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1966 Supreme(Cal) 12
HIGH COURT OF CALCUTTA
H. K. Bose, B. C. Mitra
ABDUL KADER LASKAR - Appellant
Versus
STATE OF WEST BENGAL - Respondent
AFOO 378 Of 1965
Decided On : JANUARY 10, 1966
Brotendra Nath Banerji, HARI NARAYAN MUKHERJEE, R.K.BOSE, ROY CHOUDHURY, SMRITI KUMAR, Somendra Chandra Basu
The provisions of Sections 5-A, 40, and 41 (5) of the Land Acquisition Act were complied with in the present case, and the proposed acquisition could be justified under Section 40 (1) (aa) of the Act.
Headnote:
LAND ACQUISITION - Section 5-A - Hearing of Objections - Section 40 - Enquiry - Section 41 (5) - Terms of Agreement - Section 40 (1) (aa) - Applicability - Public Purpose.
Fact of the Case:
Appellants' lands were notified for acquisition for construction of a Students' Home by Ram Krishna Mission under Section 4 of the Land Acquisition Act. Objections were filed by the appellants and others, which were overruled. A declaration under Section 6 of the Act was published. Appellants challenged the legality of the declaration under Article 226 of the Constitution.
Finding of the Court:
1. The provisions of Section 5-A of the Land Acquisition Act were complied with. The Additional Land Acquisition Collector, who was authorized to perform the functions of a Collector, held the enquiry and submitted a report containing his recommendations to the Government. The Government considered the objections and the report and decided to proceed with the acquisition. 2. Sections 5-A and 40 of the Land Acquisition Act are not mutually exclusive. In certain cases, an enquiry under Section 40 may be necessary as supplementary to the enquiry made under Section 5-A. 3. The terms of Section 41 (5) of the Land Acquisition Act were complied with. The agreement entered into between the Government and the Ram Krishna Mission contained sufficient provisions to ensure a right to the public to use the work. 4. The proposed acquisition could also be justified under Section 40 (1) (aa) of the Land Acquisition Act, as the Ram Krishna Mission was engaged in work which was for a public purpose and the construction of a Students' Home was a work which sub-served such public purpose.
Issues: 1. Whether the provisions of Section 5-A of the Land Acquisition Act were complied with. 2. Whether Sections 5-A and 40 of the Land Acquisition Act are mutually exclusive. 3. Whether the terms of Section 41 (5) of the Land Acquisition Act were complied with. 4. Whether the proposed acquisition could be justified under Section 40 (1) (aa) of the Land Acquisition Act.
Ratio Decidendi: 1. The provisions of Section 5-A of the Land Acquisition Act were complied with as the Additional Land Acquisition Collector, who was authorized to perform the functions of a Collector, held the enquiry and submitted a report containing his recommendations to the Government. The Government considered the objections and the report and decided to proceed with the acquisition. 2. Sections 5-A and 40 of the Land Acquisition Act are not mutually exclusive. In certain cases, an enquiry under Section 40 may be necessary as supplementary to the enquiry made under Section 5-A. 3. The terms of Section 41 (5) of the Land Acquisition Act were complied with as the agreement entered into between the Government and the Ram Krishna Mission contained sufficient provisions to ensure a right to the public to use the work. 4. The proposed acquisition could also be justified under Section 40 (1) (aa) of the Land Acquisition Act, as the Ram Krishna Mission was engaged in work which was for a public purpose and the construction of a Students' Home was a work which sub-served such public purpose.
Final Decision: The appeal was dismissed with costs to the respondents.
( 1 ) THIS is an appeal from an order of Banerjee, J. dated 9th August 1965 discharging a Rule issued under Article 226 of the Constitution.
( 2 ) THE appellants arc owners of lands measuring. 49 acres comprised in Dag Nos. 275-78 in mouza Ukhila Paikpara. P. S. Sonarpur in the District of 24-Parganas.
( 3 ) ON 3rd August 1961, a notification was published in the Calcutta Gazette (Extra-ordinary) under Section 4 of the Land Acquisition Act dated 3rd August 1961, intimating that 1. 68 acres of land in the said village were likely to be needed for a public purpose, viz. , construction of Students' Home at the expenses of Ram Krishna Mission.
( 4 ) ON coming to know of the publication of the said notification objections were filed to the proposed acquisition on behalf of the appellants as well as other persons in the locality. In the said objections it is inter alia pointed out that the Ram Krishna Mission had more land by acquisition and/or private purchase at its disposal in the said mouza Ukhila-Paikpara as well as in certain contiguous villages than what would be required for carrying out the project for which the land was required. But these objections were overruled and on 23rd of October 1962 a notification was published in the Calcutta Gazette (Extra-ordinary) containing a memorandum of agreement dated 22nd October 1962 which was entered into between the Ram Krishna Mission and the Governor of West Bengal purporting to be made under Section 42 of the Land Acquisition Act. In the same Gazette a declaration under Section 6 of the Land Acquisition Act was published. It appears that as the Ram Krishna Mission is a registered society and as such a "company" within the meaning of the Land Acquisition Act, the said memorandum of agreement dated 22nd October 1962 was executed in compliance with the provisions of part 7 of the Land Acquisition Act before declaration under Section 6 of the Act could be published.
( 5 ) ON 26th March 1963 the appellants moved this Court under Article 226 of the Constitution challenging the legality of the declaration under Section 6 of the Land Acquisition Act and a Rule Nisi was issued by Banerjee, J. , limited to Grounds IV, XIII and XX of the petition.
( 6 ) THEREAFTER, an affidavit-in-opposition affirmed on the 26th August 1963 by the General Secretary of the Ram Krishna Mission, was filed on behalf of Ram Krishna Mission, the respondent No. 6 and on the 4th January 1964 a supplementary affidavit affirmed by the same Secretary was filed on behalf of the said respondent No. 6. A separate affidavit affirmed by one Shri Shyamapada Sen, the Additional Land Acquisition Collector, Alipore, on 7th January 1964 was filed on behalf of the respondents 1 to 4. On behalf of these respondents a supplementary affidavit affirmed on 11th June 1965 by one Shri Suirendranath Ganguly who was the Additional Land Acquisition Collector, Alipore, at the relevant time was also filed and the appellants filed an affidavit-in-reply affirmed on the 21st of June 1965. The Rule finally came up for hearing before Banerjee, J. , who by his judgment and order dated 9th August 1965 discharged the Rule as already stated. It is against tins judgment and order of Banerjee. J. , that the appellants have preferred the present appeal.
( 7 ) THE appellants have also filed another appeal being Appeal from Original Order No 371 of 1963 against the order of Banerjee, J. , dated 26th March 1963 by which he issued a Rule limited only to Grounds IV, XIII and XX and refused to issue Rule on the other grounds set out in paragraph 20 of the petition. The grievance in this appeal is that the learned Judge should have issued a Rule on all the grounds set out in paragraph 20 of the petition.
( 8 ) AT the hearing of the two appeals before us the learned Advocates appearing for the parties have agreed that this Court should allow the appellants to urge such grounds in the petition as they would like to urge before us and they shoul
