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HIGH COURT OF CALCUTTA
SINHA, J.
Nader Chand Mallick
Versus
State of W.B.
Civil Revn. Case No. 845 of 1951
Decided On : 19-06-1951
LAND ACQUISITION - LAND ACQUISITION ACT, 1894 - SECTIONS 11, 12, 16 - AWARD - NOTICE - POSSESSION - INTERPRETATION OF STATUTORY PROVISIONS - EFFECT OF NON-COMPLIANCE WITH STATUTORY PROCEDURE.
Fact of the Case:
The petitioner challenged the order of the Special Land Acquisition Collector, Hooghly, directing the taking of possession of a piece of land for the extension of a Maternity Home and Child Welfare Centre. The petitioner argued that the provisions of Sections 11 and 12 of the Land Acquisition Act, 1894, were not complied with, rendering the award of the Collector bad and preventing the taking of possession under Section 16.
Finding of the Court:
The court held that the provisions of Sections 11 and 12 of the Land Acquisition Act, 1894, were not mandatory and that non-compliance with the procedure laid down by these sections did not invalidate the award of the Collector. The court further held that the taking of possession under Section 16 was not conditional upon the service of notice under Section 12(2) and that the Collector was entitled to take possession of the land immediately upon making the award.
Issues: 1. Whether the provisions of Sections 11 and 12 of the Land Acquisition Act, 1894, were mandatory and whether non-compliance with the procedure laid down by these sections invalidated the award of the Collector. 2. Whether the taking of possession under Section 16 was conditional upon the service of notice under Section 12(2).
Ratio Decidendi: 1. The court interpreted Sections 11 and 12 of the Land Acquisition Act, 1894, and held that they were not mandatory. The court reasoned that the inquiry under Section 11 was a preliminary step to the making of the award and that there was no requirement that the award be made then and there in the presence of the petitioner or his representative. The court also held that the notice under Section 12(2) was for the benefit of the public and not the objector and that the award was not vitiated if not given immediately. 2. The court interpreted Section 16 of the Land Acquisition Act, 1894, and held that the taking of possession was not conditional upon the service of notice under Section 12(2). The court reasoned that the question of acquiring the land had become final and that the only thing that could happen now was to refer the objection to Court (If the petitioner so requires). The court also held that the taking of possession had not been made conditional upon payment of the compensation.
Final Decision: The court discharged the rule issued to show cause why writs in the nature of Certiorari, Mandamus, and Prohibition should not be issued to restrain the respondents from giving effect to the order of the Special Land Acquisition Collector, Hooghly.
2. The facts are briefly as follows :
The petitioner is the owner of a plot of land situated at Hooghly, bearing C.S. Dag No. 1121 of Mouza Hooghly, p. s. Chinsurah District Hooghly. This plot of land is vacant and adjoins the above-mentioned Public Institution. The said institution urgently requires land for extension of staff quarters and improvement of the clinic and this plot has been acquired under the Land Acquisition Act, and the order complained of, is an order for taking possession of the land in order to vest it in the acquiring authority and then to make it over to the said institution.
3. The petitioner purchased this land in 1933. He has not built any structure on it, although the has considerably improved it by levelling, fencing etc. He says that the ancestral house of his family adjoins the plot and although he lives there now with his brothers, the house itself has been allotted to his brothers, the idea being that he should have this plot for building a house for himself. According to him, he could not build a house because of the scarcity of building materials, but he has not abandoned the intention of doing so. By Notification No. 10286 L.A. dated 30-11-1949, published in the Calcutta Gazette dated 8-12-1949, under S. 4, Land Acquisition Act, it was duly notified that the land was likely to be acquired for extension of the Staff Quarters and improvement of the King George V Silver Jubilee Maternity Home and Child Welfare Centre, and all persons interested were requested to file their objections before the Special Land Acquisition Collector, Hooghly. The petitioner duly filed his objection under S. 5A, Land Acquisition Act. After hearing his objections, and making necessary enquiries, it was decided that the acquisition should be made. I myself cannot think of a more deserving object for acquiring land by the State than for the extension of a Maternity Home and Child Welfare Centre; and no fact has been placed before me to show that the decision by the Land Acquisition Collector was wrong. The real ground upon which the petitioner bases his application is that the provisions of Ss. 11 and 12 of the Act were not complied with. It is argued that non-compliance with the procedure laid down by these sections has made the award of the Special Land Acquisition Collector dated 10-4-1951, bad, and as such, no possession could be taken under S. 16.
4. To appreciate the objection, it is necessary to recapitulate the procedure which is followed under the Land Acquisition Act I (1) of 1894, for the acquisition of lands. Whenever it appears to the Provincial Govt. that land in any locality is needed for a public purpose, a notification to that effect must be given in the official Gazette and the Collector must also cause public notice of the substance of such notification to be given at convenient places in the locality. It is for the provincial Govt. to decide what is a Public Purpose, - Wijeyesekera v. Festing, (1919) AC 646. Province of Bombay v. Khusaldas Advani, AIR (37) 1950, SC 222. After these preliminary steps have been taken, it becomes lawful for the officers to the Govt. to enter and survey the land; and to take all necessary steps to find out whether the land is really adapted for the purpose. (S. 4).
5. Any person interested in the land can thereupon apply to the Collector under S. 5A, objecting to the acquisition, and the Collector must thereupon give the objector an opportunity of being heard. After hearing such objections, he makes his report
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