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High Court Of Calcutta
Paritosh Kumar Mukherjee
SUSHILA DEBI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 15211 Of 1986
Decided On : 07/31/1989
WEST BENGAL LAND (REQUISITION AND ACQUISITION) ACT, 1948 - Requisition of Land - Validity - Urgency - Non-service of Order - Permanent Acquisition - Applicability of Act II of 1948 - Power of CMDA - Public Purpose - Interpretation of Statutes.
Fact of the Case:
The petitioners, who were carrying on business at 7 Mukhram Kanoria Road, P. S. Golabari, District - Howrah, challenged the order of requisition passed by the District Magistrate, Howrah under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948). The petitioners contended that the order was passed without due formation of opinion, that it was not served upon them in accordance with the relevant rules, and that the requisition was for a permanent purpose, which was not permissible under Act II of 1948.
Finding of the Court:
The court held that the order of requisition was invalid for the following reasons: 1. The order was not served upon the petitioners in accordance with the relevant rules. 2. The State Government was requisitioning the land for permanent acquisition, which was not permissible under Act II of 1948. 3. The exercise of the power of requisition in a non-urgent case was an abuse of statutory power. 4. The requisition of land for CMDA was not permissible under Act II of 1948, as the Land Acquisition Act, 1894 laid down a special procedure for acquisition of land for CMDA.
Issues: 1. Whether the order of requisition passed under West Bengal Land (Requisition and Acquisition) Act, 1948 has been served upon owners and occupiers of the premises in terms of the Rules framed under West Bengal Land (Requisition and Acquisition) Rules, 1948? 2. Whether the State Government is requisitioning the land along with the existing structures for permanent acquisition and, as such, the power under Act II of 1948 could at all be invoked? 3. If the order of requisition is permissible without hearing in urgent circumstances, the exercise of such power in non-urgent cases will be an abuse of statutory power in view of the decision in Jiwani Kumar Paraki's reported in A. I. R. 1984 S. C. 1707? 4. Whether land with structure can be requisitioned by taking recourse to the provisions of Act II of 1948 for C. M. D. A. as it has been done in the instant case?
Ratio Decidendi: 1. The court interpreted Section 3(1) of Act II of 1948 and held that the order of requisition must be served upon the owners and occupiers of the premises in accordance with the relevant rules. 2. The court interpreted the provisions of Act II of 1948 and held that the State Government could not requisition land for permanent acquisition under the Act. 3. The court relied on the decision in Jiwani Kumar Paraki's case (A. I. R. 1984 S. C. 1707) and held that the exercise of the power of requisition in a non-urgent case was an abuse of statutory power. 4. The court interpreted the provisions of Act II of 1948 and the CMDA Act, 1972, and held that the requisition of land for CMDA was not permissible under Act II of 1948.
Final Decision: The writ petition was allowed, and the order of requisition was quashed by issuance of a Writ in the nature of Certiorari. However, the court clarified that this would not prevent the respondents from proceeding with the matter in accordance with law.
( 1 ) THE present writ petition was moved before this Court on December 11, 1986 challenging the order of requisition passed by the District Magistrate, Howrah in exercise of power under Section 3 (1) of the West Bengal land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as 'act II of 1948' ). By the said order, the writ petitioners were directed to hand over possession to the Executive Engineer, Howrah Improvement Trust on December 11, 1986 at 10 a. m.
( 2 ) AT the admission of the writ petition, this Court directed the respondents to maintain 'status quo' as in December 8, 1976 till December 15, 1976 and further directed the respondents not to take any further step, as stated in the said order. The said interim order was extended in presence of Mr. A. C. Maitra and Mr. Soumitra Judas Gupta, who appeared. for the State, on December 15, 1986 and subsequently Shamsuddin Ahmed, J. on February 17, 1988 allowed the application filed on behalf of Calcutta Metropolitan Development Authority (hereinafter referred to as C. M. D. A. to be added as party respondent, which was moved by Mr. Aloke Chakraborty, learned Advocate and the said application was allowed by His Lordship.
( 3 ) AS the original writ petition was moved with utmost expedition, the writ petitioners could not take comprehensive grounds and at the subsequent stage two supplementary affidavits, dated December 3, 1988 and April 24, 1989 (hereinafter referred to as 'first Supplementary Affidavit' and 'second Supplementary Affidavit') were alarmed.
( 4 ) THIS writ petition was moved on behalf of one Sushila Debi and 12 others, who are all carrying on business at 7 Mukhram Kanoria Road, P. S. Golabari, District - Howrah.
( 5 ) THE facts of the present case, as in the original writ petition and the supplementary affidavits, are as follows: the petitioners who are 13 in number moved the joint writ petition carry on business. The petitioners are all tax payers and pay Municipal Corporation Tax under Section 102 of the Howrah Municipal Act, 1980. The petitioners recently stopped payment of tax after passing of the order of requisition and the petitioners reasonably apprehended that it would be difficult for them to carry on business and for taking recourse t6 this order of requisition, at the instance of Howrah Improvement Trust, the impugned order of requisition has been passed by the learned District Magistrate, Howrah.
( 6 ) ACCORDING to the writ petitioners. The order of requisition has not been served upon the petitioners in accordance with the relevant rules as there is no number of L. A. Case in the said notices and all the notices are without any date whatsoever.
( 7 ) IT is the further case of the petitioners that the landlord in connivance with he authorities caused the notices served with an ulterior motive and in any event it would be difficult to evict the petitioners from the premises in accordance with law. By reason of such order of requisition, the petitioners were sought to be deprived of their life and property except according to the procedure laid down by law. The petitioners also pleaded that Articles 31a and 41 contemplated that all citizens had the right of adequate means of livelihood and the State to secure the citizens.
( 8 ) MR. Saktinath Mukherjee, learned Advocate appearing in support of the writ petitioners and challenging the order of requisition submitted that the impugned order of requisition was passed without due formation of opinion which would be evident from the fact that the purported order of requisition was in respect of Holding No. 7 Mukhram Kanoria Road under Section 3 of Act II of 1948. Different portions of the said holding are in occupation of different persons as tenants and the petitioners are some of whose tenants. Several orders of requisition were issued addressed to different persons. Some of those have been annexed to the supplementary affidavit dated December 12, 1986 and marked
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