooses the Act II of 1948 in a non urgent situation that would be an abuse of the statutory power.
18. Similarly, Act I of 1894 has now been amended by the 1984 Amendment Act so as to permit taking of possession under the provision of amended Section 17 of the 1894 Act in case of emergency. The provisions of Section 17 cannot be invoked in a non-urgent situation.
19. As such, in the present circumstances of the case, Mr. Mukherjee submits, in a non-urgent situation recourse to Act II of 1948 was wholly unjust and liable to be struck down.
20. Mr. Mukherjee further submits that CMDA has undertaken a long term project. In spite of challenge, the CMDA has not produced any material to satisfy this Court that there was any urgency so as to justify the requisitioning of property in question within few hours of the date of service of the said order.
21. It is now well-settled that if there are two powers available to an authority the choice of one rather than the other is to be justified where the consequences are different and where others will be differently affected. If requisitioning without a hearing is permissible in urgent circumstances, the exercise of such power in non-urgent cases would be an abuse of the statutory power (as referred to in Jiwani Kumar Paraki v. First Land Acquisition Collector).
22. The purpose being permanent and a long-term one, Act I of 1894 rather than Act II of 1948 should have been invoked. It appears that the disputed lands are being sought to be requisitioned for a "permanent purpose". Therefore, the power of requisition under Act II of 1948, which is a temporary Act, cannot be exercised or utilised knowing fully well that the disputed property would be "permanently required" by the authorities in view of the decision in the case of H.D. Vora v. State of Maharashtra .
23. Further, Act II of 1948 can be utilised only for specified purposes and, inter alia, it permits requisition for increasing employment opportunities for the people by establishing commercial estates and industrial estates. Nothing has been produced to satisfy the Court that there will be an increase in the employment opportunities. It requires considerations that when the properties are being used for business purposes providing employment and means of livelihood to a large number of people the respondent-authorities are attempting to throw such persons out of employment. Again, the Act permits requisition for a commercial estate but the order of requisition was issued for commercial 'complex' after striking out the word 'estate' that the proposed complex will be different from the estate. In such view of the matter, order of requisition could not be issued.
24. Mr. Mukherjee has further submitted that the petitioners are all running their respective businesses and they are going to be deprived of their livelihood. Had they been given an opportunity of hearing, they could have satisfied the authorities that vacant lands were available in the immediate neighborhood which could be profitably utilised without affecting the petitioners who were going to be deprived of their livelihood by the order of requisition.
25. Mr. Aloke Chakraborty, learned Advocate appearing on behalf of the C.M.D.A. has submitted that there is no substance in the point taken under the points of challenge. The copies of the said orders supplied to the petitioners even if do not contain the date, the same is not a serious irregularity and it has been held in the case of Rash Behari Jana v. A.D.M. and Ors. reported in 1979 (1) C.L.J. 543 that substantial compliance of requisite is required and when original notice is proper, any defect in the copies will not make the notice bad. The petitioners have not made out any case that they have suffered any prejudice for the alleged irregularity in the notices. Admittedly, the petitioners were served with the orders before handing over of possession and, as such, there could not be any prejudice to the petitioners even if no date was given in the copies of the orders. Further, there cannot be any question of non-application of mind so far as the copies of the orders are concerned. It is stated that the said Act II of 1948 has been extended for a period of 5 years till March 3, 1994 by the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1989 published in the Calcutta Gazette dated March 31, 1989.
26. Mr. Chakraborty dealing with the point that the present acquisition was not Under Section 18 of the C.M.D.A. Act, 1972 has submitted that C.M.D.A. has its functions and power prescribed Under Sections 15, 16 and 17 of the said Act and for any of the projects of C.M.D.A. lands can be acquired under Act II of 1948 by the appropriate authority under the said Act and in the present case the same has been done in accordance with law.
27. According to Mr. Chakraborty, the development project coming within Section 15 of the C.M.D.A. Act can also be of such nature which involves urgency particularly urgency of the nature as stated in the affidavit-in-opposition of the C.M.D.A. The said provisions of law do not provide anything which prevents the C.M.D.A. from proceeding urgently with any development project for the people. It is a positive case of the C.M.D.A. that there was urgency in the facts and circumstances of the case requiring requisition of the property of the petitioners on emergency basis and detailed reasons have been disclosed in the affidavit of C.M.D.A. In that view of the matter, the submissions of the petitioners on the question of acquisition and requisition both under Act I of 1894 and Act II of 1948 are misconceived.
28. It has been clearly held in the case of Mihir Kumar Sarkar -v.- State of West Bengal reported in 75 C.W.N. 831 that if different powers are provided by different statutes, it is open to the authority to take recourse to or even change from one to the other, so long it is not fraud on the Statute or made with collateral or mala fide motives. The present project had the urgency in the facts and circumstances of the case as stated in the Affidavit filed by the C.M.D.A.
29. In dealing with the applicability of the decision in the case of Jiwani Kumar Paraki (supra) it has been submitted by Mr. Chakraborty that in the said case requisition for a shop room was upheld at the time of requisition. The said case along with various other cases cited during oral submissions clearly shows that urgency can be of various natures requiring requisition instead of acquisition. Even in the said case appropriate directions were given after holding that continuation of requisition for a long period is not proper. Thus even if it is held at any point of time that continuation of requisition is not proper, appropriate directions can be issued by the appropriate Court in the line it was' given in the said case reported in H. D. Vora's case in .
30. Mr. Chakraborty has further submitted that the case was an earlier decision by two Judges' Bench whereas the case is a subsequent decision by a larger Bench and upon considering the said earlier case and, as such, the law laid down by the said subsequent case is binding. It was the objection that the land, was requisitioned for industrial complex instead of estate. The word 'complex1 means "composed of more than one or of many parts". In the instant case, as it appears from the record, the said project has several parts and the word 'complex' has been used meaning thereby that an estate has several parts. It is not possible to have a commercial complex without there being an estate.
31. In reply to the submissions made on behalf of the petitioners to the effect that the impugned notices of requisition under Act II of 1948 are bad as there was no urgency justifying invoking provisions of the said law, in support of the case on behalf of the petitioners reliance was placed on Law Commissioner's report of the relevant year which speaks of urgency in application of Act II of 1948. The observations in the Law Commission's Report of 1958 in paragraphs 17 and 18 at page 7 and Item 17 of Appendix-II thereof were relied upon. Reliance was placed on the case of Howrah Mill reported in 1988 (1) Calcutta Law Journal 455.
32. In reply to the above submissions, Mr. Chakraborty has submitted that urgency for which Act II of 1948 can be applied cannot be defined and various circumstances can constitute sufficient urgency of invoking the said Act II of 1948. Various cases have considered and approved the nature of urgency. One of the instances, as it appears from the case of Jiwani Kumar Paraki is that requisition for the show room in a commercial locality of Calcutta was approved by the Hon'ble Supreme Court. The Law Commission's Report has not explained the nature of urgency and|or emergency. But various cases have conclusively shown that the consideration of existence of urgency is to be left to the Government.
33. In fact, in the case of Dr. Nilkamal Bez Barau , the Division Bench in paragraph 14 thereof observed as follows :
"On the other hand Section 3(1) of the Act does not lay down as such conditions precedent to the exercise of the power of requisition. Even if it be assumed that requisition implies immediacy or urgency, in the absence of any specific provision in Section 3(1) restricting the power of requisition only in case of urgency or immediacy, the question relating to the same is not at all justiciable."
34. The urgency initially was not disputed by the petitioners either in the writ petition or in the first supplementary Affidavit. The second supplementary Affidavit was affirmed long after the first supplementary Affidavit end a copy thereof was served upon the respondents even after the completion of the submissions of the petitioners.
35. In reply, the point specifically taken in the writ petition is that no requisition is permissible for members of a Society or individual and reliance was placed on the case of Sandhya Mukhati reported in 1977 (2) C.L.J. 375 followed in the case of Sree Sree Gopal Jew Thakur reported in 1988 (1) C.H.N. 420, The case of Howrah Mills reported in 1988(1) C.LJ, 455 was also relied on.
36. In reply to the above, it is stated that the impugned notices show that the requirement is for the people. Neither in the writ petition nor in the three subsequent supplementary affidavits any material has been included alleging that the requirement was of a Society or of an individual. So, this submission is not tenable.
37. For arriving at a proper decision as to whether the order of requisition passed under the West Bengal Land (Requisition and Acquisition) Act, 1948 is valid or not, in view of the pleadings adduced by the parties in the instant case, this Court has to determine the following issues :
1. Whether the order of requisition passed under West Bengal Land (Requisition and Acquisition) Act, 1948 has been served upon owners and occupiers of the premises in terms of the Rules framed under West Bengal Land (Requisition and Acquisition) Rules, 1948?
2. Whether the State Government is requisitioning the land along with the existing structures for permanent acquisition and, as such, the power under Act II of 1948 could at all be invoked?
3. If the order of requisition is permissible without hearing in urgent circumstances, the exercise of such power in non-urgent cases will be an abuse of statutory power in view of the decision in Jiwani Kumar Paraki's
4. Whether land with structure can be requisitioned by taking recourse to the provisions of Act II of 1948 for CM.D.A. as it has been done in the instant case?
38. Let us now deal with those points hereinbelow :
From the order of requisition itself and the averments made in the writ petition and the affidavit, it has been admitted by the respondents that undoubtedly the order of requisition has not been served upon the occupiers, who are some of the petitioners in the instant petition, in accordance with the Rules framed under Act II of 1948. As such, in my opinion, no further steps relating to requisition can be taken by the respondents on the basis of non-service of the order.
39. Further, in my view, after going through the pleadings of the parties in the instant case, the State Government is proceeding to requisition the land for "permanent acquisition" for establishment of a "commercial complex" and not "commercial estate" as per statutory requirements and, as such, in view of the decision of the Supreme Court in the case of Jiwani Kumar Paraki (supra), the respondents are not competent to do so.
40. Undoubtedly, if power can be exercised in extremely urgent cases, the use of such power in non-urgent cases like the present one is undoubtedly an abuse of power and this Court is entitled to interfere with such exercise of power in view of the decision in the case of Jiwani Kumar Paraki (supra).
41. Although it has been submitted by Mr. Chakraborty appearing for C.M.D.A., in terms of the provisions of Sections 15 and 16 of the C.M.D.A. Act 1972, certain provisions have been made for proper functioning of the C.M.D.A. and, as such, initiation of the project by C.M.D.A. is within the statutory power and function. Since the order of requisition was passed under Act-II of 1948 by the Land Acquisition Collector, the question of existence of power under the C.M.D.A. Act 1972 is not at all a relevant consideration. In my opinion, on that ground also, the order of requisition is liable to be set aside.
42. Further, in my view, on the point of applicability of the provisions of Act II of 1948, reliance may be placed in the case of Howrah Mill v. State of West Bengal reported in 1988 (1) C.L.J. 455 wherein Bhagabati Prasad Banerjee, J. in paragraph 8 observed as follows :
"The Land Acquisition Act 1894 laid down elaborate procedure for acquisition of land for a company and it is permissible to acquire property for a private company for a public purpose where the word 'public-purpose' was not denned. When the provisions of the Land Acqui-siton Act laid down the conditions and/or the restrictions under which a land could be acquired for a company, in my view, the property could not be requisitioned for a company by passing the provisions laid down in the Land Acquisition Act. One of the important conditions for acquisition of land for a company under the Land Acquisition Act 1894 is provided in Rule 4 of the Land Acquisition (Companies) Rules 1963, which provides that whenever a company makes an application to the Government for acquisition of any land, the Government must be satisfied on the basis of a report from the Collector that the company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition and that the company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. In my view, when the Land Acquisition Act and/or the rules framed thereunder had laid down elaborate and in-built procedure, the same cannot be by-passed and that this also throws light that the legislature never intended to requisition any land under the Requisition Act for which special procedure was laid down under the Land Acquisition Act. Accordingly, I hold that the impugned requisition for a private company under the West Bengal Land (Acquisition and Requisition) Act 1948 is void and illegal."
43. In the case of Sree Sree Gopal Jew Thakur v. State of West Bengal, reported in 1988 (1) C.H.N. 420, I have followed another Single Bench decision of this Court reported in 1977 (2) C.L.J. 375 (Sandhya Mukhati v. Additional District Magistrate, 24 Parganas) where in paragraph 5 of the said judgment M. M. Dutt, J. (as His Lordship then was), inter alia, observed that the purposes, which were mentioned in Section 3(1) of the Act, are undoubtedly public purposes. The Act also did not make any provision for requisition or acquisition of land for the benefit of any individual, society or company, like the Land Acquisition Act 1894, in the absence of any specific provisions in that regard, the requisition of land for the purpose of an individual, society or company would not be a "public purpose" for the community. If the disputed land was requisitioned, the same would be distributed amongst the members of the respondent Samity (society) and not to other displaced roadside shop keepers, who were not its members.
44. I respectfully agree with the views taken above by the learned Judges of this Court.
45. In view of the decisions, in my opinion, the State Government is not permitted to take recourse to the provisions of Act II of 1948 for requisitioning land for C.M.D.A. as the Land Acquisition Act, 1894 lays down a special procedure for acquisition of land for C.M.D.A.
46. Accordingly, the writ petition is entitled to succeed on the ground that the respondents are not permitted to requisition the land for a third party viz. C.M.D.A., in view of the decisions referred to hereinabove.
47. Thus the writ petition succeeds.
48. The order of requisition is liable to be quashed by issuance of a Writ in the nature of Certiorari but this will not prevent the respondents from proceeding with the matter in accordance with law.
49. There will be no order as to costs.