Calcutta High Court
M/S. Rungta Agencies Ltd. & Ors vs State Of West Bengal & Ors on 25 September, 2008
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No. 654 of 2004
M/s. Rungta Agencies Ltd. & Ors.
versus
State of West Bengal & Ors.
For Petitioner : Mr. Ashok Banerjee,
Mr. Pratik Banerjee
For Respondent : Mr. Bikash Ranjan Bhattacharya,
Mr. P. S. Bose,
Mr. Haque
For State : Mr. Shymal Ganguly,
Mr. G. Wilsan.
Judgment On : 25-09-2008.
This writ application is filed by the petitioners for a direction upon the
respondents to release the lands measuring about 4 Bighas 19 cottachs 18
chittaks and 9 square feet lying and situated at Pakuria and Khalia Mouzas,
Howrah(West), bring Dags No.88, 1308, 1309, 1310, 1312, 1316, 1317, 1318,
1319 (hereinafter referred to as the said lands).
The fact of the case in a nut shell is this notice under sub-section (1) of
Section 3 of the West Bengal Land (requisition and acquisition) Act 1948 was
issued in respect of the said lands. On February 4, 1989 notification under sub-
section (1a) of Section 4 was also issued for acquiring the said land. The above
notification was published in the Calcutta Gazette extraordinary on December
11, 1989. The life of the West Bengal Land (requisition and acquisition) Act 1948
was not extended beyond March 31, 1997.
The Land Acquisition Act 1894 was amended on May 2, 1997 by
introducing Sections 9(3A) and 9(3B). On August 26, 2003 notice under Section
9(3B) of the Land Acquisition Act 1894 was purportedly issued in respect of the
said lands. Subsequently, the award was purportedly published under the Land
Acquisition Act 1894 in respect of the said lands and notice sub-section(2) of
Section 12 was also purportedly issued in respect of the said lands on September
13, 2004.
According to the petitioner the said lands were not acquired in accordance
with law because the life time of the West Bengal Land (requisition and
acquisition) Act 1948 was not extended beyond March 31, 1997. The acquisition
proceeding initiated in respect of the said lands was not completed within that
time. Therefore, there was no scope to acquire the said lands under the West
Bengal (requisition and acquisition) Act 1948. According to the petitioners no
notice was issued under sub-section (3B) of Section 9 of the Land Acquisition Act
1894 in respect of the said lands. Therefore, the said lands were not acquired
either under the provisions of West Bengal Land (requisition and acquisition) Act
1948 or under the Land Acquisition Act 1894.
The second limb of argument of the petitioners is this the lands of similarly
circumstanced land owners were released by orders dated October 13, 1979,
December 2, 1949, January 3, 2000, January 27, 2000, March 12, 2001,
February 3, 2000, February 14, 2001, November 1, 2000 and March 5,
2001(annexure 'P-16A') at page 155 to 165 to this writ application.
The third limb of argument of the petitioners is this there was an
assurance of releasing the said lands subject to an undertaking from the
petitioners not to claim any requisition compensation damages etc.,. Pursuant
thereto the petitioners furnished their undertakings and draft deed of release to
the respondent authority (annexure 'P 14 at pages 145 to 152 to this writ
application). But no further step was taken to release the same. According to
the petitioners since on the basis of the promise extended by the respondent
authority to the petitioners they altered their position by giving undertaking not
to claim requisition compensation damages etc., they are entitled to get back the
said lands on the basis of the doctrine of promissory estoppel.
Reliance is placed upon the decision of Southern Petrochemical
Industries Co. Ltd. Vs. Electricity Inspector and ETIO reported in AIR 2007
SC 1984 to submit that in case of hostile discrimination, the action of the part
of the authority is liable to be set aside. Reliance is further placed upon the
decision State of Punjab Vs. Nastle India Ltd. reported in (2004) 6 SCC 465
to submit that in case of a promissory estoppel the petitioners are entitled to get
the relief from a court of law.
According to the state respondents admittedly the life time of the West
Bengal Land (requisition and acquisition Act) 1948 was not extended beyond
March 31, 1997. Admittedly the proceeding under the above Act could not be
completed by the respondent authority in respect of the said lands. But the
notice under sub-section (3B) of Section 9 of the Land Acquisition Act was
issued in respect of the said lands on August 26 2003 and the same was
completed by declaring an award under the above Act. Therefore the said lands
were acquired in accordance with law. It is submitted on behalf of the
respondents relying upon the records that some of the adjacent lands were
released on the basis of the orders passed by the courts of law. With regard to the
third limb of argument of the petitioners, it is submitted on behalf of the
respondents that there was no promise from the competent authority to release
the lands. The correspondences were in between the requiring body and the
petitioner. Therefore, the petitioners were not entitled to get back their lands on
the basis of such correspondences.
Reliance is placed on the decision of State of West Bengal Vs. Soumendra
Mohan Dey reported in ILR (2003) 1 410, Awadh Bihari Vs. State of Bihar
reported in AIR 1996 SC 122, Chandra Bansi Singh Vs. State of Bihar
reported in AIR 1984 SC 1767 to submit that once the acquisition proceeding
is concluded in accordance with law, no order can be passed for releasing the
same.
Reliance is also placed on behalf of the state respondents on the decision of
Shrijee Sales Corporation & Anr. Vs. Union of India reported in (1997) 3 SCC
398 to submit that in facts and circumstances of the instant case the doctrine of
promissory estoppel cannot be applied for the purpose of returning the
possession of the lands to the petitioners.
It is submitted on behalf of the respondent nos.3 and 4 being the acquiring
body that the notice under Section 4(1a) of the West Bengal Land (acquisition
and acquisition) Act 1948 was issued in this case. Therefore, in terms of the
provisions of sub-section(2) of Section 4 the land was vested to the State in view
of the notice issued under sub-section(3B) of Section 9 of the Land Acquisition
Act 1894. It was not open to the petitioners to make a prayer before the court to
release the land. With regard to the question of releasing the lands to the
similarly circumstances persons, it is submitted on behalf of the respondent nos.
3 and 4 that in all those cases the lands were released on the basis of consent
orders passed by the court of law. In this case, there was no promise from the
appropriate authority of returning the said lands. Further the petitioners failed to
prove that they were on the same footing in connection of the persons whose
lands were returned. Now, the only relief can be granted to the petitioners is a
direction for payment of award money to them.
Reliance is placed on behalf of the respondent nos. 3 and 4 on the decision
of Sabitri Devi & Ors. Vs. State of West Bengal & Ors. reported in 2002(3)
CHN 108 to submit that the provisions of sub-section (3B) of Section 9 of the
Land Acquisition Act 1948 has been declared intra viris the constitution.
Reliance is also placed on the decision of the State of West Bengal Vs.
Soumendra Mohan Dey(supra) in support of the above submission. Reliance is
also placed on the decision of Arvind Industries: Vijay Oil Mills Co. Vs. State
of Gujarat: Assistant Commissioner of Sales Tax reported in AIR 1995 SC
2477 to submit that the doctrine of promissory estoppel cannot be invoked were
the pre-conditions of assurance and alteration of position on such assurance are
absent.
I have heard the Learned Counsels appearing on behalf of the respective
parties and I have considered the facts and circumstances of the case. Before
entering into other points of law involved in this writ application, let it be
examined first whether the acquisition proceeding in respect of the said land was
completed in accordance with law.
It is an admitted position that the notice under sub-section 1 of Section 3
of the West Bengal Land (requisition and acquisition) Act 1948 was issued in
support of the said lands on May 21, 1982. It is also not in dispute that notice
under sub-section (1a) of Section 4 of the West Bengal land (requisition and
acquisition) Act 1948 was also issued in respect of the said plots of land. It is
also not in dispute that the acquisition proceeding in respect of said plots of land
was not completed during the life time of the West Bengal Land (requisition and
acquisition) Act 1948. It is the case of respondents that notice under sub-section
(3B) of Section 9 of the Land Acquisition Act was issued in respect of the said
lands on August 26, 2008 and on the basis of such notice the proceeding was
concluded in accordance with the provisions of the Land Acquisition Act 1894.
Since the above claim of the respondents of issuing notice under sub-section 3B
of Section 9 was disputed by the petitioners the court directed the respondent
authority to produce the records before the court. Pursuant to such direction the
records were produced before the court. The notices claimed to be issued under
sub-section (3B) of Section 9 of the Land Acquisition Act 1894 is quoted below:
"From of special notice to be issued under sub-sections (3) and (4) of
section 9, Act of 1894, to the suppliers of the land to be taken up and other
persons known or believed to be interested in it, or to be entitled to act for
persons so interested.
Notice is hereby given that 21.245 acres (8.597 hectares), more or less
of land situate in or near the mouza Pakuria J.L. No.54, P.S. Domjur
District Howrah described below and recently marked out and measured, are
about to be taken by the Government for under Act 1 of 1894, in
accordance with a Declaration No.9252- L.A (II) I-G/29/89 dated 04-2-1989,
published in the Government Gazette of the 14-12-1989 (date), The date of
declaration under section 6 of the Act is......
2. If you have any interest in this land or are entitled to act for
person so interested, you are hereby called upon to appear personally or by
agent on 28/1/04 at the office of Khalia Co. Bank Ltd., at 12=00 A.M. to
state the nature of such interest in the land, and the amount and
particulars of any claim you may wish to prefer for the same, and your
objections, if any, to the measurements made under section 4 of the Act.
LAND SCHEDULE
Mouza ....... Pakurua Jurisdiction List No.(s)
......54......................................
P.O............................ District....... Howrah
Revisional Settlement Plot Nos. in full:
Revisional Settlement Plot Nos. in part:
Plot Nos Specific portion of the Plot Area in
Acres hectares
-
________________________________________________________________________________ ___ 841(F) Doba .20 845(F) Sali .33 846(F) Doba .04 1338(F) Sali .10 1340(F) Sali .09 1341(F) Sali .09 1308(F) Sali .07 Collector, Under Act 1 of 1894 ________________________________________________________________________________ _____ Copy forwarded for information and necessary action to:
Sri Nanilal Naskar & 15 Others ...., Vill....... Pakuria P.O......................, P.S. .....Domjur , Dist. Howrah. Owner of the plot(s) mentioned above.
Collector, Under Act 1 of 1894"
It appears that the above notice was issued under sub-sections (3) and (4) of Section 9 of the Land Acquisition Act 1894. Now the provisions of sub-section (3B) of Section 9 of the land Acquisition Act, 1894 were quoted below:
"3B. The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the said Act and notice for acquisition of such land has also been published under sub-section (1a) of section 4 of the said Act, and, in every such case, the provisions of section 4, section 5, section 5A, section 6, section 7, section 8 and section 16 of this Act shall be deemed to have been complied with.
Provided that the date of publication of notice under sub-section (1a) of section 4 of the said Act shall be the date of reference for purpose of determining the value of such land under this Act:
Provided further that in every such case, the Collector shall make an award under section 11 in respect of such land only for the purpose of payment of due compensation to the persons interested in such land where such land has, upon the Collector taking procession thereof, already vested absolutely in the Government, free from all encumbrances".
After perusing provisions of sub-section 3B of Section 9 of the Land Acquisition Act 1894 and the form of special notice to be issued under sub- section (3) and Section(4) of sub-section (9) of the Land Acquisition Act 1894, the above notice cannot be claimed to be the notice issued under Section (3B) of Section 9 of the Land Acquisition Act 1894.
Therefore, I find that the proceeding under reference was not continued under the Land Acquisition Act 1894 by invoking the provisions of sub-section (3B) of Section 9 of the Land Acquisition Act 1894.
The law is settled on this aspect that where a power is given on the basis of a statutory provision to do a certain thing in a certain way, it must be done in that way or not at all. In this regard the relevant portions of the decision of Nazir Ahmed Vs. King Emperor reported in AIR 1936 PC 253 are quoted below:
"To this contention it was answered that there was no ground for reading the word "may" in S. 164 as meaning "must" on the principle described in 5 A C 214(18). There is no need to call in aid this rule of construction--well recognised in principle but much debated as to its application. It can hardly be doubted that a magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts - 1 Ch D 426 (19) at p. 431 - and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to S.164."
In view of the above settled principles of law I find that the said lands were not acquired by the respondent authorities in accordance with law. Therefore, the other issues involved in this case need not be gone into to give appropriate directions for releasing the said lands to the petitioners.
I therefore direct the respondent authority to release the said lands in favour of the petitioners within three months from the date of communication of this order.
However, this order will not prevent the respondent authorities to acquire the lands under reference in accordance with law.
The writ application and the application being G.A. No.3482 of 2007 are, thus, disposed of.
There will be, however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J. )