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The Commissioners for the Port of Calcutta Vs. PulIn Behari Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 674 of 1971
Judge
Reported inAIR1973Cal537,77CWN207
ActsCalcutta Port Act, 1890 - Sections 35(8), 58 and 58(1)
AppellantThe Commissioners for the Port of Calcutta
RespondentPulIn Behari Mondal and ors.
Appellant AdvocateBankim Chandra Dutt and ;Nerode Behari Roy, Advs.
Respondent AdvocateS.D. Banerjee, ;Partha Mukharji, ;S. Samanta and ;S.C. Bose, Advs.
DispositionAppeal allowed
Cases ReferredPrasad v. U. P. Government.
Excerpt:
- .....arises, was made absolute.2. the state government issued a notification under section 4 of the land acquisition act, being notification no. 12548 l. a. (p. w.) dated july 28, 1967 in respect of several plots of land belonging to different persons and measuring 26.15 acres. the land of the respondents nos. 1 to 15 who were the petitioners in the rule out of which this appeal arises, has also been included in the notification. it is stated in the notification that the said 26.15 acres of land is likely to be needed for a public purpose, namely, for the establishment of haldia dock at the expenses of the commissioners for the port of calcutta.3. the respondents and other groups of persons challenged the legality and validity of the notification by separate petitions under article 226 of.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the Commissioners for the Port of Calcutta and it is directed against an order dated October 3, 1969 of D. Basu, J. By the said order Civil Rule No. 2204(W) of 1967 out of which this appeal arises, was made absolute.

2. The State Government issued a notification under Section 4 of the Land Acquisition Act, being notification No. 12548 L. A. (P. W.) dated July 28, 1967 in respect of several plots of land belonging to different persons and measuring 26.15 acres. The land of the respondents Nos. 1 to 15 who were the petitioners in the Rule out of which this appeal arises, has also been included in the notification. It is stated in the notification that the said 26.15 acres of land is likely to be needed for a public purpose, namely, for the establishment of Haldia Dock at the expenses of the Commissioners for the Port of Calcutta.

3. The respondents and other groups of persons challenged the legality and validity of the notification by separate petitions under Article 226 of the Constitution of India, whereupon a number of Rules were issued on the said petitions including the said Civil Rule No. 2204(W) of 1967. It appears from the judgment of D. Basu, J. that at the hearing of the Rules the following points were urged on behalf of the respondents and the petitioners in different Rules :-

(I) Each of the petitioners whose lands are sought to be acquired under the impugned notification, personally cultivates his land and that the quantity in possession of each being less than the ceiling laid down in the West Bengal Estates Acquisition Ac'. 1953 such land cannot be acquired unless the law relating to the acquisition of such land provides for payment of compensation at a rate which shall not be less than the market value thereof as provided for in the proviso to Article 31-A(1) of the Constitution.

(II) There were certain irregularities in the matter of hearing objections under Section 5-A(2) of the Land Acquisition Act which vitiated the Acquisition proceedings.

(III) The impugned notification is invalid in the absence of a declaration by the Central Government as required to be made under Section 58(1) of the Calcutta Port Act, 1890.

(IV) The acquisition of land for a Dock is a purpose of the Union and that the Slate Government is not competent to acquire ihe land on behalf of the Union.

4. D. Basu, J. overruled all the points excepting point No, 3 namely, that the notification is invalid in the absence of a declaration by the Central Government under Section 58 (1) of the Calcutta Port Act. Section 58 provides as follows :-

'58 (I) When any land or building is required for the purposes of this Act. the Central Government may declare that the land or building is required for a public purpose and may cause proceedings to be taken for obtaining possession of the same for the Central Government and for determining the compensation to be paid to the parties interested, according to any law in force for the acquisition of land for public purposes.

(2) On payment by the Commissioners of the compensation payable under such law, and of the charges reasonably incurred by the Collector in respect of proceedings thereunder, such land or building shall vest in them for the purposes of this Act.'

5. D. Basu, J. was of the view that without a declaration by the Central Government under Section 58 (1) acquisition of land by the State Government for the Calcutta Port under the provisions of the Land Acquisition Act would be illegal. The respondents relied on a delegation of the power of the Central Government under Article 258(I) of the Constitution under which the President of India has entrusted the Government of West Bengal with their consent, the functions of the Central Government under the Land Acaquition Act in relation to the acquisition of land for the purpose of the Union. D. Basu, J. however, held that the delegation of the power under the Land Acquisition Ad could not obviate the need for a declaration to be made by the Central Government before the Land Acquisition Act could be brought in at all and that the Land Acquisition Act being a general enactment and the Calcutta Port Act being a special enactment, the latter would prevail in case of any inconsistency.

6. It was contended or behalf of the appellants that Haldia was outside the limits of the Port of Calcutta but the establishment of the Dock at Haldia was for the purposes of the Calcutta Port Act and that accordingly the construction of a Dock, al Haldia would come within the purview of clause (8) of Section 35. It was alternatively contended on behalf of the appellants that it was outside the purposes of the Act and the State Government was entitled to acquire the lands for a public purpose, namely, the establishment of a Dock at Haldia. These two contentions have been overruled by D. Basu, J. on the following grounds:--

'(a) If it be held that the proposed acqrositien is for the purposes of the Calcutta Port Act, the first part of Section 58 (1) bas not been complied with.

(b) If it be held that it is outside the purposes of the Act then it would be outside the jurisdiction of the Commissioners to provide for the expenses of the acquisition, in which case, the Court cannot uphold such an ultra vires Act on the part of the statutory body of Commissioners.'

7. It has been further held by D. Basu. J. that Haldia is outside the limits of the Calcutta Port and that the proposed construction of a Dock at Haldia does not come within the purview of clause (8) of Section 35. On the aforesaid findings, the impugned notification under Section 4 of the Land Acquisition Act has been struck down by D. Basu. J, as illegal and invalid. Hence, this appeal by the Port Commissioners

8. First of all, it is necessary for us to consider whether Haldia is within the limits of the Calcutta Port and whether the proposed construction of a Dock at Haldia is for the purposes of the Act. D. Basu. J. has held that Haldia is neither within the limits of the Calcutta Port nor is the construction of a Dock at Haldia for the purposes of the Act. Mr. Dutt, learned counsel appearing for the appellants faintly contended that Haldia is within the limits of the Calcutta Port. In our opinion, in view of the statements made in paragraphs 10 and 12 of the affidavit filed on behatf of the appellants, it is not open for them to contend that Haldia is within the limits of the Calcutta Port. We concur in the finding of D. Basu, J. that Haldia is outside the limits of the Port of Calcutta. Mr. Dutt has however, submitted that even assumine that Haldia is outside the limits of the Port of Calcutta the Commissioners are entitled to construct the Dock at Haldia. In support of his contention Mr. Dutt has strongly relied on clause (8t of Section 35. Section 35 is as follows :--

'35. The works to be constructed and carried out by Commissioners under the provisions of this Act may include-

(1) docks, wharves, quays, stages, jellies and piers, within the Port, with all necessary and convenient arches, drains, landing-places, shelters for passengers, stairs, fences and approaches; and quarters and buildings necessary for the residence of the officers employed therefor;

(2) railways;

(3) warehouses and sheds, with all necessary appliances for receiving and storing goods landed or to be shipped or carried and places suitable for the sampling and selling of such goods;

(4) laying down moorings for carrying out the purposes of this Act; and the erection of cranes, scales, and all other necessary means and appliances for loading and unloading vessels;

(5) reclaiming, enclosing and raising any part of the river bank or the river bed within the Port, which may be necessary for the execution of the works authorized by this Act or otherwise for the purposes of this Act;

(6) the construction and application of dredgers and other machines for clearing, deepening and improving the river bed within the Port;

(7) the building of steam-vessels required for the purposes of towing vessels in Port;

(7a) the building of vessels for the carrying of passengers and their personal effects within, or partly within and partly without, the limits of the Port;

(8) the construction of such works without the limits of the Port as shall be necessary for the protection of works executed under this Act; and all such other works and appliances as may, in the opinion of the Commissioners in meeting, be necessary for carrying out the purposes of this Act;

(9) the sinking of tube wells and the equipment maintenance and use of boats, barges and other appliances for the purpose of the supply of water to shipping at the Port.'

The first part of clause (8) applies only where the construction of any work without the limits of the Port is necessary for the protection of works executed under the Act. There is nothing on record to show that the establishment of a Dock at Haldia is necesgaly for the protection of works executed under the Act. Mr. Banerjee, learned counsel appearing for the respondents Nos. 1 to 15 has therefore, rightly contended that the first part of clause (8) does not authorise the Commissioners to construct a Dock at Haldia. The question, however, is whether the second part of clause (8) gives an authority to the Commissioners to construct a Dock at Haldia. D. Ban, J. has observed that the second part of clause (8) is resiouary in nature and it refers to works within the Port of Calcutta and not outside the limits of the Port for otherwise, a separate provision in the first part, dealing with works outside in Port would have been unmeaning and unnecessary. It is apparent from the opening words of Section 35 that the section is not exhaustive. It is not possible to enumerate all types of works which may be necessary to be carried out for the purposes of the Act. It is true that the first part of clause (8) uses the expression 'without the limits of the Port' which is absent in the second part. This, however, does not mean that the works contemplated by the second part of clause (R) have to be carried out within the limits of the Port. In our view, both the parts of clause (8) should be read conjunctively and not disjunctively. If the Commissioners think that a particular work has to be carried out beyond the limits of the Calcutta Port for the purposes of the Act it will be unreasonable to hold that because such a work is not for the protection of works executed under the Act, the Commissioners will not have the authority to carry out the purposes of the Act by execution of the work beyond the limits of the Calcutta Port. Further, the second part of clause (8) which is residuary in nature be interpreted as contemplating execution of works within the limits of the Port, in that case it would not have been placed under clause (8) along with the first part which relates to works without the limits of the Port. In our opinion, the second part of clause (8) is residuary of the first part of clause (8). Disagreeing with the interpretation made by D. Basu, J. of the second part of clause (8), we hold that the second part of clause (8) refers to works necessary for carrying out the purposes of the Act without the limits of the Calcutta Port.

9. Now the question is whether the establishment of a Dock at Haldia is for the purposes of the Act. In paragraph 10 of the affidavit filed on behalf of the appellants it is stated as follows:--

'With reference to the statements made in paragraph 7 of the said petition. 1 say that the Calcutta Port is handicapped for bars, bends and bores in the river Hooghly. The main limitations imposed on ships in the navigable approaches to Calcutta is draft Other restricting factors are limitation on the length of the ship that can use the Port due to sharp bends in the river up-stream of Diamond Harbour, the narrow width of the channel and the size of the vessel that could safely anchor at Garden Reach and Uluberia Anchorages. During the spring tide with high tidal range, when strong bore tides are expected, the berthing capacity of the Port is restricted, leading to congestion in the Docks at Sandheads. These limitations and the increase in the length and tonnage of ships brought out forcibly the necessity of dock system at Haldia, about 50 nautical miles downstream of Calcutta. In the present day, a seaport's right of existence and its future development depends upon the favourable situation with regard to hinterland it serves, the nature of its connection with the sea and the hinterland, means of transport available and facilities for transhipment and storage. The Port of Calcutta, 120 miles up in the river Hooghly serves an area rich in mineral resources larger than U. K. and France taken together and it is very necessary to develop a deep water Dock at Haldia further out in the estuary to make up the shortcomings of the Calcutta Port. With the improvement of Bhagirathi and Upper Hooghly after the completion of Farakka Barrage, the much needed perennial waterways link with Upper India will be available and with improved transport facilities, both Haldia and Calcutta can be developed complementary to each other. Therefore, Haldia is a 'must' to save the Calcutta Port.'

10. By a resolution dated May 23, 1960, passed in a meeting of the Commissioners, the Commissioners expressed an opinion that there was a necessity for the construction of a Dock at Haldia, A copy of the resolution of the Commissioners has been annexed to the supplementary affidavit filed on their behalf. The purposes for which the Commissioners are of the view that a Dock at Haldia should be constructed have been stated in paragraph 10 of the affidavit quoted above. It is apparent from the statements in paragraph 10 that the object of the proposed construction of the Dock at Haldia is to improve the condition of the Calcutta Port in respect of import and export of goods. Mr. Banerjee strenuously urged that the purposes as stated in paragraph 10 or as contained in the resolution of the Commissioners could not be said to be purposes for the Act. We are, however, unable to accept the said contention of Mr. Banerjee. It is not denied that with the construction of a Dock at Haldia there would be an improvement in the operation of the Calcutta Port and its capacity to export goods will be increased to a great extent. As D. Basu, J. was of the view that the second part of clause (8) refers to works within the limits of the Calcutta Port, he did not consider whether the purposes for which the Dock at Haldia is proposed to be constructed, are 'purposes' for the Act. In our opinion, when the Commissioners in a meeting have decided that there is a need for the establishment of a Dock at Haldia for the benefit of the Port at Calcutta, it cannot be said that the purposes for which there is a necessity for the establishment of a Dock are not purposes of the Act. Execution of any work which is beneficial to the proper working of the Calcutta Port must be held to be for the purposes of the Act. We therefore, hold that the establishment of a Dock at Haldia is for the purposes of the Act.

11. Mr. Banerjee, however, strenuously urged that even assuming that the construction of a Dock at Haldia is for the purposes of the Act, in the absence of a declaration by the Central Government under Section 58 (1) of the Act the proposed acquisition would be illegal and invalid. Mr. Dutt, however, submitted that Section 58 should be construed as directory and not mandatory. Prima facie, it appears to us that the provisions of Section 58 (1) are directory and not mandatory, but it is not necessary for us to decide this point finally. The whole object of Section 58 is that there should be a declaration by the Central Government that the land or building is required for a public purpose. Thereafter, the Central Government may cause proceedings to be taken for obtaining possession of the land or building for the Central Government and for determining the compensation to be paid to the parties interested according to any law in force for the acquisition of land for public purposer. The Land Acquisition Act, 1894 is the law in force for the acquisition of land for public purposes. Ultimately, therefore, the land or building has to be acquired under the provisions of the Land Acquisition Act. It has however, been contended by Mr. Banerjee that Section 58 (1) excludes the operation of the Land Acquisition Act in the sense that the State Government has no jurisdiction to acquire lands for a public purpose which is also a purpose under the Calcutta Port Act. We are unable to accept this contention. In our opinion, it is apparent from the clear language of Section 58 that instead of excluding the operation of the Land Acquisition Act it invokes and includes the same. In this connection we may refer to a decision of the Supreme Court in Patna Improvement Trust v. Shrimati Lakshmi Devi. : AIR1963SC1077 . In that case, the Government of Bihar issued a notification under Section 4 of the Land Acquisition Act proposing to acquire certain land in the city of Patna at the expenses of the Patna Improvement Trust for a public purpose. By another notification under Section 4, certain other lands were proposed to be acquired. These notifications were quashed by the High Court of Patna, and against the judgment and order of the Patna High Court, the Improvement Trust appealed to the Supreme Court by special leave. The respondents before the Supreme Court at whose instance the notifications were quashed by the High Court contended, that if the land was sought to be acquired for the purpose of the Patna Improvement Trust, then it could be acquired in accordance with the provisions of the Bihar Town Planning and Improvement Trust Act, 1951 (hereinafter referred to as the Bihar Act) and not under the provisions of the Land Acquisition Act. because the former Act completely replaced the Land Acquisition Act in regard to the acquisition of land for the purpose of the Improvement Trust. It was, further contended before the Supreme Court that the purpose of the Bihar Act was to provide a complete Code for acquisition of land for the purpose of the Trust and that the Bihar Act and the Land Acquisition Act were inconsistent Acts and could not operate 'in the same field. It has been observed by the Supreme Court that it is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the Special Act excluding the general, because the various provisions of the Bihar Act themselves afford the key to the solution of the problem which is one of construction. It has been pointed out by the Supreme Court that Section 71 of the; Bihar Act which modifies the Land Acquisition Act, itself state that for the purpose of acquisition of land for the Trust under the Land Acquisition Act, that Act, namely, the Land Acquisition Act shall he subject to the modifications specified in the schedule. It has been held by the Supreme Court that even for the purpose of acquiring land for the Trust, the machinery of the Land Acquisition Act as modified is contemplated and that it does not exclude the Land Acquisition Act, on the contrary it makes it applicable hut subject to its modifications and exceptions. The Supreme Court ultimately held that the notifications issued by the State Government were not invalid and that the High Court was in error in holding it otherwise.

12. Mr. Dutt also relied on another decision of the Supreme Court in Nandesh-war Prasad v. U. P. Government. : [1964]3SCR425 . In that case a scheme known as subsidized Industrial Housing Scheme was sponsored by the Housing Department of the U. P. Government. The Government of U. P. issued a notification under Section 4 of the Land Acquisition Act to the effect that two plots in dispute were required for the construction of tenements in the fourth phase of the subsidized Industrial Housing Scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Development Board. This notification was followed by a notification under Section 6 of the Land Acquisition Act. It was contended before the Supreme Court that as the acquisition was for the purposes of scheme No. XX of the Board, action had to be taken in accordance with S. 114 of the Kanpur Urban Area Development Act. 1945 (hereinafter referred to as the Kanpur Act) and the schedule (hereto and that as no action had been so taken, the proceedings for acquisition were bad. The Supreme Court repelled the said contention and it has been held by the Supreme Court that where the acquisition is by the Government under the Land Acquisition Act for public purpose though that purpose may be the purpose of the Board, the Kanpur Act has no application at all and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone.

13. Mr. Dutt relied on the aforesaid Supreme Court decisions and submitted that in the instant case, in spite of the provisions of Section 58, the State Government was entitled to acquire land for a public purpose, although that purpose might be a purpose under the Calcutta Port Act. Mr. Banerjee, however, sought to distinguish the Supreme Court decisions on the ground that if: both the decisions the land which is being acquired was within the limits of the Trust or the Board, but in the present case, the hind being outside the limits of the Calcutta Port, the principle laid in the Supreme Court decisions would not apply. We are, however, unable to accept the distinction sought to be made by Mr. Banerjee. In the Supreme Court decisions it has not beer, held that because the lands were situate within the limits of the Trust or the Board the same could (not?) be acquired under the provisions of the Land Acquisition Act. What has been held by the Supreme Court is that the State Government is entitled to acquire land for a public purpose even though that purpose may be a purpose of the Trust or the Board. In the present case, the purpose for which the disputed land is proposed to be acquired being a public purpose and as there is nothing in Section 58 which excludes the application of the Land Acquisition Act, we do not find any illegality in the proposed acquisition of the disputed land under the Land Acquisition Act The contention of Mr. Banerjee that as there is no prior declaration by the Central Government that the disputed land is required for a public purpose in accordance with Section 58 (1), the notification under Section 4 issued by the Stale Government is illegal, is rejected.

14. We may now assume that the proposed construction of a Dock at Haldia is not for the purposes of the Act. D. Basu, J. has held and it has also been argued by Mr. Banerjee that it is beyond the jurisdiction of the Commissioners to provide the expenses of the acquisition, in which case, the Court cannot uphold such an ultra vires act on the part of the statutory body of Commissioners. Under Section 58 (1), proceedings are to be taken under the Land Acquisition Act for obtaining possession of the land or building for the Central Government and not for the Port Commissioners. Sub-section (2) provides that on payment by the Commissioners of the compensation payable under such law, and all the charges reasonably incurred by the Collector in respect of the proceedings thereunder, such land or building shall vest in them for the purposes of the Act. Under Sub-section (1) after possession of the land or building is taken for the Central Government under the Land Acquisition Act, the question of payment of compensation and other charges by the Commissioners will arise. Tn the instant case, only a notification under Section 4 has beer, issued. II is true that in the notification it is stated that the proposed acquisition is at the expenses of the Port Commissioners, but in our view, that statement is not required to be made in a notification under Section 4. The question who will pay the compensation is not relevant at this stage. The question will be considered at the time the State Government makes a declaration under Section 6 of the Land Acquisition Act. It may so happen that the State Government wilt pay the compensation out of the Government fund and llireafter transfer the disputed land to the Port Commissioners. There is no bar to the acquisition of the disputed land by the State Government under the provisions of the Land Acquisition Act for the Commissioners for the Port of Calcutta who, it is not disputed, constitute a local authority within the meaning of Section 3(23) of the Bengal Central Clauses Act. The second proviso to Sub-section (I) of Section 6 expressly authorises acauisition of land for a local authority wholly or partly out of public revenues or some funds controlled or managed by the local authority. In our view, therefore, the contention that as the purpose for which the land is proposed to be acquired is not a purpose of the Act it is beyond the authority of the Commissioners to spend money for such acquisition, is misconceived.

15. It has been urged by Mr. Banerjee that the State of West Bengal not having enacted Entry law in pursuance of its authority under Entry 31 of the Concurrent List of the Constitution, or in other words, no law having been made for the purpose of establishing a Port at Haldia, acquisition of the land for such a purpose will be illegal. Entry 31 is as follows:--

'31. Ports other than those declared by or under law made by the Parliament or existing law to be major Ports.'

It is argued by Mr. Banerjee that Haldia Port which is going to be established is not a major Port and as such in the absence of any law made by the State of West Bengal, the establishment of such a Port will be illegal and the proposed acquisition cannot be said to be for a public purpose. We are, however, not impressed with this argument of Mr. Banerjee. In the notification under Section 4 the purpose is stated to be the establishment of a Dock at Haldia. A Dock is not a Port. Mr. Banerjee however, submits that the Commissioners arc contemplating to establish a Port. We arc, however, not concerned with what is within the contemplation of the Commissioners but we are concerned only with the notification under Section 4. When the notification does not state that the proposed acquisition i-s for the purpose of the establishment of a Port at Haldia it is not necessary for us to consider whether in the absence of a State law, the State Government ts entitled to acquire lands for the construction of a Port at Haldia.

16. For the reasons aforesaid, we hold that the notification under Section 4 is quite legal and valid and D. Basu J. was not right in quashing the notification. We would accordingly set aside the order of D. Basu J. and discharge the Rule obtained by the respondents Nos. 1 to 15 and dismiss the application under Article 226 of the Constitution. The appeal is allowed, but in view of the facts and circumstances of the case, there will be no order for costs.

Arun K. Mukherjea, J.

17. I agree.


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