Gauhati High Court
Shankar Prasad Banik And Anr. vs Collector, Karimganj And Ors. on 7 September, 1992
Equivalent citations: AIR 1994 GAUHATI 56, (1993) 1 GAU LR 234
Author: S.N. Phukan
Bench: S.N. Phukan
ORDER S.N. Phukan, J.
1. The writ petitioners have assailed the order of the Govt. dated 11 -12-85 issued under Section 4 of the Land Acquisition Act, 1894, for short the Act, vide Annexure-1 and also the order of the Slate Govt. dated 9th January, 19X7 passed by the Govt. in the Revenue Department rejecting the appeal of the writ petitioners filed under Section 15A of the Act. The said order is at Annexure-4.
2. By notification dated 11th December, 1985 issued under Section 4 of the Act, the Govt. notified that a plot of land measuring 19 kathas 7 chotaks in Dags Nos and Khatians Nos. given in the said notification was likely to be needed for construction of a godown for Karimgani Wholesale Co-operative Stores Ltd., Karimganj. There was an enquiry under Section 5A of the Act and a report was submitted by the Collector. It may be stated that writ petitioners also filed objections before the Collector vide Annexure-A/2. Being aggrieved by the report of the Collector, Karimganj district, a petition was filed under Section 15A of the Act before the State Govt. which as stated above was dismissed by the impugned order dated 9-1-87.
3. Heard Mr. N.M. Lahiri, learned Sr. Advocate for the writ petitioners and Mr. A.K. Goswami, learned Govt. Advocate.
4. Mr. Lahirid has submitted that the impugned order dated 9-1-87 is not tenable in law, inasmuch as, merely because a land is required for a co-operative Society it cannot be acquired on the ground of public purpose. Much stress has been laid by the learned counsel regarding public purpose. In this connection learned counsel has drawn the attention of this Court to clause (cc) and clause (e) of Section 3 of the Act and also Section 4 of the Act, Clauses (cc) and (e) of Section 3 of the Act are quoted below:--
"(cc) the expression" "corporation owned or controlled by the State" means any body corporate established by or under a Central, Provincial or State Act and includes a Government company as defined in Section 167 of the Companies Act, 1956, a society registred under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, being a society established or administered by Government and a Co-operative society within the meaning of any law relating to co-operative societies fur the time being in force in any State, being a Co-operative Society in which not less than fifty-one per centum of the paid up share capital is held by the Central Government or by any State Government or Government, or partly by the Central Government and partly by one or more State Governments;
(e) The expression "Company" means-
(i) a company as defined in Section 3 of the Companies Act, 1956, other than a Government Company referred to in Clause (cc);
(ii) a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, other than a society referred to in Clause (cc);
(iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in Clause (cc);
According to learned counsel by reading the above two Clauses and Section 4 of the Act it is clear that land can be acquired on the ground of public purpose for a co-operative society where Central Govt. or the State Govt. or both have got more than 51 % of the shares in the said co-operative society. Learned counsel has urged that in respect of other co-operative society it will come under Clause (e) of Section 3 of the Act and such land can be acquired only by following the provisions contained in Part VII of the Act i.e. Sections 38A to Section 44B of the Act. Learned counsel has urged that in the impugned order dated 9-1-87 though it has been stated that the land is require by a co-operative society it was not specifically stated that the co-operative society in question i.e. Karimganj Whole-sale Co-operative Stores Ltd. is a co-operative society coming under Clause (cc) of Section 3 of the Act and in other words, there is nothing to show that the State Govt. and/or Central Govt. have got 51% share in the co-operative society.
5. On the other hand Mr. A.K. Goswami, learned counsel has very strenuously urged that this point was never urged either before the Collector or before the State Govt. and this cannot be taken up at this stage. Regarding the report of the Collector under Section 5A, the learned Govt. advocate has urged that on two dates adjournment was prayed for on behalf of the writ petitioners and duly granted, but on the third date it was rejected and thereafter by order dated 12-5-86 the Collector send the report under Section 5A. According to learned Govt. Advocate under Section 15A of the Act no appeal or revision would lie as a report under Section 5A is neither an order nor any finding of the Collector.
6. In support of the contention that for the first time such a plea cannot be taken, Mr. Goswami has placed reliance in a decision of the apex Court in Tropical Insurance Company Ltd. v. Union of India, AIR 1955 SC 789 wherein it was held that petitioners cannot be allowed to urge grounds which they had not taken in their petition. Mr. Lahiri has finally stated that this point was not taken in the present writ petition.
7. Be that as it may, even if the law point is not urged by the writ petitioner, this Court is duty bound to examine any question of law and cannot allow any illegal order to stand.
8. Reading Clauses (cc) and (f) of Section 3 of the Act it is clear that the legislature intended to divide co-operative societies in two groups for the purpose of the Act viz (i) a Cooperative Society where a State Govt. and/or Central Govt. hold 51% share; (ii) other cooperative societies. If it is a co-operative society coming under Clause (cc) of Section 3 of the Act automatically any land acquired for the said co-operative society will be for public purpose. But in case of other cooperative society it would come under Clause (e) of Section 3 i.e. such co-operative society shall be deemed to be a company and before acquiring any land for such co-operative society the acquiring authority shall have to follow the provision contained in Chapter-VIII of the Act. Admittedly in the case in hand this was not followed. That apart, neither in the Notification under Section 4 at Annexure 1 or in the impugned order of the State govt. dated 9-1-87 there is no indication whether the present co-operative society comes under Clause (cc) or under Clause (f) of Section 3 of the Act. This shall have to be decided first by the acquiring authority before proceeding with the land acquisition proceeding.
9. Mr. Goswami, learned Govt. advocate has urged very interesting point, as stated above, that Section 15A of the Act is not applicable to any report submitted by the Collector under Section 5A of the Act. On being asked by this Court as to which section this Section 15A will apply, the learned Govt. advocate submitted that it may apply to Section 6 of the Act. On the other hand Mr. Lahiri has submitted that Section 15A empowers the State Govt. to call for any record of any proceeding for the purpose of satisfying itself as to legality or propriety of any finding or order passed etc. and as such any report or finding of the Collector can be challenged by the aggrieved party before the State Govt. by invoking the above section.
10. I am unable to accept the contention of Mr. Goswami, learned Govt. advocate as the order under Section 6 of the Act is issued by the State Govt. and as such calling for any record or any proceeding cannot arise. That apart in Section 15A it has been specifically stated that any proceeding would mean whether by way of enquiry or otherwise. There cannot be any dispute that under Section 5A, Collector makes an enquiry of the claims and as such an aggrieved party can definitely approach the State Govt. by invoking Section 15A of the Act.
11. Mr. Lahiri has placed reliance in a decision of the apex Court in General Govt. Servant Co-operative Housing Society v, Wahabuddin, AIR 1981 SC 868, more particularly para 8 of the judgment. In that judgment the apex Court held that Rule 4 of the Land Acquisition Rules, 1953 is mandatory and further held that notification under Section 6 is invalid for non-compliance of the said Rule 4. This decision has been placed before this Court to bring home the point that in the event in the co-operative society in question the Govt. does noi hold 51% share, the acquiring authority shall have to follow the procedure laid down for acuiring land for a company under Chapter VII of the Act. I find considerable force in the submission of Mr. Lahiri and accept it.
12. For what has been stated above, the order No. RLA. 117/85/109 dated 9-1-87 vide Annexure-4 issued by the Govt. in the Revenue Department (Land Revenue Department) Land Acquisition Branch is set aside and the matter is remanded to the State Govt. to decide the following points:
(i) Whether in the co-operative society in question the State Govt. and /or Central Govt. hold 51 % share and if it is answered in the affirmative the Land Acquisition proceeding shall proceed. If it is found by the State Govt. that in the said co-operative Society, Govt. does not hold 51 % share it comes under definition of company vide Clause (e) of Section 3 and in that event the entire process shall have to start fresh by following the procedure laid down in Chapter VII of the Act. Before passing any final order the State Govt. shall give a personal hearing to writ petitioners and shall also consider other points which have been raised before this Court and also before the learned Collector, and thereafter shall dispose of the matter as indicated above by passing a reasoned and speaking order. State Govt. shall give due notice to the writ petitioners before fixing a date for hearing. Unless the above procedure is complied with neither the State Govt. nor the Collector shall proceed with the present Land Acquisition proceeding.
With the above direction and observation petition is disposed of. Stay order, if any, stands vacated. Parties to bear their own costs.