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Dhone Gopal Mukherjee and ors. Vs. the Secretary, Land and Land Revenue Dept., Govt. of West Bengal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 615(w) of 1962
Judge
Reported inAIR1966Cal348
ActsDefence of India Rules, 1939 - Rule 75A; ;Requisitioning and Acquisition of Immovable Property Act, 1952 - Section 17; ;West Bengal Land Development and Planning Act, 1948 - Sections 4, 6 and 8; ;Constitution of India - Article 226
AppellantDhone Gopal Mukherjee and ors.
RespondentThe Secretary, Land and Land Revenue Dept., Govt. of West Bengal
Appellant AdvocateS.K. Acharya and ;Manas Nath Roy, Advs.
Respondent AdvocateBankim Chandra Dutt and ;Sushil Kumar Biswas, Advs.
DispositionPetition allowed
Cases ReferredNorwich Corporation v. Norwhich Electric Tramways
Excerpt:
- .....the petitioners to release the lands for their own use for their rubber factory the government of westbengal, by its letters of the 1st august, 1949 and the 9th february 1950, stated that the question of derequisitioning these lands was being actively considered by the government and that the land would be released as soon as an alternative site was available for the persons then occupying the lands (anuexure b). it appears from later correspondence that squatters had in the meantime occupied these lands and by their letter of the 31st august, 1951, the land and land revenue department of the government informed the petitioners that they had instructed the collector to apply before the competent authority appointed under the statute, enacted in 1951, for the eviction of unlawful.....
Judgment:
ORDER

D. Basu, J.

1. This petition under Article 226 is directed againstnotifications under Sections 4 and 6 of the West Bengal Land Development and Planning Act, 1948 (hereinafter referred to as 'the West Bengal Act') issued against the petitioners' lands in C. S. plots 639-642 and 694 of Mouza Rahara. and proceedings subsequent thereto.

2. Admittedly, these lands were, on the 21st of May, 1944, requisitioned by the Land Acquisition Collector, Respondent No. 5 under Rule 75A of the Rules framed under the Defence of India Act. 1939 as per annexure A. for providing accommodation to Mill workers who were dislodged by military personnel. Petitioners' case is that after the termination of World War II, the purpose for which the lands had been requisitioned ceased and, at the request of the petitioners to release the lands for their own use for their Rubber Factory the Government of WestBengal, by its letters of the 1st August, 1949 and the 9th February 1950, stated that the question of derequisitioning these lands was being actively considered by the Government and that the land would be released as soon as an alternative site was available for the persons then occupying the lands (Anuexure B). It appears from later correspondence that squatters had in the meantime occupied these lands and by their letter of the 31st August, 1951, the Land and Land Revenue Department of the Government informed the petitioners that they had instructed the Collector to apply before the Competent Authority appointed under the Statute, enacted in 1951, for the eviction of unlawful occupants from the Government premises, and this proceeding does not appear to have been disposed of since then.

3. On the 28th November, 1957, curiously, the petitioners wore advised by the Collector, 24 Parganas that,

'the Government of West Bengal is the proper authority to release the requisitioned property by evicting the refugees squatted thereon ...... Further development in this connectionmay he had from the Government'.

4. After continued demands and representations for derequisitioning the lands, the Refugee Relief and Rehabilitations Department of the Government of West Bengal, by their letter of the 19th April, 1955 requested the petitioners to let them know whether they were 'agreeable to dispose of the lands measuring 7.14 acres to Government at the rate prevailing in December, 1946' (Annexure II).

5. After the petitioners communicated their disapproval of the proposal, the Government issued the notification under Section 4 of the West Bengal Act on the 26th of April, 1956 (p. 38, Annexure I) stating that the disputed lands were required 'for the settlement of the immigrants who had migrated to West Bengal'.

6. The petitioners' case, in short, is that the proceedings for acquisition of the land under the West Bengal Act. while the lands were under requisition in exercise of the powers under the Defence of India Act, are illegal and mala fide.

7. The State of West Bengal, in its affidavit-in-opposition, states that the West Bengal Act has been properly applied since the present occupants of these lands arc displaced persons from Pakistan. In the separate affidavit filed on behalf of Respondents 4 and 5, it is stated, inter alia, that before the Inquiring Officer under Section 4A of the West Bengal Act, the Petitioners stated that they were willing to part with the disputed lands provided they were paid compensation at the rate of Rs. 600 per cottah.

8. The primary contention urged by Mr. Acharya on behalf of the petitioners is that since the initial order of requisition of 1944 (Annexure A) is still subsisting, it is not competent for the State Government to acquire the lands under the West Bengal Act. without first derequisitioning the lands and restoring them to the petitioners. In this contention, Mr. Acharva is fortified by the decision of the Supreme Court in Union of India v. Ram Kanwar : [1962]3SCR313 .

9. The disputed lands were requisitioned in exercise of the powers under Rule 75A of the Rules framed under the Defence of India Act (Annexure A). This requisition should have come to an end with the expiry of the Defence of India Act and the Rules made thereunder, but Section 3 of the Requisitioned Land (Continuance of Powers) Act, 1947, continued the requisitions made under the expired provisions, in these words,

'Notwithstanding the expiration of the Defence of India Act, 1939, and the rules made thereunder ..... all requisitioned lands shallcontinue to be subject to requisition until the expiry of this Act and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient:

Provided that the appropriate Government may at any time release from requisition any requisitioned land.'

10. This Act of 1947 was a temporary one and would have expired on the expiration of the period mentioned in S. 4 of the India (Central Government and Legislature) Act, 1946, as extended subsequently. Before the said period could expire, the Government of India, however, made the Requisitioning and Acquisition of Immovable Property Ordinance (III of 1952) which continued the requisition further. This Ordinance was later replaced by the Requisitioning and Acquisition of Immovable Property Act (30 of 1952) (hereinafter referred to as 'the Act of 1952'). Sub-section (1) of Section 24 of this Act repealed the requisitioned Land (Continuance of Powers) Act, 1947 and the Ordinance of 1952 but Sub-section (2) of that section continued the requisition, initially made under the Defence of India Rules as follows:

'For the removal of doubts, it is hereby declared that any property which immediately be fore such repeal was subject to requisition under the provisions of either of the said Act or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under Section 3 of this Act, and all the provisions of this Act shall apply accordingly.'

11. Section 6(1) of this Act provided for derequisitioning or 'release from requisition':

'6 (1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force:

Provided that where the purposes for which any requisitioned property was being used cease to exist the Central Government shall, unless the property is acquired under Section 7, release that property as soon as may be, from requisition'.

12. Admittedly, this power to release from requisition has not so far been exercised in respect of the disputed lands; so they are still under requisition.

13. It was contended on behalf of the Respondents that it is the Central Government who alone is competent to release from requisition. This is, however, not correct, as would appearfrom S. R. O. 888, dated the 9th May, 1952, by which the Central Government has, under Section 17 of the Act of 1952, directed that

'the powers exercisable by it by or under Section 6 of the said Act shall also be exercisable by the competent authority being an officer subordinate either to that Government or to the State Government.....'

14. In the instant case, the order of requisition of 1944 had been made by the Additional Land Acquisition Collector, as the Competent Authority empowered by the Central Government, in this behalf. Respondent No. 5 is, accordingly, competent to make the order of release from requisition as well. It is, therefore, wrong on the part of the Respondents to point out the Central Government to the petitioners for this purpose.

15. In Ram Kanwar's case : [1962]3SCR313 (ibid.) it has been held by the Supreme Court that the power to requisition under rule 75A of the Defence of India Rules, was conditioned by the four public purposes mentioned in that Rule, and that though the requisition was continued by the subsequent enactments referred to, the original purposes were never enlarged, so that as soon as the original purpose for which a property had been requisitioned under Rule 75A ceased to exist, it became 'obligatory for the Government to release the property', under Section 6 of the Act of 1952, and to restore possession of the property to its owner.

16. The petitioners' case that the original purpose for which the lands had been requisitioned, namely, the housing of Mill workers whose bustees had been occupied by military personnel, had ceased to exist with the termination of the war, is borne out by the correspondence of the Government at pages 24-25 of the Annexure. The Respondents could not immediately derequisition the property because refugees from East Pakistan and other squatters had, in the meantime, occupied the lands (vide Annexure p. 27-28). This is also corroborated by the fact that the Government approached the competent authority appointed under West Bengal Act XVI of 1951 for the eviction of the unlawful occupants and was ultimately led to apply the West Bengal Land Development and Planning Act for the purpose of acquiring the lands for the purpose of settling immigrants from East Pakistan. It is evident, without any doubt, that at least by the time the letter in Annexure B (page 24) had been written, the purpose for which the lands had been requisitioned in 1944 had ceased to exist, and it was incumbent on respondent No. 5 to make an order of release of the lands from requisition under Section 6 of the Act of 1952, and to restore possession of the lands to the petitioners before doing anything else, since the lands were not required to be acquired under the Act of 1952.

17. To this prayer to be restored to possession before proceeding under the West Bengal Act (as in prayer (a) of para 28) there is no answer in the affidavit of respondents 4 and 5 except that 'there is no legal bar to acquire such land (i.e., land already under requisition under the Defence of India Rules) under the Land Development andPlanning Act', to which plea, I shall advert presently.

18. The contention of the learned Additional Government Pleader that the Petitioners could not get relief by way of release from requisition and to be restored to possession without impleading the Central Government as a party does not stand if respondent No. 5, as I nave stated earlier, is competent to release the property from requisition.

19. Once it is held that Respondent No. 5 was under a legal duty to release the property from requisition and to restore it to the Petitioners at any point of time earlier than the application of the West Bengal Act to that property, Respondent No. 5 cannot be heard to say that he did not comply with his legal duty under one statute because there was another statutory power, provided for by another legislature and for another purpose, which could be used in respect of the same property. There is no doubt, in view of the decision of the Supreme Court in Ram Kanwar's case : [1962]3SCR313 (ibid.), that it was the mandatory duty of respondent No. 5 to make an order of release under Section 6 of the Act of 1952 and that he had no discretion in the matter, as soon as the purpose for which the lands had been requisitioned had ceased to exist. The pleas that are available to a public officer when mandamus is sought for in cases like this are well settled. I do not find any authority for the proposition that a public officer would be exonerated from performing his legal duties enjoyed by one statute simply because another statute may be applied against the same object, whether by that authority or any other. Even though the order under the former statute may be nullified by an act done under another statute a moment later, there is no excuse for non-compliance with the previous statute, before proceeding under the latter. Even the beneficial purpose of the latter statute would afford no excuse. Where a statute prescribes the manner in which a legal duty is to be performed, the statutory authority will be compelled to do it in that very manner and no other: vide R. v. Shoreditah Assessment Committee. (1910) 2 KB 859.

20. In cases like Guruswamy v. State of Mysore : [1955]1SCR305 and State of Assam v. Keshab : [1953]4SCR865 the Supreme Court has held that even the authority, who is empowered to make subordinate legislation, is not entitled to depart from them (unless they are discretionary) and to adopt another procedure, however beneficial the latter course may be.

21. If I am correct in my finding that the original purpose for which the requisition under Rule 75A of the Defence of India Rules ceased to exist at least in 1949-50 when the letters in Ann. B had been written by the Government of West Bengal, it was the legal duty of respondent No. 5 to make the order of derequisition immediately, and every moment since then that he retained the land without making such order, he was doing an illegal act. He could not have applied the West Bengal Development Act or any other law to save himself from that liability, for, to do that would constitute mala fides oran abuse of the power conferred by the latter statute.

22. It may, of course, be urged that the authority who has made the declarations under Sections 4 and 6 of the West Bengal Act is not respondent No. 5 but respondent No. 6, the State of West Bengal, but the position at law would not be different even then, for, no statute can be used for enabling a public official to commit an illegal act or to avoid his liability to do an act enjoined by another statute. It has been established since cases like Biddulph v. St. George's Hanover Square Vestry, (1863) 3 De G. J. and Sm 493 that a statutory power cannot be used for a purpose other than that for which the statute was enacted, and that its use for any other purpose makes the resultant act void on account of mala fides or abuse of power which is an instance of ultra vires. Improper motive or express malice is not necessary to constitute such mala fides, R. v. Halliday, (1917) AC 260, Ashutosh v. State of Delhi : AIR1953SC451 . In the words of the Lord Chancellor in Galloway v. Mayor of London, (1866) 1 HL 34(43):

'.....a principle . . - founded on thesoundest principles of justice .....is this, thatwhen persons embarking in great undertakings for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature lias invested them with extraordinary powers'.

23. The principle is no less applicable where the authority empowered by the Legislature is the Government itself or its officials.

24. Hence, even though the conditions for the application of the West Bengal Act, namely, the need for settlement of some displaced persons from Pakistan, might have been present in the instant case, it could not be so applied as to enable respondent No. 5 to avoid his legal duty to release the property from requisition which had arisen much earlier. It has been contended on behalf of the respondents that if the property were derequisitioned and the West Bengal Act had been applied the very next moment, the order of release from requisition would be a mere technicality or an idle formality for want of which the petitioners cannot be heard to complain. That is, however, not correct as would appear from Section 6(1) and Section 8(2)(b)(iv) of the Act of 1952. Consequent upon release from requisition, the owner is entitled to recover from the Government:

'damages (other than normal wear and tear) caused to the property during the period of requisition, including the expenses that may have to be incurred for restoring the property to the condition in which it was at the time of requisition'.

25. Throughout the correspondence on the record, the petitioners have complained to the Government that the disputed land was a garden and that 'the damage done to the garden' by the squatters has been 'enormous' (vide Ann. p.33, 34). It was urged by the learned Additional Government Pleader that in the present petition, the petitioners have not given any estimate of such damage or made any claim on that behalf. But the present proceeding is not one for claiming 'terminal compensation' after release of the property from requisition but for nullifying the proceedings under the West Bengal Act on the ground that that Act could not be applied unless the lands were first released from requisition. What benefit the petitioners would derive can be established only if the petitioners arc allowed to bring appropriate proceedings for claiming compensation after the order of release from requisition is actually made. It is sufficient for our present purpose to hold that the Act of 1952 gives substantial benefit following from an order of requisition from which (whatever be the actual amount) the petitioners would be deprived if the respondents are allowed to acquire the lands under the West Bengal Act, before the order of release from requisition is made.

26. It was next urged by Mr. Dutt, the learned Additional Government Pleader, that since any kind of property might be acquirerd there was no bar to the acquisition of the title left in the petitioners, subject to the order of requisition which only passes on the right of possession to the Requisitioning authority. This argument cannot, however, stand in view of Section 8(1), proviso (a) of the West Bengal Act. Apart from the fact that the professed object of the acquisition under this Act being the settlement of refugees, that object cannot be fulfilled unless the State of West Bengal gets possession of the lauds. Proviso (a) to Section 8(1) says that the title of the Government by a proceeding under this Act becomes complete only after possession is taken by the Government after a declaration under Section 6 is made. It was suggested by Mr. Dutt that once the title of the petitioners was acquired under the Act, the recovery of the right to possession of the property which was vested in the Central Government by virtue of the requisition was a mere matter of inter-departmental arrangement between the two Governments. Even this possibility cannot be imagined by a court of law since, if it be the duty of the Central Government to derequisition the property and to restore it to the possession of the petitioners, it would be an act of gross illegality on the part of the Central Government to pass on the property to the State Government and such an illegality cannot be presumed to support the impugned act of the State Government.

27. The most formidable argument advanced on behalf of the Respondents however is that it is the petitioners themselves who have induced the State Government to proceed under the West Bengal Act. But this plea. I find, is untenable either in law or in fact:

(a) On the point of law, neither estoppel nor waiver can be pleaded against a statute which imposes a positive duty upon a public officer in the general interests of the public. This was laid down by the Judicial Committee in Maritime Electric Co. Ltd. v. General Dairies Ltd. . In that case, it was observed that: 'it was the duty of each party to obey the law' and that, accordingly, one party cannot escape that duty by obtaining the consent of the other party. That was a case of claim to statutory compensation for a service rendered. The Judicial Committee observed that even an express contract could not have barred the statutory right of the claimant: 'It cannot be doubted that if the appellant, with every possible formality had purported to release their right to sue for the sums remaining due according to the schedules, such a release would be null and void.'

28. Hence, the plea of waiver, which is mere inference of an agreement to forego from conduct, cannot be placed higher.

29. There is no doubt that where the property of a private owner is expropriated permanently or even temporarily by the State, exercising its power of eminent domain, for the execution of a public purpose, the rights of the private owner must yield inasmuch as the interests of the general public override the narrower interests of the individual but this position subsists only so long as the property is required for that public purpose. As soon as that public purpose ceases to exist, the State, as the guardian also of the private rights of the individual under the general law of the land, is bound to restore the property to the private owner. This is the principle underlying the duty to release from requisition which is imposed by statute, namely, Section 6(1) of the Act of 1952. This duty cannot, therefore, be said to have been provided solely for the benefit of the private owner, of Norwich Corporation v. Norwhich Electric Tramways (1906) 2 KB 119 (124). It is a principle which the State itself must observe in the interests of maintaining justice, good order and security in the community under its Administration. I hold, therefore, that the petitioners could not exempt the Govt. or its officials from their statutory duty to release the property from requisition by any act of consent or waiver on their part.

(b) On the question of fact also, I find that there is no unequivocal conduct or statement on the part of the petitioners indicating that they were giving up their right to have the property released from requisition before the Respondents could proceed under any other law.

30. It should be noted, in this connection, that under Section 6(1) of the Act of 1952, it was the duty of the competent authority not only to release the property from requisition but also to restore the property to the possession of the displaced owner by evicting any squatters who may have occupied the property since requisition, owing to the default and negligence of those public officers whose duty it was to protect the property in the possession of the Government from unlawful occupants. But, the correspondence on the record amply shows that not only did the officers concerned not possess proper knowledge as to their duties but they drove the Petitioners From post to pillar, until they were exasperated.

31. Whatever statements the petitioners may have made must be read in the light of thisexasperation.

32. The Petitioners were informed, in November, 1952 that the Government bad moved the Competent Authority for eviction of the squatters and in December, 1953 they were told that the proceedings before the Competent Authority were still pending. In July, 1954 (Ann. pp. 33-34),--therefore, they were led to write to the Minister-in-charge of the Rehabilitation Department, direct, for relief, because they were subjected to injury for an indefinite period. In this letter, the relevant paragraph (p. 34) is as follows:

'Under the circumstances we shall be exceedingly thankful to you if you will kindly let us know whether it is possible to evict these refugees from the above land immediately and restore free and vacant possession to us. If it is not possible to restore possession of the garden after eviction of the refugees, we would request you to kindly acquire the land after payment of proper compensation to us'.

33. No doubt, it is in the form of a request. But we cannot overlook the fact that it was a layman's letter written in exasperation. Further, the request to acquire was conditioned upon the failure of the other alternative, namely, 'if it is impossible to restore possession after eviction of the refugees'. In order to apply the second alternative, the Opposite Parties Have to plead the 'impossibility' of evicting the refugees. Respondent No. 5 could not be allowed to plead this inability in view of his statutory duty under Section 6 of the Act of 1952. Nor could the State of West Bengal be heard to take this plea when they had enacted a specific statute for this purpose, namely, Act XVI of 1951 and proceedings before the Competent Authority under that Act were duly initiated. Above all, in the statement reproduced above, the petitioners did not give their consent to the property being acquired in terms of the West Bengal Land Development Act, 1952. They merely suggested that if 'proper compensation' was given to them, they might be willing to part with the land, and in a subsequent letter of the 20th July, 1954, the petitioners explained that they were ready to accept @ Rs, 600 per kottah', which was the prevailing market rate. That there was no misunderstanding on the part of the Government as a result of the foregoing statement is evident From the Government's query, on the 18th April, 1955 (Ann. p. 30) whether the petitioners were agreeable to dispose of the lands 'to Government at the rate prevailing in December, 1946.' When, in their reply of the 5th May, 1955, the petitioners communicated their unwillingness to part with the land at the rate prevailing in December, 1946, and reiterated their demand at Rs. 600 per kottah, it could hardly be contended by the Government thereafter that the petitioners had ever consented to the Government's resorting to proceedings under the West Bengal Act, under which compensation was payable at a rate not exceeding the market value of the land on the 31st December, 1946 (vide Section 8(1), proviso (b)). The statement in the letter of the 9th July, 1954 cannot, therefore, be used by the opposite parties as constituting estoppel or waiver as against the impugned proceedings. It may be noted, in this connection, that in a subsequent letter of the 14th August, 1956 (Ann. p. 41), the petitioners made it clear that 'they never agreed to the acquisition of the land at 1946 rate under the West Bengal Land Development and Planning Act'. I do not find anything in the instant petition to indicate anything to the contrary. Having regard to all the circumstances, therefore, I am of the opinion that Respondent No. 5 should he commanded to make the order of release from requisition and to restore possession to the petitioners as required by S. 6 of the Act of 1952, and the proceedings under the West Bengal Acts should be annulled. I am not unmindful of the fact that it would be open to the State of West I Bengal to proceed afresh under the West Bengal Act, after the order of release from requisition is made, if the need for settling immigrants from East Pakistan continues. But even then the writ to be issued by this Court cannot be said to be infructuous or meaningless, for, the petitioners will not only be entitled, as stated before, to claim terminal compensation pursuant to the order of release from requisition but would also be entitled to claim compensation for use and occupation under the Act of 1952 for the entire period until an order of release from requisition is duly made under Section 6(1).

34. The petition must, therefore, succeed.The Rule is made absolute, but in the circumstances of the case, I would not make any orderas to costs. Let Respondent No. 5 be directed tomake an order of release from requisition and torestore possession to the petitioners. Let thenotifications under Sections 4 and 6 of the WestBengal Land Development and Planning Act andproceedings subsequent thereto in respect of thedisputed lands be cancelled and the respondentsbe directed not to give effect to them.


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