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Sudhangshu Sekhar Maity and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 177 of 1972
Judge
Reported inAIR1973Cal475,77CWN706
ActsLand Acquisition Act, 1894 - Sections 4 and 6
AppellantSudhangshu Sekhar Maity and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateKalipada Sinha and ;Parimal Das, Advs.
Respondent AdvocateBankim Chandra Dutt, ;D.K. Chowdhury and ;Suprakash Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredIn Somawanti v. State of Punj.
Excerpt:
- .....challenging certain acquisitions of land in the district of midna-pore for purposes of the haldia dock. the facts, briefly, are that on the 5th may, 1959, the government of west bengal issued a notification under section 4 of the land acquisition act, 1894, in respect of lands in 68 villages in the district of midnapore 'likely to be needed for a public purpose, viz., for the establishment of a subsidiary port at the mouth of haldia river'. by this notification the engineers of the commissioners for the port of calcutta and certain other officers were authorised to enter upon and survey lands and to do all other works required for the purpose of execution of the work.3. this notification under section 4 dated the 5th may, 1959, was not followed by any declaration under section 6;.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This is an appeal against the judgment and order of A.K. Sen, J., dated the 14th February, : AIR1972Cal320 .

2. The appellants are 61 in number. They made an application under Article 226 of the Constitution challenging certain acquisitions of land in the district of Midna-pore for purposes of the Haldia Dock. The facts, briefly, are that on the 5th May, 1959, the Government of West Bengal issued a notification under Section 4 of the Land Acquisition Act, 1894, in respect of lands in 68 villages in the district of Midnapore 'likely to be needed for a public purpose, viz., for the establishment of a subsidiary Port at the mouth of Haldia River'. By this notification the Engineers of the Commissioners for the Port of Calcutta and certain other officers were authorised to enter upon and survey lands and to do all other works required for the purpose of execution of the work.

3. This notification under Section 4 dated the 5th May, 1959, was not followed by any declaration under Section 6; but, on the 26th August, 1957, two other notifications were issued, These are notifications Nos. 13988 L. A. (P. W.) and 13991 L. A. (P. W.). The first notification relates to 101.42 acres and the second one to 89.75 acres. The cadastral survey plots numbers have been set out in the schedules to these two notifications. It was stated that land covered by these notifications is 'likely to be needed for a public purpose, namely, for the establishment of Haldia Dock'. In November-December, 1967, notices were issued inviting objections under Section 5-A of the Land Acquisition Act. On the 14th December, 1967, 211 persons of the village of Hatiberia filed objections under Section 5-A. In May and June, 1968, enquiries on the objections were held. The petitioners herein allege that they asked for certified copies of reports of enquiry but these reports were not made available to them. Thereafter, on the 12th September, 1968, 103 persons gave a lawyer's notice demanding justice before they could apply to this Court under Article 226 of the Constitution. The application, however, was made not by 103 persons but only 61 of them on the 17th November, 1968. The Rule was issued on the 9th May, 1969, but before the issue of the Rule, on the 26th December, 1968, declarations under Section 6 of the Land Acquisition Act 1894, were published in the Calcutta Gazette. The declarations were dated the 20th November, 1968, numbered 15425 L. A. (P. W.) and the 25th November, 1968, numbered 15824 L. A. (P. W.).

4. It would be relevant at this stage to refer to the provisions of sub-section (3) of Section 6 of the Land Acquisition Act, 1894, in order to appreciate the effects of these declarations. Sub-section (3) of Section 6 says:

'The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.'

In Somawanti v. State of Punj., 1963 (1) SCA 548 at pages 566 to 568 the Supreme Court considered the provisions of Section 6(3) of the Land Acquisition Act and proceeded to observe:

'.....whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the -State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final.'

5. In the instant case, the declarations under Section 6 have been made. These declarations provide conclusive evidence of the fact that the State Government was satisfied that the land was needed for a public purpose. But on behalf of the appellants it has been contended before us that the exercise of power under Section 6 in the instant case has been a colourable one. In support of this contention it is pointed out that both in the notifications under Section 4 and in the declarations under Section 6 the public purpose for which the land was proposed to be acquired was stated. The purpose was 'the establishment of Haldia Dock'. Our attention was drawn to paragraphs 6 and 7 of the affidavit-in-reply of Amulya Kumar Khatua, an employee of the Commissioners for the Port of Calcutta, affirmed on the 1st December, 1971. In paragraph 7 Amulya Kumar Khatua has said:

'* * * * that the establishment of Haldia Dock is a comprehensive subject and with which many other purposes are allied or incidental to, for the establishment and functioning of the dock quite a large area of land measuring 101.42 acres is required in this respect. The purposes incidental to or allied with the main purpose are (i) constructions of Railway, (ii) establishment of factories, (iii) storage houses, (iv) installation of electricity, (v) establishment of offices of State and Central Government and other industries, (vi) Hospital, (vii) Quarters for the staff, (viii) Internal road, (ix) Port of township, (x) Oil Refinery, (xi) Fertilizer etc., (xii) Sewage and (xiii) Rehabilitation etc.'

It is urged on behalf of the appellants that what has been described in this paragraph as allied or incidental purposes are in reality collateral purposes, particularly, purposes like quarters for the staff, rehabilitation etc., and since land was sought to be acquired for these collateral purposes under the garb of establishment of a dock the notifications under Section 4 and the declarations under Section 6 should be set aside.

6. We have gone through the relevant papers and affidavits and it seems to us that the dominant purpose for which the acquisition proceedings were started was the establishment of the Haldia Dock. It is to be remembered that the proposal was for setting up of a dock in an undeveloped area. The dock for its subsistence has necessarily to rely on a number of other activities and undertakings for which also lands would be required and these activities and undertakings can justly be described to be purposes 'allied or incidental to' the establishment of the dock. It is quite true that the expression 'Haldia Project or Haldia Port' would have been happier than 'the establishment of Haldia Dock'. But the word 'Dock' has got to be understood, on the facts of this case, in a proper context. In Halsbury's Laws of England, Third Edition, Volume 35 at page 806, Article 1250, the meaning of 'Dock' has been stated as:

'an artificial enclosure, connected with a harbour or a river, provided for the reception of vessels, and is generally shut off from the harbour or river by gates for regulating the inflow and outflow of water. A dock may be a dry or graving dock, that is, one which is used for the inspection and repair of vessels, or a wet dock, which is used for loading and unloading them. A dock may include a lock leading from it to a river.'

In the earlier Article, namely, Article 1249 it has also been stated that:

' * * * * until its limits are defined and regulations made for its conservancy, by Order in Council, it is subject to the general law as to ports and harbours. * * * *'

7. Broadly speaking, therefore, a dock is an enclosure used for the purpose of either repairing vessels or for loading or unloading of vessels. On the facts and in the circumstances of the present case, we have to read the expression 'establishment of Haldia Dock' to mean the establishment of a dock which would be used more or less for the same purposes as a small or subsidiary port is used. And since this project was being installed in an undeveloped territory, various other ancillary establishments had also to be set up to keep the dock running in efficient order. In these circumstances, it seems to us that the notifications under Section 4 and the declarations under Section 6 cannot be interfered with on the ground that acquisition was being made for collateral purposes.

8. It was also urged before us that some of the lands acquired under the notifications and declarations challenged herein, had been made over to different companies for setting up petrol pumps, oil depots and manufacture of fertilizers etc. In other words, instead of acquiring these lands under Part VII of the Land Acquisition Act which involved payment of higher compensation, an attempt was being made to acquire them for the pretended purpose of establishment of a dock. We are not inclined to uphold this contention. The records before us lead us to conclude that the dominant purpose of acquisition was the establishment of the Haldia Dock and the lands which were given to other companies were so allotted for the sole purpose of maintenance and preservation of the dock itself or to facilitate its smooth working.

9. Counsel for the respondents submitted before us that the petition suffers from vagueness and is also bad for misjoinder of parties and causes of action. As we are of opinion, on merits, that the notifications and declarations mentioned above ought to be sustained, we do not propose to deal with these technical points.

10. In the result, this appeal is dismissed. There will be no order as to costs. The cross-objection is allowed to the extent indicated in the judgment without any order as to costs.

Sabyasachi Mukharji, J.

11. I agree.


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