Back
1988 Supreme(Cal) 350
High Court Of Calcutta
Paritosh Kumar Mukherjee
TANDON BROS. - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. 10642 Of 1986
Decided On : 08/26/1988
ANWAR HUSSAIN, GOBINDA BHATTARCHARYYA, MANJURI GUPTA, RANJIT KUMAR BANERJEE, SADANANDA GANGULY, SURATHI MOHAN SANYAL
The Order of requisition cannot continue indefinitely without acquiring the property. If the public purpose for which the premises are required is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely.
Headnote:
WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTION 6 (3) - REQUISITIONING AND ACQUISITION OF IMMOVABLE PROPERTY ACT, 1952 - SECTION 7 (1) - The Court held that the Order of requisition cannot continue indefinitely without acquiring the property. If the public purpose for which the premises are required is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely.
Fact of the Case:
The petitioner, a registered partnership firm and proprietor of Rohini Tea Estate, challenged the impugned order passed by the Deputy Secretary to the Government of West Bengal, dated December 15, 1977, under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, and the inaction of the authorities concerned in not taking steps for acquisition of the land mentioned in the notice under Section 7 (1) of the Requisitioning and Acquisition of Immovable Property Act, 1952.
Finding of the Court:
The Court held that the impugned order passed under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, was mala fide and for collateral purpose. The Court also held that the Order of requisition cannot continue indefinitely without acquiring the property. If the public purpose for which the premises are required is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely.
Issues: 1. Whether a proceeding under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, is available to the State Government when the tea estate is under the purview of the Order of requisition? 2. Whether the petitioner is a 'post vesting transferee'? 3. Whether the instant proceeding under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, is in the nature of review and if so, whether there is any material before the State Government for taking such action and/or review? 4. Whether the instant proceeding under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, is bona fide and whether the State Government has acted in legal malice? 5. Whether there was any application of mind by the authorities concerned?
Ratio Decidendi: 1. The Court held that the decision in Dhanagopal Mukherjee v. State of West Bengal, AIR 1966 Calcutta 348, is applicable in full force in the facts of the present case. The Court held that it is the duty of the Central Government to de-requisition the property first and restore it to the possession of the petitioner and it would be an act of gross illegality, on the part of the Central Government to pass on the property to the State Government and such illegality would be presumed to support the impugned act of the State Government. 2. The Court held that the plea of 'post vesting transferee' submitted on behalf of the respondent does not hold good, in the instant case, as Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, starts with a 'non obstante clause' "notwithstanding anything contained in Sections 4 and 5 and Section 6 (1) (f) of the Act speaks subject to provision of Section 3, land, comprised in tea gardens or orchards or land used for the purpose of livestock breeding, poultry, farming or dairy". 3. The Court held that the subsequent proceedings is in the "nature of review" and there is no material on record to show that 'such review' is needed for the purpose of exercise of power under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, and could be available to the State Government. As such, the Court held that such review is not permitted. 4. The Court held that the impugned order passed under Section 6 (3) of the West Bengal Estates Acquisition Act, 1953, was mala fide and for collateral purpose. 5. The Court held that there was no application of mind by the authorities concerned.
Final Decision: The Court allowed the first writ petition by setting aside the impugned order passed by the Deputy Secretary to the Government of West Bengal, dated December 15, 1977, which is Annexure "e" of the writ petition. The Court also allowed the second writ petition by issuing a Writ in the nature of Mandamus against the Union of India, Deputy Director, Military Land and Cantonments, Eastern Command (ML and C) Fort William, Calcutta, being respondent No. 6 and other appropriate Authorities by commanding them to take steps for acquisition of the property in respect of "rohini Tea Estate", which is continuing under the purview of requisition, either under the Defence of India Act and Rules and/or the Act of 1952, forthwith.
( 1 ) THESE two writ petitions filed on behalf of the petitioner, Messrs. Tandon Brothers, involve determination of identical questions of fact and law and the reliefs made in the second writ petition are dependent upon adjudication of the earlier proceedings, and as such, the hearing of these two writ petitions is taken up together, by "consent of parties. "
( 2 ) THE Civil Rule No. 13128 (W) of 1979 was moved on September 13, 1979, before Sabyasachi Mukharji, J (as His Lordship then was) inter alia, praying for the following reliefs:" (A) to issue a writ in the nature of Mandamus commanding the respondents from not giving any effect or further effect of the impugned Order, dated 15th December 1977, Annexure "e". (b) to issue a writ in the nature of Certiorari directing the respondents to produce the records of the case so that on perusal of such records the impugned order, dated 15th December 1977 (Annexure E) may be set aside and quashed and/or conscionable justice may be done between the parties. (c) to issue a writ in the nature of Prohibition prohibiting the respondents to take any action of the impugned Order, dated 15th December 1977 (Annexure D ). (d) to issue a Rule Nisi in terms of prayers (a), (b) and (c) above. (e) after hearing the causes shown if any to make the rule absolute. (f) to pass such other or further Order or Orders as to your Lordships may seem fit and proper. (g) to pass any other appropriate Writ, Order and/or erection. (h) to grant interim injunction restraining the respondents and their servants or agents to make effort to transfer of the lands from the date of passing of the Order under Section 6 (3) of the West Bengal Estates Acquisition Act to the Union of India till the disposal of the Rule. "
( 3 ) THE second writ petition, which was moved on September 4, 1986, being C. O. 10642 (W) of 1986, the petitioner firm prayed, inter alia for the following reliefs :" (A) to issue a Writ in the nature of Mandamus commanding the Respondents to de-requisition the lands not covered under Notice under Section 7 (1) of the Requisitioning and Acquisition of Immovable Property Act, 1952; (b) to issue a Writ in the nature of Mandamus commanding the Respondents concerned to acquire the property covered under Notice under Section 7 (1) of the Requisitioning and Acquisition Immovable Property Act, 1952; (c) to issue a Writ in the nature of Certiorari directing the respondents concerned to produce the records, the Order and/or notice of Requisition (Annexure A) and the Notice of Acquisition (Annexure C) may be set aside, quashed and/or a conscionable justice may be done between the parties. (d) to a Rule Nisi in terms of prayers (a), (b) and (c) above (e) to issue any other Writ, Order and/or direction; (f) after hearing the causes, shown, if any, to make the Rule absolute, (g) to pass such Order or further Order or Orders as to your Lordship may seen fit and proper. "however, it appears that the above prayers (cc) and (ccc) were amended as per Order of the Court, dated April 18, 1988.
( 4 ) THE facts of the cases are as follows: the petitioner is a registered partnership firm and proprietor of the "tea Estate", known as "rohini Tea Estate" which has been purchased by the petitioner on or about January 30, 1960, in a public auction held by the Official Liquidator, High Court, Calcutta. The said Tea Estate comprised of a total area of 5,042. 86 acres of land, including 1100 acres of land under Tea cultivation and consists of several Mouzas of free-hold and lease-hold lands held under the Government of West Bengal. At the time of purchase of the said Tea Estate, there was no machinery or equipment existing therein and after purchase of the said Tea Estate, the petitioner invested a sum of Rs. 10,00,000 for purchase of machinery and equipment and for clearing jungles and making the Tea Estate fit for cultivation. On or about November 1, 1962, a notice under Section 6 (3) of the West Ben
