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12, I.C. Bose Road Tenants' Association Vs. Collector of Howrah and Ors. (07.09.1977 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. No. 1760 of 1977
Judge
Reported inAIR1977Cal437,(1977)2CompLJ338(Cal),82CWN33
ActsConstitution of India - Article 226; ;Land Acquisition Act, 1894 - Sections 4 and 6; ;West Bengal Societies Registration Act, 1961 - Section 19(1); ;Land Acquisition (Amendment) Act, 1898 - Section 6(1); ;General Clauses Act, 1897 - Section 3(31); ;Calcutta Metropolitan Development Authority Act, 1972; ;Land Acquisition Rules - Rule 18
Appellant12, I.C. Bose Road Tenants' Association
RespondentCollector of Howrah and Ors.
Appellant AdvocateK.K. Moitra and ;Adyanath Ghosh, Advs.
Respondent AdvocateSusul Kr. Biswas and ;Suprokash Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredValjibhai Muljibhai v. State of Bombay
Excerpt:
- .....d. a.3. it was contended by the appellant in the writ petition that the c. m. d.a. was neither a local authority nor a company, noi the money that would be spent by it for the acquisition of the lands comprised in the said premises formed part of the public revenues of the state government as contemplated by the second proviso to section 6(2) of the said act and accordingly, the acquisition sought to be made by the declaration under section 6 was illegal, inoperative and void. at the hearing of the rule nisi, two preliminary objections were taken on behalf of the respondents, namely, that the appellant had no locus standi to maintain a writ petition challenging the declaration under section 6 and that a majority of ths members of the appellant having filed claims under section 9 of the.....
Judgment:

M.M. Dutt, J.

1. This appeal is directed against the judgment of M. N. Roy J. whereby the Rule Nisi obtained by the appellant on its application under Article 226 of the Constitution was discharged.

2. The appellant who is described as '12, I. C. Bose Road, Tenants' Association' challenged a declaration under Section 6 of the Land Acquisition Act, 1894 which was preceded by a notification under Section 4 of the said Act. The notification under Section 4 was published on Dec. 2, 1974. It was inter alia stated therein that the lands comprised in the premises Nos. 12 and 16. I. C. Bose Road were likely to be nreded for public purpose, namely, for the construction of the northern approach road in connection with the re-construction of the Buckland Bridge at Howrah at the expenses of the Calcutta Metropolitan Development Authority (hereinafter referred to as the C. M. D. A.). After hearing the objections filed by the interested persons including the tenants of the said premises under Section 5-A of the said Act. the declaration under Section 6 was published on December 29, 1975. In the declaration also it was stated that the acquisition would be made at the expenses of the C. m. D. A.

3. It was contended by the appellant in the writ petition that the C. M. D.A. was neither a local authority nor a company, noi the money that would be spent by it for the acquisition of the lands comprised in the said premises formed part of the public revenues of the State Government as contemplated by the second proviso to Section 6(2) of the said Act and accordingly, the acquisition sought to be made by the declaration under Section 6 was illegal, inoperative and void. At the hearing of the Rule Nisi, two preliminary objections were taken on behalf of the respondents, namely, that the appellant had no locus standi to maintain a writ petition challenging the declaration under Section 6 and that a majority of ths members of the appellant having filed claims under Section 9 of the said Act, they had waived their right to call in question the legality of the acquisition. The learned Judge upheld the preliminary objections of the respondents and held that the appellant had no locus standi to maintain a writ petition and that as most of its members filed claims for compensation under Section 9, they had forfeited their right to challenge the acquisition. He also held that the C. M. D. A. was a local authority within the meaning of the second proviso to Section 6(2) of the said Act read with Section 3(31) of the General Clauses Act. Upon the said findings, he discharged the Rule and hence this appeal.

4. We may first of all consider the locus standi of the appellant to maintain a writ petition. After the notification under Section 4 was published on December 2, 1974, the tenants of the said premises formed themselves into an Association which is the appellant before us. The appellant has been registered under the West Bengal Societies Registration Act, 1961 and its registered office is at 12, I. C. Bose Road Howrah. Article 226 provides for remedy for the infringement of a fundamental or legal right of a person. The condition precedent to the granting of any relief under Article 226 is the existence of a fundamental or legal right of a person and the infringement of such right. The right which is the foundation of an application under Article 226 is a personal and individual right. The legal right may be a statutory right or a right recognised by the law. The principles of law in this regard have been recently restated by the Supreme Court in Mani Subrat Jain v. State of Haryana, : [1977]2SCR361 . In that case, the Supreme Court has observed that it is elementary that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. In the instant case, the persons who will be affected by the acquisition of the lands comprised in the said premises are the tenants occupying the same besides the owner thereof, but surely not the appellant. The appellant has no legal right and therefore there is no question of the infringement of a legal right. The appellant has no interest in the land and premises sought to be acquired and is not, therefore, a person aggrieved. The learned Judge has rightly 'held that the appellant has no locus standi. The deci-sion of the Supreme Court in Union of India v. Jyoti Chit Fund and Finance, : (1976)IILLJ69SC has been relied on by the appellant. In that case, it was held that Government was a trustee in regard to the provident fund dues, pensions and other compulsory deposits till they were paid to the Government servant and the Government was entitled to maintain an objection to the attachment made of such dues, pensions, deposits, etc., under Section 60 of the Code of Civil Procedure. In our view, that case has no bearing on the question of locus standi of the appellant to maintain a writ petition.

5. Apart from what has been stated above, the appellant has another difficulty in regard to its locus standi. It has been already noticed that the appellant is a registered Society under the West Bengal Societies Registration Act, 1961. Under Sub-section (1) of Section 19 of the said Act every Society may sue or may be sued in the name of the President, the Secretary, or any office-bearer authorised by the Governing Body in this behalf. In view of Section 19(1). the Society itself has no locus standi to maintain an action and consequently a writ petition. The writ petition was filed by the appellant as the petitioner and not by the President, Secretary or any office-bearer authorised by the Governing Body of the appellant. The appeal also has been filed by the appellant in its own name. On this ground also the writ petition is not maintainable, though this point has not been taken by the respondents either before the learned trial Judge or before us.

6. So far as the other preliminary objection against the maintainability of the writ petition founded on the forfeiture or waiver of the rights of the members of the appellant by asking for payment of compensation is concerned, it may be pointed out that there are some conflicting decisions of this Court on the point. We do not think that it is necessary for . us to decide the same, for it has been already held by us on other grounds that the appellant had no locus standi to ask for any relief under Article 226 of the Constitution.

7. In spite of the above finding as to absence of locus standi of the appellant we propose to consider the contention of the appellant that the C. M. D. A. is not a local authority and accordingly, the declaration under Section 6(1) is illegal and inoperative. The second proviso to Section 6(1) provides as follows :

'Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some funds controlled of managed by a local authority.'

Under the proviso, therefore, a declaration ran only be made if the compensation is paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. It is not disputed that the C. M. D. A. is not a company and the money that may be paid by it on account of compensation does not form part of the public revenues. Unless, therefore, the C. M. D. A. is a local authority the declaration under Section 6(1) will not be a valid one. The term 'local authority' has not been defined in the Land Acquisition Act, but it has been defined in Section 3(31) of the General Clauses Act which is as follows :

'(31). The 'local authority' shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.' There can be no doubt that the C. M. D. A. is an authority and comes within the expression 'other authority' under Section 3(31). In interpreting Article 12 of the Constitution. the Supreme Court in Sukhdey Singh v. Bhagatram, : (1975)ILLJ399SC observed that the expression 'other authorities' in Article 12 was wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India. Further it was observed that the expression 'other authorities' would include all constitutional or statutory authorities on whom powers were conferred by law. It is also not disputed by the appellant that the C. M. D. A. is an authority or 'other authority' within the meaning of Section 3(31). It has, however, been strenuously urged on behalf of the appellant that the C. M. D. A. is not legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund. It is also argued that the fund in the hands of the C. M. D. A. is not a local fund. In support of its contention that the C. M. D. A. is not a local authority, strong reliance has been placed on behalf of the appellant on a decision of the Supreme Court in Valjibhai Muljibhai v. State of Bombay, : [1964]3SCR686 . In that case, the question that came up for consideration was whether the Bombay State Transport Corporation was a local authority within the meaning of the second proviso to Section 6(1) of the Land Acquisition Act read with Section 3(31) of the General Clauses Act. Section 29 of the Bombay State Road Transport Act, 1950 provides that the corporation shall for all purposes be deemed to be a local authority. It was held by the Supreme Court that the Bombay State Transport Corporation was a company and not a local authority in spite of the provision of Section 29. As the Bombay Act did not receive the President's assent it could not override the definition of 'local authority' as contained in Section 3(31) of the General Clauses Act. It was observed by the Supreme Court as follows (at p. 1894) ; 'It will be clear from the definition that unless it is shown that the State Transport Corporation is an 'authority' and is legally entitled to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney General that the Corporation was furnished with funds by the Government for commencing for its business; but even if that were so, it is difficult to appreciate how that would make the funds of the Corporation local funds.'

Relying on the said observation of the Supreme Court, it has been urged on behalf of the appellant that the fund of the C. M. D. A. does not constitute a local fund.

8. The C. M. D. A. is a statutory authority and has been created by the Calcutta Metropolitan Development Authority Act, 1972 which is an Act to provide for the establishment of an Authority for the formulation and execution of plans for the development of the Calcutta Metropolitan Area, for the co-ordination and supervision of the execution of such plans and for matters connected therewith or incidental thereto. Under the Act of 1972, the C. M. D. A. is to act within an area as described in the schedule of the Calcutta Metropolitan Planning Area (Use and Development of Land) Control Act, 1965. Under Section 3(2) of the 1972 Act, the C. M. D. A. is a body corporate with perpetual succession and a common seal with power to acquire, hold and dispose of property, and to contract,' and may sue and be sued in its name. Under Section 6 it may with the previous approval of the State Government borrow any money for carrying out the purposes of the Act or for servicing any loan obtained by it. Section 7 provides that there shall be a fund for the C. M. D. A. to which shall be credited such monies as may be paid to it by the State Government under the Taxes of Entry of Goods into Calcutta Metropolitan Area Act, 1972, and all monies borrowed by the C. M. D. A. and such other monies as may be paid to it by the State Government or any other authority or agency, Section 8 provides for sinking fund of the C. M. D. A. Under Clause (c) of Section 15, it will be responsible for the supervision of the execution of any project for the development of any area within the Calcutta Metropolitan area, the expenses of the whole or any part of which are met from its fund. The C. M. D. A- is therefore, a statutory authority which has power to act within a specified area for the development of that area. Under the statute by which it has been created it is legally entitled to the control or management of its fund. In our view, if a statutory authority which has power to act within a specific or local area for the development of that area, which is one of the governmental functions ordinarily entrusted to a municipality or a corporation by a statute, with power to control and manage its own fund, such fund must be held to be a local fund within the meaning of Section 3(31) of the General Clauses Act. In Valjibhai's case referred to above, the Supreme Court found that the said transport corporation was not an authority within the meaning of Section 3(31) and them vas no material before the Supreme Court to show that the fund of the corporation was a local fund. In our view, the said decision of the Supreme Court does not helo the contention of the appellant. In the view which we take, there can be no doubt that the fund in the hands of the C. M. D. A. is a local fund within the meaning of Section 3(31) of the General Clauses Act and the C. M. D. A. is a local authority. The learned Judge, in our opinion, has rightly overruled the contention of the appellant that the C. M. D. A. was not a local authority.

9. Lastly, it is contended on behalf of the appellant that the respondents are to provide the , members of the appellant with alternative accommodation We are afraid, there is no provision in the Land Acquisition Act in regard to alternative accommodation. Reliance has been placed on behalf of the appellant on Section 31(3) of the Land Acquisition Act and Rule 18 of the Rules framed thereunder in support of its contention for alternative accommodation. In our opinion, neither Section 31(3) nor Rule 18 can, by any stretch of imagination, be said to provide for alternative accommodation in cases of acquisitions under the Land Acquisition Act as contended on behalf of the appellant. No other point has been urged on behalf of the appellant.

10. For the reasons aforesaid, the judgment of the learned Judge is affirmed and this appeal is'dismissed, but in view of the facts and circumstances of the case, there will be no order for costs.

Sharma, J.

I agree.


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