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Mrs. Roma Bose and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 408 of 1978
Judge
Reported inAIR1978Cal584,82CWN984
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 6 and 9; ;Constitution of India - Article 258(1)
AppellantMrs. Roma Bose and ors.
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateBhabani Prasad Chatterjee, ;Susil Kumar Biswas and ;Biblap Mitra, Advs.
Respondent AdvocateD.N. Das and ;R. Majumdar, Advs. (for Nos. 1 to 6), Arun Prakash Chatterjee and ;Tapan Sengupta, Advs. (for Nos. 2 to 5)
DispositionAppeal dismissed
Cases ReferredRatilal Shankarabhai v. State of Gujarat
Excerpt:
- .....prasad mukherjee road challenged the notification dated 2-11-72 issued under section 4 of the land acquisition act, 1894 as well as the declaration dated 29-11-73 made under section 6 of the said act on an application under article 226 of the constitution being civil rule no. 7597(w) of 1974. the said notification under section 4 was issued notifying that lands including the disputed premises mentioned in the said notification measuring more or less 0.754 hectare were likely to be needed for the public purpose namely for construction of mass rapid transit system and other connected works relating to the said system from dum dum to tollygunge, in the city of calcutta. it was also mentioned therein that persons interested might file their objections to the acquisition within 30 days.....
Judgment:

B.C. Ray, J.

1. This appeal at the instance of the petitioners is against thejudgment and order passed by Amiya Kumar Mookerji, J. on Feb. 10, 1978 discharging the Civil Rule No. 7597 (W) Of 1974.

2. The petitioners 1 to 3 who are the owners and the petitioner No. 4 who is a lessee in respect of the premises No. 104, Shyama Prasad Mukherjee Road challenged the notification dated 2-11-72 issued under Section 4 of the Land Acquisition Act, 1894 as well as the declaration dated 29-11-73 made under Section 6 of the said Act on an application under Article 226 of the Constitution being Civil Rule No. 7597(W) of 1974. The said notification under Section 4 was issued notifying that lands including the disputed premises mentioned in the said notification measuring more or less 0.754 hectare were likely to be needed for the public purpose namely for construction of Mass Rapid Transit system and other connected works relating to the said system from Dum Dum to Tollygunge, in the city of Calcutta. It was also mentioned therein that persons interested might file their objections to the acquisition within 30 days after the date on which public notice and the substance of the notification would be given in the locality. The petitioner No. 4, it has been stated, inspected the records of the case and took pencil copy of the rough sketch of the plan lying with the record of the case. The petitioner No. 4, however, was not shown the Master Plan and the sanctioned scheme relating to the Mass Rapid Transit system in spite of the request and he was told that the same would not be available. The petitioners filed an objection before the Collector and they were given hearing in respect of their objections. A declaration under Section 6 of the said Act was published declaring that a portion of premises No. 104, Shyama Prasad Mukherjee Road Was needed for the aforesaid public purpose. In the objection filed it has been stated that the land of premises No. 104, Shyama Prasad Mukherjee Road is used for the religious purpose inasmuch as there is a temple on a portion of the land and in the said temple a marble Ganesh Bigraha which is the family deity has been installed. In front of the temple there is a 'Mandap', that is, the assembly floor used for marriage, Anna-prasana, Upanayana ceremonies etc. at the compelling requests of the local people and a part of the said premisesis lying vacant. It has been stated that the said premises should be released from acquisition. It has also been submitted that the public purpose as mentioned in the notification under Section 4 was not specific and as such the declaration made on this basis was illegal and arbitrary. A Rule being Civil Rule No. 7597 (W) of 1974 was issued.

3. An affidavit-in-opposition was filed on behalf of the respondents 2 to 5 wherein it was stated that the proposed land was required for construction of electric-sub-station and for construction of exhaust shaft. It has also been stated that a strip of lend on the northern side serving access to the 'Mandap' was excluded from acquisition and the acquisition is being made according to the revised plan which will not, in any way, disturb the religious function that will be held on the 'Mandap'. It has also been stated therein that the petitioners were fully aware of the purpose of the acquisition and there was no difficulty for the petitioners to file their objections effectively.

4. On 10th of Feb. 1978, Amiya Kumar Mookerji, J. after hearing the parties discharged the Rule holding that the State Government was competent to acquire property either for the purpose of the Union or for the State purpose in view of the Constitution (7th Amendment) Act, 1956. It was further held that the non-compliance of the provisions of Sub-section 2 of Section 4 of the said Act did not render the notification under Section 4 of the Act invalid. The petitioners were fully aware of the purpose for which the disputed premises was sought to be acquired by the State Government and as such the petitioners had opportunity to file effective objection under Section 5A of the Act.

5. Against the said judgment and order the instant appeal has been preferred by the appellants.

6. Mr. Bhabani Prasad Chatterjee, learned advocate appearing in support of the appeal has contended in the first place that the acquisition of the land-in-question by the State Government by virtue of the notification issued by the Government of India under Article 258(1) of the Constitution of India entrusting the State Government the functions of the Central Government relating to acquisition of land is illegal and invalidinasmuch as the State Government is competent to acquire land for the Central Government in view of the Constitution (7th Amendment) Act, 1956. It has been next submitted by Mr. Chatter-jee that the public purpose as mentioned in the notification under Section 4 of the Land Acquisition Act being vague and not specific the petitioners have not been able to make an effective representation under Section 5A of the said Act and as such the purported acquisition is illegal and bad. It has also been submitted that the non-disclosure of the specific purpose to which the land-in-question will be put to has made it difficult for the petitioners to make effective objection against the proposed acquisition inasmuch as it is not possible for them to know whether the proposed acquisition will injuriously affect the portion of the said premises left out of acquisition. The declaration made on its basis is also bad. It has lastly been submitted that there has been no survey made in order to determine whether the land proposed to be acquired are suited for the purpose for which the same is notified for acquisition as required under Section 4(2) of the said Act and as such the acquisition proceedings are bad and they are liable to be set aside.

7. Mr. D. N. Das, learned advocate appearing on behalf of the respondents, on the other hand, submitted that the proposed acquisition by the State Government for the Central Government is not at all illegal and bad inasmuch as the Constitution (7th Amendment) Act, 1956 placed acquisition and requisition of property 'in item 42 in list III (Concurrent List) in the 7th sch.' It has also been contended that public purpose as mentioned in the notification under Section 4(1) of the said Act is not at all vague and the petitioners can effectively file objection under Section 5A against the proposed acquisition. The notification under Section 4(1) and the declaration under Section 6 of the said Act are not at all illegal end bad. It has also been submitted that in the objection filed it has not been stated that due to non-mentioning in the notification under Section 4 of the Act of the specific user to which the property will be put the petitioners could not file any proper objection. It has also been submitted that the acquisition proceedings cannot be challenged as bad and arbitrary on the ground that the public purpose for which the proposed acquisition is to be made has not been specifically stated.The public purpose has been clearly stated in the notification under Section 4(1) of the Act as well as in the declaration under Section 6 of the said Act and the same has become final. It has also been submitted that non-compliance of the provision of Section 4(2) of the said Act does not, in any way, render the acquisition proceedings invalid or bad inasmuch as provisions of the said Sub-section merely enables the officers of the Land Acquisition Department to enter upon the lands and to dig and survey in order to examine its suitability. The said provision is not at all mandatory.

8. As regards the first submission that the acquisition of the disputed premises by the State Government for the purpose of the Union on the basis of the entrustment of the functions of the Central Government under Article 258(1) of the Constitution of India is bad after the Constitution (7th Amendment) Act, 1956 it appears that the power of acquisition for Union purposes was mentioned in item No. 33 of List I of the 7th sch. and the power of acquisition and requisition for the purpose of the State was provided in item No. 36 of List II of the said schedule. By the Constitution (7th Amendment) Act, 1956 item No. 33 of List I of the 7th schedule and item No. 36 of List II of the said schedule were omitted and item No. 42 dealing with the acquisition and requisition of property has been inserted in List III of the 7th sch. So in view of the amended provision the State Government is competent to acquire land both for the State purposes as well as for the purposes of the Union and for this no entrustment by the Central Government of its power to acquisition or requisition of property is necessary. This being the position the mere mention of the delegation of the powers of the Central Government to the State Government under Article 258(1) of the Constitution in the notification under Section 4 of the Land Acquisition Act does not render the acquisition proceedings-in-question invalid or bad. This contention is, therefore, of no substance and as such the same is overruled.

9. It has been strenuously contended on behalf of the appellants that the public purpose as mentioned in the notification under Section 4 is vague as the specific purpose for which the land-in-question is required has not been statedand the petitioners have not been given inspection of the Master Plan and the scheme-in-question and as such they could not effectively object against the proposed acquisition as required under Section 5A of the said Act. It is evident from the notification under Section 4 annexed as annexure A to the petition that the public purpose mentioned therein in Mass Rapid Transit system and other connected works relating to the said system from Dum Dum to Tollygunge in the city of Calcutta. It is also evident from the said notification that a large area of land measuring more or less 0.754 hectare and involving a large number of premises had been notified for acquisition. In the declaration that has been made under Section 6 of the said Act it has been specifically mentioned that the disputed land is needed for the public purpose namely for construction of Mass Rapid Transit system and other connected works relating to the said system from Dum Dum to Tollygunge in the city of Calcutta. The work of construction of Mass Rapid Transit system and other connected works relating to the said system are undoubtedly a public purpose inasmuch as the public will be benefited by the said work. It has been observed in : [1955]1SCR777 , State of Bombay v. Bhanji Munji that it is not necessary to set out the purpose of the requisition in the order under Sections 5(1) and 6(4) of Bombay Land Requisition Act, 1948. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way. In : [1966]3SCR885 Arnold Rodricks v. State of Maharashtra a notification under Section 4 of the Land Acquisition Act which stated that the land was needed for 'development and utilisation of the said land as an industrial and residential area' was held to be sufficient specification of the public purpose within the Land Acquisition Act and the notifications under Sections 4 and 6 were not bad for vagueness. In : [1973]1SCR973 Munshi Singh v. Union of India the notification under Section 4 of the Land Acquisition Act mentioned that lands were needed for a public purpose, that is, 'planned development of the area.' An application was made before the Special Land Acquisition Officer, Gaziabad for supplying a copy of the scheme of planned development for which notification under Section 4 had been published to enable petitioners to make representation at the hearing of objection under Section 5A of Land Acquisition Act. The petitioners were not given a copy of the scheme as no such scheme of planned development was available in the office. Thereafter a notification was issued under Sections 6 and 17 of the Land Acquisition Act. It was held that the public purpose as mentioned in the notification was vague and it did not convey any idea as to the specific purpose for which the lands were to be utilised. The notification under Section 4(1) while mentioning the public purpose must give some definite indications or particulars of the said purpose in order to enable the persons to object effectively if so desired. In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objection under Section 5A of the said Act. It was therefore held that owing to the vagueness and indefiniteness of the public purpose stated in the notification under Section 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area-in-question the appellants were unable to object effectively under Section 5A of the Acquisition Act. In : [1975]1SCR802 Alfatoon v. Lt. Governor of Delhi the notification under Section 4(1) of the Land Acquisition Act mentioned the public purpose as 'planned development of Delhi.' It was held that whether the purpose specified in the notification under Section 4 was sufficient to enable an interested person to file objection under Section 5A would depend upon the facts and circumstances of each case. It has been further held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be referred to the acquisition of the whole area. It is difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed. The decision in : [1966]3SCR885 (supra) has been relied upon. In : [1976]1SCR341 , Lila Ram v. Union of India a notification under Section 4 of the Land Acquisition Act in respect of land measuring about 3000 acres mentioned that it was required 'for the execution of theInterim General plan for the Greater Delhi'. No objection was taken before the authorities concerned that the public purpose was not specified. It was observed by Their Lordships of the Supreme Court that the lands covered by the notification being a huge area it might practically be difficult to specify the particular public purpose for which each and every item of land comprised in that area was needed. The acquisition proceeding was held valid. The decision in : [1975]1SCR802 was followed. It was also held that the appellant having not raised any objection before the authorities concerned that they could not file effective objection against the proposed acquisition because of the public purpose mentioned in the notification being not specific could not b9 allowed to agitate the said point.

10. In the instant case the public purpose mentioned in the notification under Section 4 of the Land Acquisition Act has been referred to hereinbefore. It is also not disputed that the appellants did not raise any objection before the Collector that due to vagueness of the public purpose mentioned in the notification under Section 4 and owing to the nonavailability of the Master Plan and the scheme for inspection by them no effective objection could be made by them under Section 5A of the Act. Moreover, the notification was issued in respect of a large area involving several premises and as such it is not possible to specifically mention the particular purpose or user for which each of the several plots or premises is proposed to be acquired. The general purpose of acquisition has been clearly mentioned in the notification under Section 4 as well as in the declaration under Section 6 of the said Act. As such on a conspectus of the decisions referred to hereinbefore we have no hesitation to hold that the public purpose as mentioned in the notifications is not vague and the acquisition proceedings cannot be held to be bad on that score. It is also necessary to mention in this connection that the notification under Section 4 was published on 2nd Nov. 1972 and the declaration under Section 6 was published on 29th of Nov. 1973. The acquisition proceeding was challenged as late as on l2th of Dec. 1974. Due to this long delay and laches on the part of the appellants in challenging the acquisition proceedings they are disentitled from getting any relief.

11. The contention that due to the non-disclosure of the specific purpose to which the land-in-dispute would be put to appellants could not raise the plea of injurious affection of the lands left out of acquisition and as such they could not claim compensation for such injurious affection is not sustainable for the simple reason that such a claim regarding the compensation on the ground of injurious affection of the remaining lands left out of acquisition as provided in Clause 4 of Section 23 of the Land Acquisition Act is a matter which can be raised after receipt of the notice under Section 9 of the said Act and not be-fore that. In this case that stage has not reached when the Civil Rule was issued. Moreover, we have already held that the public purpose as mentioned in the notification under Section 4 and in the declaration under Section 6 is not at all vague and indefinite. This submission is, therefore, untenable. It may be mentioned in this connection that the application of the declaration under Section 6 is a conclusive evidence as to the public purpose for which the land is needed and the same cannot be challenged on the ground that the public purpose mentioned was not specific but vague. Reference may be made in this connection to the decision reported in : AIR1970SC984 Ratilal Shankarabhai v. State of Gujarat where it has been observed that after a declaration has been published under Section 6 the Court cannot go into the question whether the need was genuine or not unless it is satisfied that the action taken by the Government was a fraudulent one. The collusiveness in Section 6(3) must necessarily attach not merely to a 'need' but also to the question whether the purpose was a public purpose.

12. In the premises aforesaid the contentions raised on behalf of the appellant having failed the appeal fails and the same is hereby dismissed without any order as to costs. The judgment and order of the court below is hereby affirmed.

13. There will be stay of the operation of the order for three weeks from date, as prayed for.

Chittatosh Mookerjee, J.

14. I agree.


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