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HIGH COURT OF CALCUTTA
P. B. Mukharji, B. C. Mitra
MIHIR KUMAR SARKAR - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O. 126 Of 1970
Decided On : JULY 05, 1971
WEST BENGAL LAND (REQUISITION AND ACQUISITION) ACT, 1948 - REQUISITION - ACQUISITION - DISTINCTION - NOTICE - NATURAL JUSTICE - PUBLIC PURPOSE - CHANGE IN CHARACTER OF PROPERTY - TIME FOR DELIVERY OF POSSESSION - VALIDITY OF REQUISITION - CONSTITUTIONALITY OF ACT - ADDITIONAL GROUNDS - AFFIDAVIT-IN-OPPOSITION - OPINION OF STATE GOVERNMENT. The West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act 2 of 1948) provides for the requisition and speedy acquisition of land for certain purposes. The Act makes a distinction between requisition and acquisition. Requisition is the temporary taking of possession of land for a public purpose, while acquisition is the permanent acquisition of land for a public purpose. The Act does not require notice to be given to the owner or occupier of the land before requisition. However, the order of requisition must be served on the owner or occupier in the prescribed manner. The principles of natural justice do not require that notice be given to the owner or occupier of the land before requisition. This is because the Act specifically excludes the requirement of notice. A requisition is for a public purpose if it is made for one of the purposes specified in Section 3(1) of the Act. These purposes include the creation of better living conditions in rural or urban areas by the construction or reconstruction of dwelling places. A requisition does not become invalid merely because it involves a change in the character of the property requisitioned. The Act expressly permits the change in the character of the property requisitioned. The Act does not specify any particular notice or any minimum period of notice that must be given before requisition. The owner or occupier of the land is expected to know what he is required to deliver by the order of requisition. The amendment of Section 3(1) of the Act by the West Bengal Land (Requisition and Acquisition) (Amendment) Ordinance, 1969 (West Bengal Ordinance 13 of 1969) widened the ambit of the section. The section is no longer intended for people residing in such areas. The West Bengal Land (Requisition and Acquisition) Act, 1948 is constitutional. It does not violate Articles 19 and 31 of the Constitution of India. Additional grounds of challenge to the requisition order, which were not pressed in the appeal, are not available to the appellants. The fact that the order of requisition was signed by the Additional District Magistrate, who is alleged not to have applied his mind but mechanically signed the order, does not invalidate the order. The opinion of the State Government can be formed and based on the report of administrative officers.
Fact of the Case:
The appellants challenged the Government's Order of requisition of appellants' lands under the West Bengal Land (Requisition and Acquisition) Act, 1948. The appellants claimed to be the owners of certain fisheries which are included in this requisition. The same area was covered by the declaration made by the Government under the Land Acquisition Act and dated the 21st May, 1968. The appellants then disputed the validity of that declaration under the Land Acquisition Act in proceedings which were marked as Civil Rule No. 7132 (W) of 1968. By a judgment and order dated the 15th July, 1969 Mr. Justice B. C. Mitra set aside the said acquisition proceedings under the Land Acquisition Act on the finding that the object set out in the declaration was not the actual object for which the acquisition was being made.
Finding of the Court:
The Court held that the requisition of the appellants' lands under the West Bengal Land (Requisition and Acquisition) Act, 1948 was valid. The Court found that the Act was constitutional, that the requisition was for a public purpose, that the change in the character of the property requisitioned was permitted under the Act, that the notice given to the appellants was sufficient, and that the order of requisition was not invalid because it was signed by the Additional District Magistrate who is alleged not to have applied his mind but mechanically signed the order.
Issues: 1. Whether the West Bengal Land (Requisition and Acquisition) Act, 1948 is constitutional? 2. Whether the requisition of the appellants' lands was for a public purpose? 3. Whether the change in the character of the property requisitioned was permitted under the Act? 4. Whether the notice given to the appellants was sufficient? 5. Whether the order of requisition was invalid because it was signed by the Additional District Magistrate who is alleged not to have applied his mind but mechanically signed the order?
Ratio Decidendi: 1. The West Bengal Land (Requisition and Acquisition) Act, 1948 is constitutional. It does not violate Articles 19 and 31 of the Constitution of India. 2. A requisition is for a public purpose if it is made for one of the purposes specified in Section 3(1) of the Act. These purposes include the creation of better living conditions in rural or urban areas by the construction or reconstruction of dwelling places. 3. A requisition does not become invalid merely because it involves a change in the character of the property requisitioned. The Act expressly permits the change in the character of the property requisitioned. 4. The Act does not specify any particular notice or any minimum period of notice that must be given before requisition. The owner or occupier of the land is expected to know what he is required to deliver by the order of requisition. 5. The fact that the order of requisition was signed by the Additional District Magistrate, who is alleged not to have applied his mind but mechanically signed the order, does not invalidate the order. The opinion of the State Government can be formed and based on the report of administrative officers.
Final Decision: The appeal was dismissed with costs assessed at five gold Mohurs.
( 1 ) THIS is an appeal from the judgment and order of Mr. Justice Anil Kumar Sen dated the 5th March, 1970, discharging the Rule obtained by the appellants.
( 2 ) THE appellants moved this court under Article 226 of the Constitution against the State of West Bengal, the Additional District Magistrate, 24-Parganas and the Collector (under West Bengal Act II) Alipore. In that application the appellants prayed inter alia for a writ of mandamus commanding the respondents to withdraw, recall and cancel the Order of requisition issued by the State of West Bengal on or about 5th November, 1969 and for incidental relief for injunction restraining the respondents, their officers and servants and agents from interfering with the possession of the appellants in respect of the said land notified. The appellants' challenge in this appeal is against the Government's Order of requisition of appellants' lands under the West Bengal Land (Requisition and Acquisition) Act, 1948.
( 3 ) THE facts briefly appear from the Order of Requisition itself. In the first place the Order recites:"whereas in my opinion it is necessary for creation of better living conditions in rural or urban areas by the construction or reconstruction of dwelling places in Mouza Dhapanagar, P. S. Bhangar, District: 24-Parganas for I. W. Department of the West Bengal to requisition the land described in the Schedule below. "
( 4 ) THE Order then traces the authority for requisition of land to the Government Notification No. 20500 dated the 3-12-1963 read with the Notification No. 3094 LA dated 17-2-1963 published in the Calcutta Gazette Extra-ordinary of the 21st October, 1963 at page 367. This notification authorises the Collector to exercise the power conferred by Sec. 3 (1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act 2 of 1948) as amended by Act VIII of 1954, XII of 1967 of 1962, XXII of 1963 and Act III of 1967.
( 5 ) IN exercise of the power conferred by Section 3 (1) of the West Bengal Land (Requisition and Acquisition) Act 1948 the Collector requisitioned the land mentioned in the schedule and ordered:" (1) possession of the land as described in the sch. by the Surveyor Shri S. Roy/shri Ganguli on and from 8th November. 1969. (2) the plan of the land may be inspected in the office of the Special Land Requisition Officer, Alipore. "
( 6 ) THE land in question falls within the reclamation of the Southern Salt Lake area in the Eastern outskirt of the city of Calcutta which is a well known big project of urban development.
( 7 ) THE Order of Requisition is challenged on diverse grounds.
( 8 ) THE first objection is that this requisition has been made by the Government in violation of the Court's order in Civil Rule No. 7132 (W) of 1968 giving opportunity to the respondents to proceed afresh in accordance with the law under the provisions of the Land Acquisition Act. The appellants' contention is that the respondents violated those directions by taking recourse to a different Statute, viz. West Bengal Land (Requisition and Acquisition) Act, 1948 and not proceeding under the Land acquisition Act for which opportunity was given by these directions of the Court in that Civil Rule.
( 9 ) THE context of this argument Is provided by the following facts. The appellants claimed to be the owners of certain fisheries which are included in this requisition. The same area was covered by the declaration made by the Government under the Land Acquisition Act and dated the 21st May, 1968. The appellants then disputed the validity of that declaration under the Land Acquisition Act in proceedings which were marked as Civil Rule No. 7132 (W) of 1968. By a judgment and order dated the 15th July, 1969 Mr. Justice B. C. Mitra set aside the said acquisition proceedings under the Land Acquisition Act on the finding that the object set out in the declaration was not the actual object for which the acquisition was being made.
( 10 ) ON
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