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Sm. Basumati Bag Vs. Collector, Howrah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 400 (W) of 1973
Judge
Reported inAIR1974Cal162,78CWN29
ActsConstitution of India - Article 226; ;Hooghly River Bridge Act, 1969 - Section 24; ;West Bengal Land (Requisition and Acquisition) Act, 1948 - Section 3
AppellantSm. Basumati Bag
RespondentCollector, Howrah and ors.
Appellant AdvocateN.C. Chakrabarty and ;Bhattacharjee, Advs.
Respondent AdvocateDipankar Gupta, Sr. Standing Counsel, ;B.C. Basak, ;Shiblal Bose and ;Shyamal K. Sen, Advs. (for Nos. 1, 2, 6 and 10), ;Padmabindu Chatterjee and ;Sushil Kr. Biswas, Advs. (for Nos. 3, 4 and 5) and Ha
DispositionPetition dismissed
Cases ReferredSachindra Mohon Nandi v. State of West Bengal.
Excerpt:
- .....ordinary powers of acquisition and requisition under the provisions of general statutes like the land acquisition act or the said act [west bengal land (requisition and acquisition) act, 1948], to deal with the contention it will be necessary to refer to the provisions of section 24 of the bridge act which is set out hereunder.'24. any land, with or without construction thereon, required by the commissioners for carrying out their functions under this act may be acquired under the provisions of the land acquisition act, 1894 and any such acquisition shall be deemed to be acquisition for a public purpose within the meaning of clause (f) of section 3 of that act.'8. the learned standing counsel, appearing on behalf of the state of west bengal and the other learned counsel on behalf of.....
Judgment:
ORDER

Anil Kumar Sen, J.

1. An order of requisition of land, needed for the Second Hooghly River Bridge Project, is the subject-matter of challenge. The impugned order is one dated November 23. 1972 passed by the duly authorised Collector under Section 3 of the West Bengal Land (Requisition and Acquisition) Act. 1948 (West Bengal Act II of 1948) (hereinafter referred to as the said Act). Purpose of acquisition recited is 'providing proper facilities for transport and communication in connection with the construction of the Howrah approach and interchange of the Second Hooghly River Bridge Project'. Land involved are the two plots at Howrah being plot No. 2/33 Sheet No. 144 and plot No. 1 of Sheet No. 148 These plots admittedly belong to respondent No. 3. the Commissioners for the Port of Calcutta (hereinafter referred to as the Port Commissioners). The petitioner claims to be a tenant in respect of these two plots under the Port Commissioners carrying on pisciculture as the plots constitute a jheel.

2. Facts as they emerge from the affidavits of the different parties may shortly be set out as follows. The aforesaid two plots come within the alignment of the approach viaduct of the proposed bridge on the Howrah side. They are also urgently needed for the construction of approach roads and railway sidings which are necessary for starting construction of the bridge itself as also its approach. Construction of the proposed Bridge and its approach is entrusted with the Hooghly River Bridge Commissioners (hereinafter referred to as Bridge Commissioners) appointed by the State Government under Section 3 of the Hooghly River Bridge Act, 1969 (hereinafter referred to as the Bridge Act). The Bridge Commissioners were so appointed by the State Government by a notification dated February 11, 1970 read with July 21, 1970. The scheme of the project having been finally approved, the Bridge Commissioners by their resolution dated September 11 1970 entrusted the Trustees for the Improvement of Howrah the construction of the approach road and the interchange on the Howrah side as an implementing agency. Such trustees then suggested to the Bridge Commissioners that the aforesaid two plots should immediately be requisitioned -- the possession of other required plots being made available on mutual arrangement. The Bridge Commissioners by their resolution dated September 30, 1970 accepted the suggestion and requested the State Government to forthwith requisition the aforesaid 2 plots. Accordingly by the impugned order the Collector requisitioned the plots in dispute. Feeling aggrieved by this order the petitioner moved this Court on February 28, 1973 although the order was served on her in or about the month of November 1972 and obtained the above Rule on a writ petition.

3. The Rule is being contested by the different sets of respondents, viz. (1) the State of West Bengal and the requisitioning authority, (2) the Commissioners for the Port of Calcutta. (3) The Trustees for the Improvement of Howrah, (4) the Hooghly River Bridge Commissioners, and (5) the Bhagirathi Construction. All the aforesaid respondents except Bhagirathi Construction have filed their affidavits-in-opposition.

4. The Port Commissioners not having denied specifically the petitioner's claim of tenancy under them in respect of the disputed two plots have pleaded with reference to certain undisclosed decisions in civil litigations between the parties that 'at no point of time there was any concluded contract between the Commissioners and the said petitioner in respect of the property in dispute in terms of the compromise stated before'. Though Mr. Chatterjee, appearing on behalf of the said Commissioners, has taken a preliminary objection that the petitioner not having any subsisting right, title and interest in the two plots, the application at her instance is not maintainable in law, yet on the pleadings between the parties and insufficient materials placed before this Court, it is not possible for this Court to decide the dispute as to title raised by Mr. Chatterjee. But as the petitioner's possession on the plots is not in dispute I am of the opinion that the application challenging therequisition is maintainable in law.

5. Mr. Chakraborty, appearing in support of this Rule, has raised three points. His first contention is that when the land is needed for the proposed Bridge project, recourse could be taken only to Section 24 of the Bridge Act for its acquisition so that an order of requisition under the said Act is not within the sanction of law. Secondly, it has been contended by him that an order of requisition under Section 3 of the said Act without any previous notice to show cause is not in accordance with law. The third point raised by him is to the effect that the Bridge Commissioners could not have lawfully delegated their powers and functions to the Trustees for the Improvement of Howrah and as such an order of requisition with a direction to make over possession of the land to such trustees is not in accordance with law.

6. All the three points so raised by Mr. Chakraborty have been strongly contested by the learned Counsel, appearing for the different sets of respondents.

7. The first point raised by Mr. Chakraborty had not been raised in the writ petition but. nonetheless it being a pure question of law, I have allowed Mr. Chakraborty to raise the point of the hearing. There is no dispute on the facts set out hereinbefore that on the urgency of the need the requisition was made on behalf of the State of West Bengal by the Collector specially empowered under Section 3 of the said Act. Section 3 undoubtedly authorises requisition for the purpose of providing proper facilities for transport and communication. Petitioner is also not disputing the fact that the purpose of the present requisition clearly comes within the sanction of Section 3. But what is contended by Mr. Chakraborty is that a special statute was enacted for the construction, maintenance find control of bridges across the river Hooghly and particularly to provide facilities for the construction of the second Hooshly River Bridge. This special statute is the said Bridge Act of 1969. Section 24 of this Act provides, according to Mr. Chakraborty, for powers of acquisition of land needed for the purposes of the bridge. He, therefore, contends that when such a special power and a special procedure for acquisition have been provided for such special provision by necessary implication must be deemed to exclude ordinary powers of acquisition and requisition under the provisions of general statutes like the Land Acquisition Act or the said Act [West Bengal Land (Requisition and Acquisition) Act, 1948], to deal with the contention it will be necessary to refer to the provisions of Section 24 of the Bridge Act which is set out hereunder.

'24. Any land, with or without construction thereon, required by the Commissioners for carrying out their functions under this Act may be acquired under the provisions of the Land Acquisition Act, 1894 and any such acquisition shall be deemed to be acquisition for a public purpose within the meaning of Clause (f) of Section 3 of that Act.'

8. The learned Standing Counsel, appearing on behalf of the State of West Bengal and the other learned Counsel on behalf of the other sets of respondents supporting him, have contended that Section 24 of the Bridge Act does not provide for any independent power of acquisition nor does it lay down any special procedure for such acquisition. The power of acquisition emanates from the Land Acquisition Act, 1894 and the procedure to be followed also is the procedure provided for in the said Act. The true implication of Section 24 is to give statutory sanction to acquisition of lands under the Land Acquisition Act needed for carrying out the functions under the Bridge Act and render such purpose not justiciable by the statutory declaration that such purpose would be a public purpose. In any event, it has been contended by the learned Standing Counsel that the Bridge Act nowhere provides for any power or procedure of requisition so that nothing in Section 24 can be read to abrogate by necessary implication the authority of the State Government or its delegate to requisition the land for any purpose set out in Section 3 of the said Act. In my opinion there is ample substance in the contention of the learned Standing Counsel. On the plain reading of this provision it is quite explicit that far from excluding the provisions of the Land Acquisition Act, 1894, it specifically provides that the acquisition shall have to be made under that Act even though the necessity may be for carrying out the functions under the Bridge Act. On the scheme of the Act and the provision in Section 24 it is quite explicit that such a provision was made only to extend statutory protection to the purpose of acquisition by providing that acquisitions needed for carrying out the functions under the Act, shall be deemed to be acquisition for a 'public purpose' as defined by Section 3(f) of the Land Acquisition Act. Therefore, Section 24 has the effect of extending the definition clause of the Land Acquisition Act to include therein purpose of carrying out the functions under the Bridge Act. In Section 24 the Legislature in substance adopted the Land Acquisition Act subject to a little modification but never excluded the general laws. Reference may be made to the decision of the Supreme Court in the case of Patna Improvement Trust v. Laxmi Devi, : AIR1963SC1077 . That apart, even if I assume that Section 24 provides for independent power and procedure for acquisition that by itself would not exclude the other general powers under other Acts and particularly the power of requisition under Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 if and when the acquisition or the requisition comes within the sanction of such statutes. This was the view expressed by the Supreme Court in the case of Nandeswar Prasad v. U. P. Govt., : [1964]3SCR425 and adopted by this Court in the case of Commrs. for the Port of Calcutta v. Pulin Behari Mandal (F.M.A. No. 674 of 1971 disposed of on 3-8-1972 = reported in : AIR1973Cal537 ). In this view the first contention raised by Mr. Chakraborty must fail and is overruled.

9. The second point raised by Mr. Chakraborty is obviously based on a recent decision of the Supreme Court and raises some important questions of law. According to Mr. Chakraborty, when Section 3 of the said Act authorises requisition of property which may as well be subsequently acquired, such a provision in the statute must be read to impose by necessary implication an obligation on the requisitioning authority to issue a prior show cause notice and to give a hearing before making the order for requisition. Admittedly in the present case no such opportunity was given to the petitioner and therefore, it is contended by Mr. Chakraborty that the order is not in accordance with law. Reliance is placed on the decision of the Supreme Court in the case of Madan Gopal v. District Magistrate, Allahabad. : [1973]2SCR610 . The point thus raised by Mr. Chakraborty was also raised earlier by him in the case of Mihir Kumar Sarkar v. State of West Bengal, : AIR1972Cal8 , but the Appeal Court specifically overruled such a contention and expressly held that an order of requisition under Section 3 of the said Act would not be bad if it is made without any prior opportunity to show cause. This Bench decision is binding on me. But according to Mr. Chakraborty this decision stands overruled by the decision of the Supreme Court in the case of Madan Gopal (supra).

10. In Madan Gopal's case : [1973]2SCR610 Supreme Court struck down an order of requisition made under Section 3 of U. P. Temporary (Accommodation) Requisition Act, 1947, as it was made without a prior notice to show cause; in construing the said provision Supreme Court no doubt held that Section 3 of that Act though not expressly, by necessary implication entails an obligation for the requisitioning authority to furnish a prior opportunity to show cause. In my view, however, the Supreme Court found such an obligation implied in the provision on the terms and the scheme of Section 3 of the U. P. Act and not merely because the statute provides for requisition of property as suggested by Mr. Chakraborty. It is true that some observations made in that decision when read bereft of the context may support the extreme contention of Mr. Chakraborty that no law can authorise requisition of property except on a prior opportunity to show cause. But that is not the true import of the decision of the Supreme Court relied on by Mr. Chakraborty. Section 3 of the U. P. Act has got certain distinguishing features distinct from the West Bengal Act. That provision is in the following terms:--

'3. Power of requisition.--If, in the opinion of the District Magistrate, it is necessary to requisition any accommodation for any public purpose, he may, by order in writing, requisition such accommodation and may direct that possession thereof shall be delivered to him within such period as may be specified in the order; provided that the period so specified shall not be less than 15 days from the date of the service of the order:

Provided also that no building or part of a building exclusively used for religious worship shall be requisitioned under this section:

Provided further that no accommodation which is in the actual occupation of any person shall be requisitioned unless the District Magistrate is further of the opinion that suitable alternative accommodation exists for his need or has been provided to him.'

11. Supreme Court was interpreting the main provision in the light of the two provisos and particularly the further proviso in holding that such a provision contemplates a prior opportunity to be given before an order is made. There can be no doubt that the further proviso clearly describes an enquiry or investigation which can hardly be done except on a notice to the person whose property is going to be requisitioned to find out as to whether such a person would be rendered homeless by the order or not. Conclusions arrived at must be read as those on the scheme of entire provision. Observation in paragraph. 8 of the decision cannot in my opinion be read as an independent ground or reason for the conclusion. Succeeding paragraphs make that position clear. Observations in the decision (paragraph 5) relied on by Mr. Chakraborty must be read in the context of the Act under consideration and its scheme and so read it would be evident that on the particular scheme of the Act the Supreme Court found such an obligation to show cause implied therein. I take this view as otherwise it would be difficult to reconcile the decision in Madan Gopal's case : [1973]2SCR610 (supra) with an earlier decision of the Supreme Court in the case of Sachindra Mohon Nandi v. State of West Bengal. AIR 1971 SC 963. where an order of requisition under Section 3 of the West Bengal Act now under consideration made without any prior notice to show cause was upheld by the Supreme Court.

12. The West Bengal Act now under consideration is materially different. Section 3 (1) and (1A) of West Bengal Act provides as follows:--

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 providing proper facilities for transport, communication, irrigation or drainage, or for the creation of better living conditions in rural or urban areas not being x x x an industrial or other area excluded by the State Government by a notification in this behalf by the construction or reconstruction of dwelling places for people residing in such areas, 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.

(1A) A Collector of a district, [an Additional District Magistrate or the First Land Acquisition Collector. Calcutta] when authorised by the State Government in this behalf, may exercise within his jurisdiction the powers conferred by Sub-section (1).

The object and scheme of the West Bengal Act is widely different. Its object is not to find out house accommodation in cities or towns where there exists extreme scarcity of such accommodation as is the case with U.P. Act. Purpose of acquisition is also limited to specific purposes set out in the Act itself. Most distinguishing feature is that there is no parallel provision to the further proviso in the U. P. Act which may require an enquiry or investigation with consequential notice to show cause. It is on this text and scheme that the Appeal Court in Mihir Kumar Sarkar's case : AIR1972Cal8 expressly overruled a contention similar to the one now raised by Mr. Chakraborty and it was held on the interpretation of this particular statute that such a prior notice to show cause is excluded. Such a view was taken relying on the decision of the Supreme Court in AIR 1971 SC 963 (supra). Therefore, in view of material difference of the schemes in the two Acts and in view of the fact that Appeal Court's decision in Mihir Kumar Sarkar's case is based also on a Supreme Court decision in S.N. Nandi's case, : [1971]3SCR791 (supra). I am unable to accept the contention of Mr. Chakraborty that the Appeal Court's decision stands overruled by the decision in Madan Gopal's case : [1973]2SCR610 (supra).

13. That apart, the learned Standing Counsel is well justified in pointing out that in Madan Gopal's case : [1973]2SCR610 . the Supreme Court did not lay down an inflexible rule requiring a prior show-cause notice and a hearing for every case of requisition or acquisition. On the other hand, the Supreme Court pointed out that the dimension of hearing may well vary according to the circumstances of each case. The barest minimum, however, is a fair hearing. The learned Standing Counsel has rightly contended that such requirement will be duly fulfilled even if the party aggrieved is given an opportunity to make a representation after the order and such representation is duly considered on its merits so that if the representation succeeds the property may be released under Section 6 of the said Act. It is not necessary that in each case the hearing must be prior to the order and based on a show-cause notice. That is how the Supreme Court interpreted the West Bengal Act in Sachin Nandy's case AIR 1971 SC 963. Adopting such construction it must be held that the order for requisition will not fail only because it is not based on a prior show-cause notice or a prior hearing. In the present case the order was made on November 23, 1972 and it was served on the petitioner some time in November 1972. Possession was taken over on November 27, 1972, work of filling up was started on January 6, 1973. The petitioner had ample opportunity to make a representation if she really felt aggrieved by the order. It is, however, not the petitioner's case that she ever made any representation until she moved this Court on February 28, 1973. In this view the second point raised by Mr. Chakraborty fails and is overruled.

11. So far as the third point raised by Mr. Chakraborty is concerned, it is difficult to appreciate the relevance of the objection. Reference is made to the order of requisition which indicates that possession being taken over should be made over to the Executive Engineer of the Trustees for the Improvement of Howrah. Relying on this Mr. Chakraborty contends that under Section 9 of the Bridge Act as the function lies with the Bridge Commissioners, the said Commissioners acted illegally in delegating their functions to the Trustees for the improvement of Howrah. It is difficult to find what is the relevance of such an issue to the legality or otherwise of the requisition order. If the order of requisition is based on a purpose sanctioned by the statute and is otherwise made in accordance with law by a competent authority it must be held to be lawful. Whether after such requisition for execution of work the land is handed over to the Bridge Commissioners or to their delegate wholly irrelevant for deciding the legality or otherwise an order of requisition. That apart, as pointed out by Mr. Biswas, appearing on behalf of the Trustees for the Improvement of Howrah, this contention of Mr. Chakraborthy is based on a misconception. Undoubtedly Section 9 imposes the obligation on the Bridge Commissioners but it has been rightly pointed out by Mr. Biswas there has been no delegation of either power or the function by the Bridge Commissioners. What has been done is to engage an implementing agency in the Trustees for the Improvement of Howrah in executing the work on the approach road and interchange on the Howrah side. The Trustees for the Improvement of Howrah accepted such agency subject to the sanction of the State Government and subject to the control of the Bridge Commissioners. It is not delegation at all as still it remains the functions of the Bridge Commissioners. In this view there is no substance in the third point raised by Mr. Chakraborty.

15. Before concluding, it must be pointed out that two other points raised in the writ petition have not been pressed by Mr. Chakraborty. One was that there was illegal switching over of the acquisition proceeding from the Land Acquisition Act to the West Bengal Land (Requisition and Acquisition) Act, 1948. Such a point was sought to be raised because of an earlier notification under Section 4 dated January 4, 1972 but that was a notification for exploratory survey and authority for such survey. It was not a notification for acquisition under Section 4 of the Land Acquisition Act and no proceeding for acquisition under the provisions of the said Act having been initiated there is no question of switching over. The other point is to the effect that Bridge Commissioners had not lawfully been constituted. This point also has not been pressed in view of the notification referred to in the affidavit-in-opposition of the respondents.

16. On the conclusions as above this application fails.

17. The Rule is discharged.

18. There will be no order as to costs.


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