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2001 Supreme(Cal) 370
HIGH COURT OF CALCUTTA
D. K. Seth, J.
Sankar Das & Ors.
vs.
State of West Bengal & Ors.
W. P. No. 17607 (W) of 1999
Decided On: June 29, 2001
Malay Bose, S. P. Pahari for the petitioner;
D. Roy Chowdhury, J. Dutta for the opposite party.
The expression "any land" in section 27(1) of the West Bengal Industrial Infrastructure Development Corporation Act, 1974 includes all kinds of land, including land declared as an industrial area or industrial estate, and the declaration of an industrial area or industrial estate under sections 2(8) and 2(10) of the 1974 Act is not a precondition for the exercise of power under section 27(1) of the 1974 Act.
Headnote:
LAND ACQUISITION - WEST BENGAL INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION ACT, 1974 - SECTION 27 - ACQUISITION OF LAND - JURISDICTION - DECLARATION OF INDUSTRIAL AREA OR INDUSTRIAL ESTATE - NECESSITY - PURPOSE OF ACQUISITION - DEVELOPMENT OF COMMERCIAL COMPLEX - VALIDITY - NOTICE TO PERSONS INTERESTED - SERVICE - WAIVER AND ESTOPPEL - ACQUISITION UNDER SECTION 27(1) - DISTINCTION FROM ACQUISITION UNDER SECTION 4 OF THE LAND ACQUISITION ACT, 1894 - COMPARATIVE INTEREST OF PARTIES - COMPENSATION - WAIVER OF RIGHT - ESTOPPEL - WRIT PETITION - DISMISSAL.
Fact of the Case:
Petitioner challenged the acquisition of their land under section 27 of the West Bengal Industrial Infrastructure Development Corporation Act, 1974 (1974 Act). Petitioner contended that the acquisition was without jurisdiction as the area was not declared an industrial area or industrial estate as required by sections 2(8) and 2(10) of the 1974 Act. Petitioner also contended that the land was acquired for a purpose other than those mentioned in section 2(10) of the 1974 Act, that the acquisition was invalid due to non-service of notice on the petitioners, and that the acquisition could not be resorted to by reason of section 66 of the Town and Country (Planning and Development) Act, 1979 (1979 Act).
Finding of the Court:
The Court held that section 27(1) of the 1974 Act empowers the State Government to acquire any land for the purpose and development of the corporation or in any other purpose in furtherance of the objects of the Act, and that the expression "any land" includes all kinds of land, including land declared as an industrial area or industrial estate. The Court further held that the land was acquired for the purpose of construction of a commercial complex, which is a purpose within the scope and ambit of the 1974 Act, and that the declaration of an industrial area or industrial estate under sections 2(8) and 2(10) of the 1974 Act is not a precondition for the exercise of power under section 27(1). The Court also held that the petitioners had waived their right to object to the acquisition by claiming compensation through their counsel and by not objecting to the acquisition after the publication of the notice under section 27(3), and that the non-service of notice on the petitioners did not invalidate the acquisition. The Court further held that the acquisition under section 27(1) is distinct from the acquisition under section 4 of the Land Acquisition Act, 1894, and that the petitioners were not entitled to a hearing before the acquisition. The Court also held that the comparative interest of development is greater than that of the petitioners, and that the petitioners could be adequately compensated in monetary terms.
Issues: 1. Whether the acquisition of land under section 27 of the 1974 Act is valid without a declaration of industrial area or industrial estate under sections 2(8) and 2(10) of the 1974 Act. 2. Whether the acquisition of land for the purpose of construction of a commercial complex is valid under the 1974 Act. 3. Whether the non-service of notice on the petitioners invalidates the acquisition. 4. Whether the acquisition under section 27(1) of the 1974 Act is distinct from the acquisition under section 4 of the Land Acquisition Act, 1894. 5. Whether the comparative interest of development is greater than that of the petitioners and whether the petitioners can be adequately compensated in monetary terms.
Ratio Decidendi: 1. The expression "any land" in section 27(1) of the 1974 Act includes all kinds of land, including land declared as an industrial area or industrial estate. 2. The declaration of an industrial area or industrial estate under sections 2(8) and 2(10) of the 1974 Act is not a precondition for the exercise of power under section 27(1) of the 1974 Act. 3. The acquisition of land for the purpose of construction of a commercial complex is a purpose within the scope and ambit of the 1974 Act. 4. The non-service of notice on the petitioners did not invalidate the acquisition, as the petitioners had waived their right to object to the acquisition by claiming compensation through their counsel and by not objecting to the acquisition after the publication of the notice under section 27(3). 5. The acquisition under section 27(1) of the 1974 Act is distinct from the acquisition under section 4 of the Land Acquisition Act, 1894, and the petitioners were not entitled to a hearing before the acquisition. 6. The comparative interest of development is greater than that of the petitioners, and the petitioners could be adequately compensated in monetary terms.
Final Decision: The writ petition was dismissed. The Court refused to stay the operation of the order.
D. K. Seth, J.: The petitioner has challenged the acquisition of the petitioners land under section 27 of the West Bengal Industrial Infrastructure Development Corporation Act, 1974, hereinafter referred to as the 1974 Act or the said Act. Mr. Malay Bose, learned counsel for the petitioner contended that the acquisition of the said land in exercise of section 27 of the Act is wholly without jurisdiction. Inasmuch as land can be acquired under section 27 only when the area is declared industrial estate as defined under section 2 sub-section (10) of the said Act. He contends that such land cannot be acquired by the said corporation without the area being declared industrial area within the meaning of section 2(8) of the said Act. According to him no notification has ever been issued by the State Government either under sub-section (10) or under subsection (8) of section 2 of the said Act. He further contended that such declaration under section 2(10) or under section 2(8) has to precede the acquisition and not follow. The second contention that was raised by him was that even if assuming but not admitting such a notification was issued, in the present case the land having been acquired for the purpose other than mentioned in section 2(10), such notification would be invalid. Therefore, the purpose for which the land has been acquired being something other than purpose mentioned in section 2(10), section 27 of the said Act could not have been resorted to. The third contention raised by him was that the land could not be acquired by reason of section 66 of the Town and Country (Planning and Development) Act, 1979 hereinafter referred to as the 1979 Act, inasmuch as the 1979 Act does not prescribe for acquisition of any land. The 1979 Act is only a regulatory Act it does not provide for acquisition of any land. His 4th contention is that the corporation cannot resort to provisions of 1979 Act for acquiring any land since the 1979 Act does not postulate acquisition of land by any other authority. It only postulate acquisition of land for the purpose of implementation of the Development Scheme under the 1979 Act by the authority constituted under the said 1979 Act for which such authority has to apply to the State Government and then the State Government would empower the such authority to enter into such land, for executing such work and take possession by a notification that might be issued by the State Government. In the present case, the land has not been acquired for any purpose for which land could be acquired by a Development Authority under section 66. His 5th contention is that no notice was ever served upon the petitioners. He further contends by means of a supplementary affidavit that the alleged representation made on behalf of the petitioners was wholly without instruction. The petitioners' names were included in the said notice at the behest of the owners of the land therefore, the contents of the said representation does not bind the petitioners. In the circumstances the petition should be allowed and the purported acquisition should be quashed.
2. Mr. Debabrata Roy Chowdhury, learned counsel appearing on behalf of the respondent Nos. 3 and 4 on the other hand contends that the land was acquired in exercise of section 27 of the 1974 Act. It is not necessary that for the purpose of acquisition the area is to be declared an industrial area within the meaning of section 2(8) of the said Act or an industrial estate within the meaning of section 2(10) of the said Act. Inasmuch as section 27 does not qualify the expression "land" used in the said section. On the other hand, it uses the expression "any land". Thus, "land" qualified by the expression" "any" includes all kinds of land. It does not necessitate that such land shall be a land within the meaning of sections 2(8) and 2(10). He then contends that the area in which the land falls is already included in the outline development plan for Haldia 1989-2001 published
