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Bamandas Mukherjee Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 10169(W) of 1983
Reported inAIR1985Cal159
ActsLand Acquisition Act, 1894 - Sections 4, 6 and 16; ;Evidence Act, 1872 - Section 56
AppellantBamandas Mukherjee
RespondentState of West Bengal and ors.
Appellant AdvocatePradip Kumar Ghosh, ;Sekhar Kumar Basu and ;Hiranya Choudhuri, Advs.
Respondent AdvocateP.K. Chatterjee, ;Geeta Gupta, ;Amitava Chaudhuri and ;Tanmay Goswami, Advs.
- .....acquisition of land at the premises nos. 24b, 25b, ram kama bose street, calcutta, under the land acquisition act, 1894. the purported acquisition was, inter alia, of domestic and residential biddings for the purpoe of expansion of a girls' college, namely maharani kashiswari college at calcutta. a. k. janah j. passed the interim order restraining the respondents from giving any effect to or further effect to the impugned notification and from proceeding with the acquisition of the premises until alternative accommodation is provided to the writ petitioner.2. the case of the writ petitioner is that the land comprising of premises nos. 24b, 25a and 25b, ram kanta bose street, calcutta, are residential buildings with residential rooms of smaller sizes. the said buildings if acquired.....

1. This application has been filed by the Respondents Nos. 1, 2 and 3 being the State of West Bengal, First Land Acquisition Collector and Superintendent, Calcutta, Acquisition Collector's Office for vacating theinterim order passed by A.K. Janah J. on 31 st Oct., 1983. The writ petitioner challenged the purported acquisition of land at the premises Nos. 24B, 25B, Ram Kama Bose Street, Calcutta, under the Land Acquisition Act, 1894. The purported acquisition was, inter alia, of domestic and residential biddings for the purpoe of expansion of a Girls' College, namely Maharani Kashiswari College at Calcutta. A. K. Janah J. passed the interim order restraining the respondents from giving any effect to or further effect to the impugned notification and from proceeding with the acquisition of the premises until alternative accommodation is provided to the writ petitioner.

2. The case of the writ petitioner is that the land comprising of premises Nos. 24B, 25A and 25B, Ram Kanta Bose Street, Calcutta, are residential buildings with residential rooms of smaller sizes. The said buildings if acquired have to be demolished before any expansion for the college can be made. There are other adjacent lands which could have been acquired for the alleged public purpose. The writ petitioner has been staying in one of the said residential premises for the last 40 years. Maharaja Mahindra Chandra College is in the main building situated at premises No. 30, Ram Kanta Bose Street, Calcutta and in ihe morning shift the Girls' College named as Maharani Kashiswari College is run from the said main building from 6.30 a.m. to 10.30 a. m. when the entire college building is at the disposal of the girls' section.

3. The petitioner who resides with his family at premises No. 25A. Ram Kanta Bose Street, Calcutta as a tenant of the said premises has alleged that the acquisition is not for any public purpose and unless an alternative accommodation is provided to him he cannot be evicted from the premises in question.

4. It has been submitted on behalf of the respondent for vacating the interim order that P.C. Borroah J. vacated the interim order and dismissed the writ application filed by another tenant of one of the other premises. Since in the said writ petition of the said tenant selfsame grounds were urged and since the said application was dismissed, this application is also liable to be dismissed, there being no tresh or additional ground. He has further submitted that excepting the premises now being occupied by the petitioner, other twopremises have since been vacated but in view of the interim order obtained by the petitioner the authorities cannot proceed even in respect of other two premises. Mr. P. K. Chatterjee, learned Advocate appearing for the applicant for vacating the interim order submits that on the facts and circumstances of this case the interim order should be vacated and the writ application be dismissed. He has further submitted that hardship or inconvenience of the writ petitioner by reason of the impugned acquisition proceeding is of no consequence and question of any discrimination under An. 14 of the Constitution in such a case does not and cannot arise.

5. On the other hand Mr. Pradip Gnash, learned advocate appearing for the writ petitioner has contended that the respondents cannot throw the petitioner in the streets on the ground of acquisition for alleged public purpose for the expansion of the college. The interim order has not prevented the respondents from acquiring the property but they shall do so after providing an alternative accommodation to the petitioner. He has also drawn my attention to the affidavit filed by the Principal of the college. In para. 6 of the said affidavit the Principal has inter alia, stated as follows :

'I state that the owners of the premises in question were offering their said properties for sale. Finding that it would be difficult to compete with outsiders in the bargain, Maharani Kasisawari College approached the Government for acquisition of the said premises so that the college could get them at reasonable prices'.

6. I have heard the submissions of the learned advocates appearing for the parties. The judgment if any, of P. C. Borooah J. has not been cited before me and as such I am unable to appreciate the reasons which perusaded his Lordship to vacate the interim order. The Court can take judicial notice of the fact that it is impossible to have an alternative accommodation at a reasonable rent by a tenant particularly when he has been residing in a house in North Calcutta for the last 40 years. It is true that expansion of the college is for the benefit of the public at large but at the same time the interest of the individual cannot altogether be ignored or brushed aside. If the owner of the premises would have sold the premises in question, then they would have sold with the tenantsand new purchasers could have taken recourse to the Premises Tenancy Act for ejectment of the tenants. The new purchaser could not have thrown the tenant out of the premises. In this case the college was prepared to purchase the residential houses with tenants but because the college allegedly would not be able to compete with the other purchasers, the college : authorities submitted a proposal that the property be acquired for the college so that other purchasers could not buy the property and the college may have to pay much lesser amount by way of consideration. This in my view is a factor to be taken into consideration. The owners of the properties were ready and willing to sell the premises with the tenants and the College Authorities were also willing to buy such premises but only for the purpose of reducing the financial burden that the mechanism of acquisition proceedings has been resorted to in this case. In the letter dated 23rd Sept. 1976 the College submitted a proposal for acquisition of premises Nos. 24B, 25A and 25G of Ram Kama Bose Street, Calcutta. It was, inter alia, stated in the said letter as follows :

'This being a congested area of the city, land and buildings are not normally available in the vicinity. The land situated in a distant place even if available, will be of little use for us as it will not be possible to control the same from the existing college. Besides, this being exclusive girls' college students are to be kept under constant vigilance for obvious reason. The above mentioned premises being very near to the existing building will facilitate urgently needed expansion of the college.'

7. For implementation of expansion programme, one should not have chosen a congested area of the city. The reasons given for acquisition of the premises are no reasons at all and are divorced from realities of life. Girl students of College now-a-days do not require any constant vigilance nor such constant vigilance is possible. Unless the teachers can impart value oriented education, no amount of vigilance can change the behaviour pattern of the students in general.

8. Thus, it cannot be equated with any other acquisition made for public purpose. It is not a case of establishment of a college for the girls there being no other girls' college in the vicinity. It is a case of expansion for introducinghonours in Philosophy and Sanskrit and foropening Science Stream (Bio-Science). Alitigation is pending in the Supreme Court inwhich the slum and pavement dwellers hadsought the Court's help against eviction by theBombay Municipal Corporation. In that caseinterpretation of Article 21 is involved. TheSupreme Court at the interlocutory stage inthat case, it is submitted, directed that no onecould be evicted unless alternativeaccommodation is provided. It should be thea vowed object of any democratic Governmentto give homes to the homeless and not to makea person homeless. Before any attempt is madeto forcibly evict a person from his hearth andhome through the mechanism of acquisitionproceeding, the Government should considerwhether such person has any other alternativeaccommodation or not and whether havingregard to financial capacity he is able to takeanother alternative accommodation or whethersimilar residential accommodation is availableelsewhere. The interest of the individual canno doubt be sacrificed and ignored for thebetterment of the society but this cannot be anabsolute doctrine. In the context of acutehousing problem in this Metropolitan City andthe exorbitant rent, a tenant who has beenoccupying a house at a very nominal rent ifasked to leave his hearth and home for thealleged purpose of expansion of a collegewithout providing him any alternativeaccommodation will be either homeless or aslum dweller. This can never be the object of ademocratic or socialistic State.

9. There is yet another aspect which has to be taken into consideration. A college in making expansion should not be allowed to take the nearby residential house because it suits the college. A college which has been established in the heart of the city encircled by the residential houses occupied by mostly middle class families cannot expect that for its expansion the residents have to vacate their dwelling places. The college should have selected a place where it can construct a building of its own for the purposes of its expansion. There are colleges in Calcutta whose buildings are old and dilapidated. Light and air are rare phenomenon. The rooms are small and overcrowded by large number of students. The minimum space meant for a student according to the guidelines of the University Grants Commission is not provided. It issometimes difficult to find out whether it is a college or bazaar. There is no academic atmosphere. There different colleges are located in one building as is the case here. In such a case if the college authorities adopt scheme for expansion of women's section they should have acquired a vacant land. A new college building can be built and expansion programme can be implemented. The University authorities should not sanction expansion programme of such a college unless the college can acquire a land for construction of a new building. Mere establishment of a college cannot serve public purpose, nor does its expansion by taking a few neighbouring residential buildings. The advancement of learning which is the avowed object of the University cannot be achieved by this process. If development of a college is a public purpose so also the provision for home to homeless.

10. In my Judgment the acquisition of a vacant land cannot be equated with acquisition of a dwelling house rendering the tenant and the residents homeless. This cannot be social justice. The existence of the person in occupation is at stake and grave injury is likely to result. I am, therefore, not inclined to vacate this interim order at this stage. The respondents shall provide the petitioner with some other accommodation preferably a flat in the Government Housing Scheme having regard to the financial capacity of the petitioner and the petitioner shall vacate within a reasonable time thereafter the premises in question. A balance is to be held fairly between the competing interests of individual and society. This interim order will be applicable in respect of premises No. 25A, Ram Kama Bose Street, Calcutta. Inasmuch as the tenants of the other two premises have already vacated, the interim order will stand vacated in respect of those two premises.

11. This order virtually disposes the writ application. The respondents are directed to proceed with the acquisition after complying with the direction contained in this judgment as regards providing an alternative accommodation to the writ petitioner.

12. The Rule is disposed of accordingly. There will, however, be no order as to costs.

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