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2001 Supreme(Cal) 405
High Court Of Calcutta
A. K. MATHUR, GIRISH CHANDRA GUPTA
JADABENDRA NATH JANA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Appeal From Original Order 965 Of 1996
Decided On : 07/09/2001
Jagabandhu Mondal, KALIPADA MUKHERJI, SUNDARANANDA PAL
1. The enquiry under Rule 4 of the Land Acquisition Companies Rules, 1963, is mandatory and the land owner is entitled to a hearing. 2. An agreement under Section 39 of the Land Acquisition Act, 1894, is a prerequisite before any action for land acquisition can be taken.
Headnote:
LAND ACQUISITION - LAND ACQUISITION ACT, 1894 - SECTIONS 4, 5A, 6, 39 - LAND ACQUISITION COMPANIES RULES, 1963 - RULE 4 - ACQUISITION OF LAND FOR A COMPANY - PROCEDURE - ENQUIRY UNDER RULE 4 - AGREEMENT UNDER SECTION 39 - NECESSITY - OPPORTUNITY OF HEARING TO LAND OWNER - FAILURE TO COMPLY - VITIATION OF ACQUISITION PROCEEDINGS.
Fact of the Case:
The petitioners, owners of land encroached by a cooperative rice mill society, challenged land acquisition proceedings initiated for the benefit of the society. They alleged non-compliance with Rule 4 of the Land Acquisition Companies Rules, 1963, and the absence of an agreement under Section 39 of the Land Acquisition Act, 1894.
Finding of the Court:
The court held that the enquiry under Rule 4 was mandatory and the land owner was entitled to a hearing. It also held that an agreement under Section 39 was a prerequisite before any action for land acquisition could be taken. In the present case, there was no enquiry under Rule 4, no agreement under Section 39, and no opportunity of hearing was given to the petitioners. Therefore, the acquisition proceedings were vitiated.
Issues: 1. Whether the enquiry under Rule 4 of the Land Acquisition Companies Rules, 1963, is mandatory and requires a hearing to the land owner? 2. Whether an agreement under Section 39 of the Land Acquisition Act, 1894, is a prerequisite before any action for land acquisition can be taken?
Ratio Decidendi: 1. The court relied on the judgment in State of Gujarat and another v. Patel Chaturbhai Narsingbhai and others, AIR 1975 SC 629, which held that the enquiry under Rule 4 is mandatory and the land owner is entitled to be heard. 2. The court also relied on the judgment in General Government Servants Co-operative Housing Society Ltd. Agra v. (1) Wahab Uddin and Others, (2) Sobhraj and Others, (3) Kedar Nath and Others, AIR 1981 SC 866, which held that an agreement under Section 39 is a prerequisite before any action for land acquisition can be taken.
Final Decision: The court allowed the appeal, set aside the order of the single judge, and quashed the acquisition proceedings.
( 1 ) THIS appeal is directed against an order dated 12. 3. 1996 passed by the learned single Judge dismissing an application by which Land Acquisition proceedings were challenged. Aggrieved by the order the owners have preferred this appeal. Briefly stated the facts of the case are as follows :
( 2 ) THE writ petitioners are the owners of the subject piece of land. The Patashpore Thana Cooperative Rice Mill Society Ltd. (hereinafter referred to as the company) unlawfully encroached the land belonging to the writ petitioners. The writ petitioners and/or their predecessor-in-interest, for recovery of land from the company, filed a suit being Title Suit No. 165 of 1980. The suit was decreed and execution levied. The company preferred an appeal before this Court which was registered as F. A. No. 305 of 1987. A conditional stay was granted on 27. 8. 1987 by a Division Bench of this Court directing the company to deposit the costs which does not even appear to have been deposited by the company. Therefore the stay of the operation of the decree is no longer there but the appeal is pending.
( 3 ) THE Assistant Secretary to the Government of West Bengal by a letter dated 20. 8. 1980 proposed to the Land Acquisition Collector, Midnapore for acquisition of the said piece of land for the benefit of the said company and directed the latter to initiate acquisition proceedings under Part VII of the Land Acquisition Act for the company and to submit draft notification under section 4 of the Land Acquisition Act together with preliminary inspection report under Rule 4 of the Land Acquisition Company Rules, 1963 for necessary action. A notification under section 4 of the Land Acquisition Act was issued on 13. 3. 1987. By the said notification applicability of section 5a of the said Act was dispensed with in exercise of power reserved under sub-section (4) of section 17 thereof. It appears that declaration under section 6 of the Land Acquisition Act was made on 3. 8. 1987. The writ petitioners challenged the aforesaid acquisition proceedings inter alia on the ground that there has been non-compliance with the provisions of Rule 4 of the Land Acquisition Companies Rules, 1963; no agreement as required under section 39 of the Land Acquisition Act has been entered into. Since there was non-compliance of Rule 4 of the Land Acquisition Companies Rules the writ petitioners were not given any opportunity of hearing. These grounds were however taken in affidavit-in-reply.
( 4 ) THE learned trial Judge in dismissing the writ petition did not avert to the aforesaid grounds at all. It is now well settled that a plea taken in the rejoinder is competent and the Court has to take notice thereof. If any authority is needed we can quote the law laid down by the Apex Court in the case of Srila Sri Subramania Desika Ganasambanda Pandarasnnidi v. State of Madras and Another, reported in AIR 1965 SC 1573, paragraph 17. ?that takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. The reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty and so when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned order was that he had not been given a chance to show cause why the said notification should not be issue. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant
