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1965 Supreme(Cal) 45
HIGH COURT OF CALCUTTA
D. Basu
DHONE GOPAL MUKHERJEE - Appellant
Versus
SECRETARY, LAND AND LAND REVENUE DEPT. , GOVT. OF WEST BENGAL - Respondent
Civil Revn. 615 (W) Of 1962
Decided On : FEBRUARY 16, 1965
BANKIM CHANDRA DUTT, Manas Nath Roy, S.K.ACHARYA, SUSHIL KUMAR BISWAS
A public officer cannot be estopped or deemed to have waived his/her statutory duty to release property from requisition by any act of consent or waiver on the part of the property owner.
Headnote:
LAND ACQUISITION - REQUISITION - DEREQUISITION - WEST BENGAL LAND DEVELOPMENT AND PLANNING ACT, 1948 - REQUISITIONING AND ACQUISITION OF IMMOVABLE PROPERTY ACT, 1952 - PUBLIC PURPOSE - MALA FIDES - ESTOPPEL - WAIVER - TERMINAL COMPENSATION - USE AND OCCUPATION COMPENSATION.
Fact of the Case:
Petitioners' lands were requisitioned in 1944 under the Defence of India Act, 1939. After the war, the purpose for which the lands were requisitioned ceased, and the petitioners requested the government to release the lands. The government, however, issued a notification under the West Bengal Land Development and Planning Act, 1948, stating that the lands were required for the settlement of immigrants from Pakistan.
Finding of the Court:
The court held that the requisition of the lands under the West Bengal Act was illegal and mala fide since the lands were still under requisition under the Defence of India Act. The court further held that the petitioners could not be estopped or deemed to have waived their right to have the property released from requisition by any act of consent or waiver on their part.
Issues: 1. Whether the requisition of the lands under the West Bengal Act was legal and valid? 2. Whether the petitioners were estopped or had waived their right to have the property released from requisition?
Ratio Decidendi: 1. The court held that the requisition of the lands under the West Bengal Act was illegal and mala fide since the lands were still under requisition under the Defence of India Act. The court relied on the decision of the Supreme Court in Union of India v. Ram Kanwar, which held that the power to requisition under the Defence of India Rules was conditioned by the four public purposes mentioned in that Rule, and that though the requisition was continued by the subsequent enactments referred to, the original purposes were never enlarged, so that as soon as the original purpose for which a property had been requisitioned under Rule 75a ceased to exist, it became "obligatory for the Government to release the property", under Section 6 of the Act of 1952, and to restore possession of the property to its owner. 2. The court held that the petitioners could not be estopped or deemed to have waived their right to have the property released from requisition by any act of consent or waiver on their part. The court relied on the decision of the Judicial Committee in Maritime Electric Co. Ltd. v. General Dairies Ltd., which held that "it was the duty of each party to obey the law" and that, accordingly, one party cannot escape that duty by obtaining the consent of the other party.
Final Decision: The court made the Rule absolute and directed Respondent No. 5 to make an order of release from requisition and to restore possession to the petitioners. The court also directed that the notifications under Sections 4 and 6 of the West Bengal Land Development and Planning Act and proceedings subsequent thereto in respect of the disputed lands be cancelled and the respondents be directed not to give effect to them.
( 1 ) THIS petition under Article 226 is directed against notifications under Sections 4 and 6 of the West Bengal Land Development and Planning Act, 1948 (hereinafter referred to as "the West Bengal Act") issued against the petitioners' lands in C. S. plots 639-642 and 694 of Mouza Rahara. and proceedings subsequent thereto.
( 2 ) ADMITTEDLY, these lands were, on the 21st of May, 1944, requisitioned by the Land Acquisition Collector, Respondent No. 5 under Rule 75a of the Rules framed under the Defence of India Act. 1939 as per annexure A. for providing accommodation to Mill workers who were dislodged by military personnel. Petitioners' case is that after the termination of World War II, the purpose for which the lands had been requisitioned ceased and, at the request of the petitioners to release the lands for their own use for their Rubber Factory the Government of West Bengal, by its letters of the 1st August, 1949 and the 9th February 1950, stated that the question of derequisitioning these lands was being actively considered by the Government and that the land would be released as soon as an alternative site was available for the persons then occupying the lands (Anuexure B ). It appears from later correspondence that squatters had in the meantime occupied these lands and by their letter of the 31st August, 1951, the Land and Land Revenue Department of the Government informed the petitioners that they had instructed the Collector to apply before the Competent Authority appointed under the Statute, enacted in 1951, for the eviction of unlawful occupants from the Government premises, and this proceeding does not appear to have been disposed of since then.
( 3 ) ON the 28th November, 1957, curiously, the petitioners wore advised by the Collector, 24 Parganas that,"the Government of West Bengal is the proper authority to release the requisitioned property by evicting the refugees squatted thereon. . . . . . Further development in this connection may he had from the Government".
( 4 ) AFTER continued demands and representations for derequisitioning the lands, the Refugee Relief and Rehabilitations Department of the Government of West Bengal, by their letter of the 19th April, 1955 requested the petitioners to let them know whether they were "agreeable to dispose of the lands measuring 7. 14 acres to Government at the rate prevailing in December, 1946" (Annexure II ).
( 5 ) AFTER the petitioners communicated their disapproval of the proposal, the Government issued the notification under Section 4 of the West Bengal Act on the 26th of April, 1956 (p. 38, Annexure I) stating that the disputed lands were required "for the settlement of the immigrants who had migrated to West Bengal".
( 6 ) THE petitioners' case, in short, is that the proceedings for acquisition of the land under the West Bengal Act. while the lands were under requisition in exercise of the powers under the Defence of India Act, are illegal and mala fide.
( 7 ) THE State of West Bengal, in its affidavit-in-opposition, states that the West Bengal Act has been properly applied since the present occupants of these lands arc displaced persons from Pakistan. In the separate affidavit filed on behalf of Respondents 4 and 5, it is stated, inter alia, that before the Inquiring Officer under Section 4a of the West Bengal Act, the Petitioners stated that they were willing to part with the disputed lands provided they were paid compensation at the rate of Rs. 600 per cottah.
( 8 ) THE primary contention urged by Mr. Acharya on behalf of the petitioners is that since the initial order of requisition of 1944 (Annexure A) is still subsisting, it is not competent for the State Government to acquire the lands under the West Bengal Act. without first derequisitioning the lands and restoring them to the petitioners. In this contention, Mr. Acharva is fortified by the decision of the Supreme Court in Union of India v. Ram Kanwar.
( 9 ) THE disputed lands were requi
