Calcutta High Court
Ratan Chand Burman And Another vs The Chairman, Calcutta Improvement ... on 3 August, 1990
Equivalent citations: AIR1991CAL282, AIR 1991 CALCUTTA 282, (1991) 1 CALLJ 370 (1992) 6 LACC 75, (1992) 6 LACC 75
ORDER Ajit K. Sengupta, J.
1. This is an appeal from a judgment and order dated 26th September 1980 as well as an order dated 27th March 1981 of a learned single Judge of this Court on a writ petition filed by the appellants challenging the validity of notices dated 29th April 1962 issued under Section 45 of the Calcutta Improvement Act, 1911 (hereinafter referred to as "the 1911 Act") proposing to acquire land specified in such notices for the purpose of carrying out a Street Scheme being Street Scheme No. LXXXIX (Bentinck Street, Lower Chitpur Road) in the City of Calcutta. By the judgment and order dated 26th September 1980 the learned single Judge after recording certain findings directed that all acquisition proceedings in respect of the Street Scheme must be completed at least within a period of one year from the date of the judgment. He further directed that on the failure of the concerned authorities to complete such acquisition proceedings, the acquisition proceedings in so far as they related to the appellants' properties should stand quashed. This judgment is the principal judgment. Subsequently the matter was mentioned before the learned Judge on 27th March 1981 whereupon certain consequential directions were given for the purpose of carrying out the order dated 26th September 1980. As such it is the validity of the judgment and order dated 26th September 1980 which really requires consideration in this appeal.
2. Before we look at the facts, it is necessary to refer to certain statutory provisions which are relevant for deciding this appeal. Section 69 of 1911 Act empowers Calcutta Improvement Trust (hereinafter referred to as CIT) to acquire land under the provisions of the Land Acquisition Act 1894 for carrying out any of the purposes of the 1911 Act. The Land Acquisition Act under went substantial amendments in 1984. The amendment which is important in the present context is the introduction of Section 11A in the Land Acquisition Act 1984 which is in the following terms :--
"11A. Period within which an award shall be made, The Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no Award is made within that period, the entire proceedings for the acquisition of the land shall lapse;
provided that in a case where the said declaration has been published before the Commencement of the Land Acquisition (Amendment) Act, 1984 the awards shall be made within a period of two years from such commencement."
3. Now briefly the facts, The appellants are the Trustees of a Public Charitable Trust called "D. P. Mucker Charitable Trust" (here-inafter referred to as "the Trust"). The Trust is the owner of 9 premises being premises Nos. 77, 77/1, 77/1/1, 77/1/2, 77/1/3, 77/2, 78, 78/1 and 78/2, Bentinck Street, Calcutta (collectively referred to as "the premises").
4. On 29th November 1962 Calcutta Improvement Trust (hereinafter referred to as "CIT") through its Chairman caused notices to be served on the Trust under Section 45 of 1911 Act proposing to acquire the land comprised in the premises. These are the notices which have been challenged in the writ petition and we shall refer to them as "the impugned notices".
5. The Trust by its Advocate's letter dated 23rd February, 1963 made a representation to CIT applying for exempting the premises from acquisition under Section 78 of the 1911 Act and also requesting that the representation may be treated as its formal objection to the impugned notices. There was no response from CIT to the said representation.
6. The appellants have stated that subsequently searches were made regarding the particulars of the Street Scheme No. LXXXIX and they came to know that for implementing the same only a small portion of the premises was required, namely a strip of about 50 feet wide land on the road-side of the premises.
7. It appears from the records that CIT did not take any steps towards implementation of the Scheme. The Trust wrote 3 letters to the Chaiman of CIT dated 11th April 1974, 27th May 1974 and 16th October, 1974. In these letters the Trust pointed out that since no steps were being taken for execution of the street Scheme the properties concerned were lying frozen, the Trust was being prevented from developing the same and that a quick decision should be taken either for execution of the Scheme or for abandonment of the same. CIT by its letter dated 21st November 1974 replied to the letter of the Trust dated 16th October 1974 only to say that the Scheme was under scrutiny of C.M.D.A. for administrative approval and financial sanction and on receipt of such approval and sanction the execution of the Scheme would be resumed and the concerned properties would be acquired in due course.
8. Nothing of consequence happened in 1975 and 1976. The Trust by its letter dated 3rd March 1977 again drew the attention of CIT to the delay in execution of the scheme and the consequential loss and prejudice which was being suffered by the Trust. Significantly, CIT by its letter dated 25th April 1977 replied by repeating that the Scheme had been sent to CMDA for administrative approval and financial sanction and that on receipt of such approval and sanction land acquisition proceedings would be resumed.
9. Another year passed. The Trust by its Solicitor's letter dated 6th April 1978 again drew the attention of the CIT to the delay and the consequential prejudice which was being suffered by it and gave notice that unless a final decision was taken in the matter proceedings would be initiated under Article 226 of the Constitution of India for appropriate reliefs. There was no reply to this letter. By a further letter dated 25th April 1978, the Solicitors acting for the Trust pointed out that enquiries made with CM DA, revealed that there was no such scheme which was being considered by CMDA and as such the question of administrative approval and financial sanction of CMDA, did not arise. By this letter CIT was notified that unless a categorical statement as regards the matter in question was received within 7 days legal proceedings would have to be initiated. There was another reminder by the Trust by its Solicitor's letter dated 6th June, 1978. CIT ultimately broke its silence by its letter dated 20th June, 1978. This letter was written by the Deputy Chief Valuer II of CIT and the material portion thereof is quoted below:--
".....I have to inform you that the above premises are scheduled for acquisition in sanctioned Scheme No. LXXXIX. The said scheme is still valid and it is expected that the execution of the scheme may be taken in hand within the next five years."
10. The writ petition was moved on 7th August, 1978 challennging the validity of the -acquisition proceedings initiated by the concerned notices on various grounds, namely delay, colourable exercise of powers, mala-fide etc. A Rule Nisi was issued.
11. An affidavit in opposition was filed on behalf of CIT and the other respondents being the affidavit of Jagabandhu Pramanick affirmed on 16th December 1979. In this affidavit there was no satisfactory explanation in relation to the delay, nor were there any materials disclosed as to how and when the concerned Street Scheme would be implemented. It also did not say anything about the application made by the Trust for exemption under Section 78 of the 1911 Act or the objection to the impugned notices, apart from saying that the said application would be duly considered by CIT and the decision taken would be communicated. The learned Judge has also recorded in his judgment that the explanation given in the Affidavit-in-opposition was not satisfactory and as such he directed CIT to file a fresh affidavit.
12. Pursuant to such direction a Supplementary Affidavit being the Affidavit-in-op-position of Jagabandhu Pramanick affirmed on 21st July 1980 was filed on behalf of CIT. It is not necessary to examine this affidavit in detail inasmuch as the learned Judge has, with respect, very carefully scrutinised and analysed the same and we agree with this analysis. We quote this analysis:--
"Obviously, there has been some delay in the matter of acquisition. Inasmuch as the explanation given in their affidavit was not satisfactory. I directed the Trustees to file a fresh affidavit. Some vague allegations were made in their original affidavit regarding some pending cases and some injunction order passed. It appears that now an affidavit has been affirmed on behalf of the trustees by one Jagabandhu Pramanick on the 21st July, 1980. From the said affidavit it appears inter alia as follows:--
The said Scheme No. LXXXIX is a street scheme and was sanctioned by the State Government on or about 25th November, 1964. On or about 13th January, 1965 the Calcutta Improvement Trust by letter requested the Land Acquisition Collector to start the land acquisition proceeding in connection with and for the purpose of execution of the said scheme. At all material times notices under Section 9 and 10 of the land Acquisition Act, 1894 were duly served on the various owners and/or occupiers of the properties affected by the said Scheme. The said Land Acquisition proceedings were stayed by an order of injunction granted by this Court in or about 1965 in Matter No. 382 of 1965. On or about December, 1968 the said rule was discharged and the interim order was vacated. That is the reason given for non-implementation of the scheme till December, 1968. It is further alleged subsequently in or about 1969 on the petition of some tenants affected by the said scheme an order of injunction was passed by this Court in Matter No. 764 of 1968. Although the said matter was disposed of in or about March 1971 and the said order of injunction was also vacated, it is stated that because of the interim order was continuing till "March 1972" the Calcutta Improvement Trust could not take any step till March 1971. (Obviously this inconsistency in the date is wrong. It would be March 1971). It is further stated that on the 27th February 1981 the Board of Trustees of the Calcutta Improvement Trust by a resolution decided to execute the said Scheme. As the Trustees had no sufficient fund they applied before the Calcutta Metropolitan Development Authority. The said application was made the scheme until 1976 when the trustees were informed that the said scheme was not approved by the said authority (sic). This is the explanation for the period 1971-76. It is alleged that in or 1979-80 the said Scheme was finally included in the Stte Government's Annual Budget for the purpose of execution. It is alleged that since 1979-80 the said scheme has been appearing in the State Plan Budget for the expeditious implementation of the said scheme and that the State Government has decided to render financial assistance to the Calcutta Improvement Trust for the purpose of expeditious implementation of the said scheme. It is further alleged that in or about 3rd July, 1980 pursuant to the application made by the Calcutta Improvement Trust the Minister-in-charge of Public Works Department of the State Government has approved of the acquisition of property under the said scheme under the Land Acquisition Act, 1894 in relaxation of the Urban Land Ceiling & Regulation Act, 1976. It is stated that the said scheme is for public purpose, namely, for the purpose of widening up of the stretch of the Road from Bentinck Street which is an important Commercial area in the town of Calcutta."
13. From this analysis at least two undisputed factual features emerge:
First, there was no prohibitory order of injunction in relation to the acquisition proceedings after March 1971; secondly, declaration under Section 6 of the Land Acquisition Act, 1894 had been made much prior to 1971.
14. After this analysis the learned Judge has observed as follows :--
"In my opinin admittedly the scheme concerned is a scheme for public purpose. However, when a property of the citizen is concerned it not open to the authorities concerned to dely in the matter. The fact that the right to acquire and hold immovable property and the property rights are no longer fundamental rights does not alter the position that the authority concerned must act reasonably and sensibly in the matter. In this case as long as back in 1962 a notice was given under Section 45 of the said Act. The matter has been delayed unnecessarily for more than 18 years, it is clear that without any provision for any fund the scheme was approved and notices were given. Subsequently the application for financial assistance was made before the Calcutta Metropolitan Development Authority. This matter remained with the C.M.D.A. for about 5 years. This is absolutely scandalous to say the least. The trustees should not have allowed the matter to linger for such a time. It would have taken proper stay to expedite this matter. Not merely that no reason has been put forward as to why 5 years have been taken for the authority to signify their refusal to grant any financial assistance. The trustees were also not entitled to wait for any indefinite time for the favour of the concerned. Now it has been stated that it has got the approval of the State Government. In my opinion, it is neither fair nor proper on the part of the authorities concerned to make such delay in the matter of acquisition of land of the citizen. Because of such notice it is not possible for the petitioner to take appropriate steps for the preservation of the property or for disposing of the said property. As long as the sword of acquisition is hanging over them, no action can be taken by owners in connection with the said property. They are not in a position to dispose of the said property also. This is a case of the charitable trust and they are suffering because of this delay in activities of the authorities concerned. Be that as it may, as it appears that the Government have now decided that the scheme must be proceeded with and I do not intend at this stage to direct that the said notice be quashed.
If any notice is given for requisition or acquisition of any property of any citizen reasonable steps should be taken to expedite the same. Unnecessary delay in the matter cannot be condoned. Having regard to the aforesaid I dispose of this application by making the following order:
All acquisition proceedings in respect of the said Street Scheme must be completed at least so far as the petitioner is concerned within a period of one year from this date. On the failure of the respondents to complete such acquisition proceedings, so far as the petitioner's property is concerned, this Street scheme so far it relates to the premises of the petitioners, shall stand quashed. I also make it clear that these proceedings for acquisition of the property of the petitioner shall be proceeded with only for the purpose of implementation of the Street Scheme and not for anything else. No one is appearing on behalf of any of the respondents. I accordingly direct that a copy of this judgment and order be served on the respondent-trustees, The State and the First Land Acquisition Collector by the 30th of November 1980."
15. This appeal was preferred on 27th April, 1981. During the pendency of the appeal certain developments took place which were placed on record by a Supplementary Affidavit filed with leave of this Court on behalf of the Trust being the affidavit of Madan Mohan Khandari affirmed on 6th October 1988. To this affidavit the proceedings of the 2633rd meeting of the Board of Trustees of CIT held on 25th November 1986 has been annexed. It appears from this Annexure that a Note regarding the position of various Schemes of the Calcutta Improvement Trust in view of the amendment of Land Acquisition Act was placed before the Board for necessary information and approval and by Resolution No. 20 adopted at the said meeting the Board approved the same. The Note is Appendix 'D' to the record of the proceedings of the meeting dated 25th November 1986 and forms part of the Annexure. It would be useful to extract the following portions from the said Note:--
"In order to continue and complete the unfinished work fresh publication of Schemes are necessary. A decision has to be taken which schemes would now be taken up immediately for re-publication keeping in mind time period of three years stipulated in the amended provisions of the L.A. Act within which the Land Acquisition Collector will have to complete these awards before this fresh publication again gets lapsed, based on the past experience in respect of the capacity of the Land Acquisition Officer who will be making the awards and requisite funds that has to be placed at the disposal of the Land Acquisition Collector before signing the awards the Trust will have to make the programme of publications accordingly. Thus, the pending schemes may be broadly classified into three categories, i.e. (i) unfinished schemes to be completed, (ii) remunerative schemes & (iii) non-remunerative schemes.
Regarding the serial No. 1 the trust may like to take up for immediate publication with necessary modification with the balance properties of the following schemes:--
1. Scheme No. Kasba - III 2. Scheme No. 118 3. Scheme No. 143
4. Scheme No. 114-
5. Scheme No. 101.
The approximate land acquisition cost for completing the balance acquisition in the above 5 schemes would be Rs.2,00,000/-. This is based on the land acquisition cost at the old rate. Rate is likely to go up in case of fresh publication.
In case of those plots which will be urgently required for completing engineering works we may move the M.D. Deptt. for acquiring the same under Act II and the rest may be acquired under normal procedure of Calcutta Improvement Trust Act of publishing revised schemes.
The four remunerative schemes coming under the category of Sarial No. II which were not taken up in our top priority lists are Scheme No. 119 and Scheme K-il, Scheme Nos. 148 and 146. Scheme No. 119 is the major scheme and will connect with Scheme No. 118 and Scheme 118 and Scheme 130 to form a corridor from Tollygunge Metro Station to Jadavpur University. The total estimate of the scheme was Rs. 201.3 lacs which included Rs. 72.00 lakhs for land acquisition and Rs. 129.3 lacs for engineering works. A revised cost estimate of the scheme will be placed before the Board for taking a decision regarding its adoption.
It may be noted that scheme No. 148 was published under Section 43 of the CIT Act has also lapsed. The Board has already decided that this scheme be republished for execution. The total cost of the scheme is Rs. 235.49 lakhs. In addition scheme 146 which is awaiting Govt. sanction is also to be taken up for execution. The cost of this scheme is Rs. 90.72 lakhs.
Regarding Serial No. III, the Schemes which are non-remunerative in nature but have lapsed according to provision of amended Land Acquisition Act are as follows :--
1. Scheme No. LXXII
2. " No. LXXV
3. " No.:LXXXVIII
4. " No. LXXXIX 5. " No. 107 6. " No. 115 7. " No. 125 8. " No. 126 9. " No. 133 10. " No. 145
11. " No. 143 (Suppl) 12. " No. 151
13. Scheme No. XVII-M
14. " No. XVIII-M 15. " No. 142 Since in the 7th five year plan we have a provision of only Rs. 50.00 lakhs under the grant aid which will be required for executing scheme No. 101 it is not possible to execute any of the above non-remunerative schemes from plan fund. The current financial position of CIT will also not permit execution of such major non-remunerative scheme unless fund is available from external sources, like CMDA Grant.
Hence it is suggested that CIT should at least prescribe new alignments or modify the existing alignment in respect of 6 very important schemes, viz., scheme LXXV, LXXXVIII and LXXXIX and extension of Manicktla, Narkeldanga, Beliaghata Main Road up to Salt Lake. CMDA may be moved to include these important scheme in CUDP IV".
16. Sri Samaraditya Pal, learned Counsel, appearing on behalf of the appellants firstly submitted tht the learned Judge having found that there was inordinate and unexplained delay and that the conduct of CIT could not be condoned and should have quashed the acquisition proceedings.
17. He next contended that in any event the appellate court should on the basis of the findings of the learned Judge or on its independent findings should quash the acquisition proceedings. In this connection reliance was placed on the Full Bench decision of the Punjab and Haryana High Court in the case of Radheshyam Gupta v. State of Haryana and also on the observations of the Supreme Court in Depak Pahwa v. Lt. Governor of Delhi, .
18. His further contention is that as admitted in the Note which is Appendix D to the Minutes of proceedings of 2633rd meeting of the Board of CIT dated 25th November, 1986 and in any event, the proceedings have lapsed according to the provisions of amended Land Acquisition Act.
19. He has also contended that in any view of the matter the acquisition proceedings must be declared to have become infructuous of non-est in view of the decision taken at the 2633rd meeting of the Board of CIT held on 25th November, 1986.
20. On the other hand learned counsel appearing on behalf of the respondents submitted that there was nothing to add or comment on the factual aspect apart from what has been stated, in the affidavits filed on behalf of the respondents.
21. He contends that the acquisition proceedings do not stand abandoned by reason only of the nature of the decision taken at the meeting of the Board of CIT dated 25th November 1986.
22. According to the learned counsel, the authorities cited on behalf of the appellants have no application to the facts of this case.
23. We are however, unable to accept any of these contentions of the respondents.
24. We will first take up the last submission made on behalf of the appellants. The relevant decision of the Board of CIT taken at the meeting held on 25th November 1986 is clear and explicit. In unqualified language it says that amongst others the street Scheme No. LXXXIX is non-remunerative in nature and that it was not possible to execute the same from the available funds. It goes on to record that the current financial position of CIT would not permit execution of any such non-remunerative schemes which include Street Scheme No. LXXXIX unless fund is available from external sources like C.M.D.A. grant. In view of this unqualified statement contained in the Note which was approved by the Resolution No. 20 of the Board at the meeting dated 25th November 1986 it is difficult to arrive at any conclusion other than that the very purpose of the acquisition proceedings has become non-est and/or infructuous and as such cannot be permitted to continue any further. On this ground alone the impugned notices and the acquisition proceedings must be declared to have become void and should be quashed. The jurisdiction of the Court to consider subsequent events was not questioned in this case. The submission made on behalf of the respondents in this context does not bring out any saving device. Indeed the submission is rather vague and seems to beg the question.
25. The other submissions of Sri Pal are also of substance. The findings of the learned Judge in relation to the conduct of CIT have been extracted above. These findings are highly critical of the conduct of CIT in relation to the implementation of the acquisition proceedings. The learned Judge has found such conduct to be "scandalous", the delay was neither fair nor proper, and such unnecessary delay could not be condoned. In view of such findings the submission that the learned Judge should have quashed the proceedings is not without merit. That unjustified and unexplained delay in continuing and completing acquisition proceedings may in some cases lead to the conclusion of lack of bona fides on the part of the acquiring authorities has been recognised by the Supreme Court in Depak Pahwa v. Lt Governor of Delhi, . The Full Bench decision of the Punjab and Har-yana High Court in Radheshyam Gupta (supra) also supports the contention that unexplained and inordinate delay is a relevant, if not a conclusive, factor in determining the colourable exercise of power in the context of land acquisition proceedings. It is true that generally, acquisition proceedings are initiated for a public purpose and necessarily in the public interest. We are also conscious of the fact that the governmental machinery tacks speed because of various justified and unjustified constraints. But the individual interest of the citizen cannot be altogether ignored. If the Government freezes the property of a citizen for 26 years and even then it is uncertain how it proposes to acieve the public purpose, any further continuance of such acquisition proceedings must be held to be unfair and arbitrary. We recognise the principle that weightage should be given to public interest. But we should not give it such weight as would make it oppressive vis a vis the individual right of citizen to freely deal with his property. We would, therefore quash the acquisition proceedings on the ground of 'scandalous' delay.
26. That apart, it may be noted that the Note which is Appendix D to the proceedings of the 2633rd meeting of CIT dated 25th November 1986 itself says that the proceedings in relation to, inter alia, Street Scheme No. LXXXIX have lapsed according-to the provisions of amended Land Acquisition Act. On the admitted facts it must be held to be so.
27. For these reasons aforesaid, the appeal is allowed. The judgment and order dated 26th September 1980 and the consequential order dated 27th March 1981 are set aside. The Rule Nisi is made absolute. Let appropriate writs be issued.
28. There will be no order as to the costs.
K. M.Yusuf, J.
29. I agree.
30. Appeal allowed.