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Case Number

F.M.A.T No. 270 of 1982

Attorney(S)

Somen Bose; Paritosh Kr. Mukherjee and Ashis Roy
Sadhan Gupta
Addl. Advocate General and Amaresh Chakraborty
Dipankar Gupta
Mrs. Ruma Pal and Suchit Kumar Banerjee
for Calcutta Electric Supply Corporation Ltd

Judges

M.M Dutt
Monoj Kumar Mukherjee, JJ.

Acts

S. 3(1) of the West Bengal Land (Requisition and Acquisition) Act II of 1948, hereinafter referred
Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948, as follows:(3).
S. 18-AA(1) of the Industries Development and Regulation Act, 1951
clause (11) of Section 5 of the Calcutta Municipal Act, 1951,
LAND ACQUISITION ACT
SECTION 17 LAND ACQUISITION ACT
Sec. 4 of the Land Acquisition Act, 1894
sub-section (1) of Section 3
provision in Section 3(1)
Rule 3(1)(a) of the Rules,

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Smart Summary

Structured Summary of the Opinion (Calcutta High Court)

Factual and Procedural Background

The appellants, Nilkamal Bez Boruah and Smt. Sushila Bez Boruah, challenged an order of requisition made under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, II of 1948 by filing a writ petition under Article 226 of the Constitution. The learned Judge below (B.C. Ray, J.) discharged the Rule Nisi issued on the appellants' application; the present appeal arises from that decision.

The factual matrix as presented in the opinion (and not supplemented here) is: the appellants claimed joint purchase (1952) and later partition by consent (January 7, 1980) of premises No. 2, Park Lane, Calcutta. Earlier land acquisition proceedings under the Land Acquisition Act (notification June 20, 1979) for the same premises had been pursued (for an "Urdu Academy"); the appellants objected under Section 5A and were heard. The acquisition proceedings, however, were cancelled/abandoned by Government order dated July 10, 1981 (as per a lawyer's letter of October 26, 1981).

On October 16, 1981 the First Land Acquisition Collector issued an order under Section 3(1) of the West Bengal Requisition Act requisitioning the premises for establishing a power distribution system (responding to a need identified by the Calcutta Electric Supply Corporation). The appellants allege non-service, lack of prior hearing, pendency of acquisition proceedings, absence of formation of opinion by the Collector and mala fides. The appellants filed their writ petition on October 30, 1981; the trial judge dismissed the challenge to the requisition order and discharged the Rule Nisi, prompting this appeal.

Legal Issues Presented

Whether the impugned order under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act was validly served on the appellants (including the appellant No. 2, alleged to be divorced).
Whether the pendency (or alleged pendency) of prior land acquisition proceedings barred making a requisition under Section 3(1) of the Requisition Act.
Whether the State/Collector was required to give a prior hearing to the owner/occupier before issuing an order of requisition (i.e., compliance with principles of natural justice).
Whether the Collector formed an independent opinion as required by Section 3(1) before issuing the requisition order, or whether he merely acted on Government direction.
Whether requisitioning land at the instance of a company/corporation (here Calcutta Electric Supply Corporation Ltd.) was permissible under the Act.
Whether the requisition order was mala fide or constituted malice in law vitiating the order.

Arguments of the Parties

Appellants' Arguments

The impugned order was not served on appellant No. 2 (and initially the writ alleged non-service on both appellants).
The land acquisition proceedings for the premises were pending (or at least the appellants were unaware of their final fate), and a requisition during such pendency was impermissible.
No prior hearing was afforded; principles of natural justice required notice and an opportunity to be heard before an order of requisition was passed.
The Collector did not form the requisite independent opinion; instead he acted on directions from the State Government (reliance upon a July 16, 1981 government letter was emphasised).
The requisition was mala fide and/or made for the benefit of a corporation (Calcutta Electric Supply Corporation Ltd.), which the appellants argued was not an appropriate object of requisition under the Act.
There was no urgency justifying requisition; acquisition under the Land Acquisition Act would have been the proper remedy if urgency were absent.

Respondents' Arguments

The order was duly served in the prescribed manner: the process-server affixed the order at the appellant No. 1's residence after he was not found and also affixed a copy at the requisitioned premises after the durwan refused to accept service; the durwan thereby functioned as agent for service.
The land acquisition proceedings had been cancelled/abandoned before the requisition and the requisition proceeded lawfully thereafter.
There existed an urgent public need for a primary power distribution station in the Park Street area; repeated attempts at purchase having failed (on the appellants' conduct), the Calcutta Electric Supply Corporation and the Government acted under the Requisition Act to obtain possession promptly.
The First Land Acquisition Collector inspected the premises and formed his own opinion before issuing the requisition order; the Government's request was not a directive that displaced the Collector's independent decision-making.
Requisition for the purposes enumerated in Section 3(1) is permissible even if effected at the instance of a company or corporation; the key question is the purpose, not the identity of the private entity referring the matter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818	Whether the opinion/satisfaction of Government about necessity of immediate action (analogy drawn with Section 18-AA(1) of IDR Act) is subject to judicial review (analogy with Section 17 of Land Acquisition Act).	The court distinguished Swadeshi: it held Swadeshi (and Section 17 context) not helpful because Section 3(1) of the Requisition Act does not contain a condition precedent of urgency as Section 17 does; thus the analogy does not support appellants' claim that urgency is justiciable in the same manner.
S.M. Nandy v. State of West Bengal, AIR 1971 SC 961	Considered whether the Act requires notice/hearing before an order of requisition; observed there is no express provision for pre-order representation but representations after service may be entertained.	The court regarded S.M. Nandy as directly in point and followed it: holding that the Act does not contemplate a prior hearing before the making of a requisition order, and that representations can be made after service.
Smt. Sushila Devi Fomra v. State of West Bengal, (1980) 2 Cal LJ 19	Local (Calcutta) decision which considered similar contentions under the Act and applied S.M. Nandy and authorities on natural justice to the Requisition Act.	The court stated it had considered Fomra and felt bound by it; relied on its reasoning that the Requisition Act does not require a prior hearing before requisition.
Madan Gopal v. District Magistrate, Allahabad, AIR 1972 SC 2656; Daud Ahmad v. District Magistrate, Allahabad, AIR 1972 SC 896; Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 697; Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851	Authorities cited by appellants in support of a broader and expanded field for the application of principles of natural justice.	The court noted these decisions were relied upon by appellants and were considered in Fomra's case; the court nonetheless held that, as to the Requisition Act, these authorities do not require a conclusion that a prior hearing is mandated by the Act.

Court's Reasoning and Analysis

The court proceeded through the principal challenges in structured fashion and limited itself to the facts and materials placed on record:

Pendency of prior acquisition proceedings: The court found that assertions in the writ about uncertainty as to whether acquisition had been abandoned were refuted by a lawyer's letter (October 26, 1981) citing Government order No. 7922-LA (II) IS. 179 dated July 10, 1981 cancelling and abandoning the earlier acquisition. The court held that this fact by itself made the writ petition liable to be dismissed on that ground alone, although it proceeded to examine other grounds raised.
Service of the order: The court examined Rule 3 of the Requisition Rules (modes of service). It accepted the respondents' account that the process-server affixed the order at the appellant No. 1's residence after failing to find him and that the order was tendered to (and refused by) the durwan at the requisitioned premises. Treating Sitaram Singh (the durwan) as the authorised agent for receipt of communications, the court held that service on the durwan under Rule 3(1)(a) amounted to good service on both appellants and overruled the contention that appellant No. 2 had not been served.
Urgency and justiciability: The appellants argued urgency was a condition for requisitioning and therefore justiciable; they relied on Swadeshi Cotton Mills. The court contrasted Section 17 of the Land Acquisition Act (where urgency is a condition precedent and thus justiciable) with Section 3(1) of the Requisition Act (which contains no such statutory condition). The court held Swadeshi was not helpful to the appellants. Independently, on the facts, the court found there was urgency at the time of requisition — exacerbated by the appellants' failure to complete an agreed sale — and therefore even if urgency were judicially examinable, the record showed urgency justified requisition.
Mala fides and purpose of requisition: The court rejected the contention that the requisition was mala fide or vitiated by malice in law, noting that requisition may be made to serve public purposes enumerated in Section 3(1). The court also ruled that requisition at the instance of a company/corporation is permissible provided the requisition is for a purpose falling within Section 3(1).
Formation of opinion by the Collector: The court addressed the contention that the Collector acted merely on Government direction (citing a July 16, 1981 letter). It found (from the respondents' application and the Collector's affirmation) that the First Land Acquisition Collector inspected the premises and formed his own opinion that the site was suitable for a distribution centre; therefore the Collector satisfied the requirement of forming an opinion under Section 3(1).
Principles of natural justice (prior hearing): The court relied on S.M. Nandy and its own earlier Fomra decision which followed S.M. Nandy to hold that the Requisition Act does not either expressly or by necessary implication require notice and a hearing before an order of requisition is made; representations could be made after service and considered. Accordingly, the absence of a prior hearing did not invalidate the requisition order.
Conduct of the appellants (clean hands): The court took into account the appellants' conduct — specifically, that they had failed to complete sale negotiations with the Calcutta Electric Supply Corporation after the price and draft agreement had been agreed — and held that this conduct disentitled them to equitable relief under Article 226.

Holding and Implications

Holding: The appeal is dismissed and the order of requisition under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act is upheld. There will be no order as to costs. The request for a stay of the judgment was refused (the Calcutta Electric Supply Corporation gave an undertaking not to demolish any structure for three weeks, and the court saw no need to stay the judgment for that period).

Implications:

Direct effect: The impugned order of requisition remains valid and operative; the Rule Nisi previously issued was discharged and the appellants' writ petition is dismissed.
No new precedent: The court expressly followed existing authorities (notably S.M. Nandy and the Calcutta decision in Fomra) and distinguished Swadeshi; the judgment does not purport to create or depart from existing constitutional or statutory principles beyond applying the cited authorities to the facts.
Practical consequence for parties: The Calcutta Electric Supply Corporation and the State may proceed in accordance with the requisition order; the appellants' arguments on service, formation of opinion, urgency, mala fides and absence of prior hearing were all rejected on the record presented.

Note: This summary is strictly limited to the information contained in the provided opinion and does not add facts or interpretations beyond that material.

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Dr. Nilkamal Bez Boruah And Another v. The State Of West Bengal And Others

M.M Dutt, J.:— In this appeal the appellants, Nilkamal Bez Boruah and his wife Smt. Sushila Bez Boruah, alleged to have been divorced, have preferred this appeal against the judgment of B.C Ray, J., (AIR 1982 Cal 180) whereby the learned Judge discharged the Rule Nisi issued on the application of the appellants under Article 226 of the Constitution, challenging an order of requisition under S. 3(1) of the West Bengal Land (Requisition and Acquisition) Act II of 1948, hereinafter referred to as the Act.

2. The appellants claimed to have purchased the premises No. 2, Park Lane Calcutta on or about August 9, 1952, with their joint funds. The appellant No. 2, the first wife of the appellant No. 1 is alleged to have been divorced in 1954 by a decree of divorce of the High Court at Madras. It is alleged that on January 7, 1980 by a consent decree passed in Title Suit No. 1940 of 1979, the said premises No. 2, Park Lane, Calcutta was partitioned by metes and bounds between the appellants. Thereafter, by an order dated September 13, 1980 of the Corporation of Calcutta the name of the appellant No. 2 in respect of her half share in the said premises was mutated. The case of the appellants is that there are three rooms in the said premises measuring 30′ × 30′ and there is an office accommodation of the appellant No. 1. A wholetime durwan of the appellant No. 1 has been residing in one of the said rooms.

3. On May 19, 1978, a negotiation started between the appellant No. 1 and the Calcutta Electric Supply Corporation Limited for the sale of the said premises No. 2, Park Lane, Calcutta. After the price was settled, a draft agreement for sale was prepared and sent by the appellant No. 1 to the Calcutta Electric Supply Corporation, but the sale was not effected. It is alleged that on account of the adamant attitude of the Calcutta Electric Supply Corporation, the sale did not materialise.

4. It appears that a notification dated June 20, 1979 was issued under Sec. 4 of the Land Acquisition Act, 1894 for the acquisition of the land and building of the said premises No. 2, Park Lane, Calcutta for the construction of a house for an institution known as “Urdu Academy”. The appellants filed an objection in writing under Section 5A of the Land Acquisition Act, and they were also heard. It has been specifically averred in the writ petition that the appellants were not aware of the final fate of the land acquisition proceedings, namely, whether the same were abandoned or cancelled. It is alleged that no information either from the office of the Land Acquisition Collector or from the Deputy Secretary, Land and Land Revenue Department has ever been communicated to the appellant No. 1.

5. It is the case of the appellants that during the pendency of the said Land acquisition proceedings the impugned order of requisition dated October 16, 1981 was passed by the First Land Acquisition Collector, under S. 3(1) of the Act requisitioning the land with building measuring 0.2627 acre comprised in the said premises No. 2, Park Lane, Calcutta “for a public purpose for maintaining supplies and services essential to the life of the community by the establishment of a power Distribution System”. It is alleged that the said order under Section 3(1) of the Act was not served on the appellants. The case of the appellants is that the appellant No. 1 was in Madras from October 7, 1981 to October 22, 1981, for medical check-up. He received an information from his durwan through a telegram dated October 19, 1981. Upon receipt of the information, the appellant No. 1 returned from Madras on. October 22, 1981 and came to know for the first time from his durwan, Sitaram Singh that “an order had been handed over op the Ration Shop on or about October 16, 1981 at 8 P.M”, and that on October 17, 1981 some persons, claiming themselves to be the employees of the Calcutta Electric Supply Corporation had broken open the lock of the main gate of the said premises No. 2, Park Lane, Calcutta at about 11 A.M and had driven out the durwan by physical force. The office premises was also broken open, but the durwan was permitted to reside in the office premises. After service of a lawyer's letter dated October 26, 1981, demanding justice from the First Land Acquisition Collector who issued the said order under Section 3(1) of the Act, the appellants filed a writ petition in this Court on October 30, 1981 and, as stated already a Rule Nisi out of which this appeal arises, was issued.

6. At the hearing of the Rule Nisi before the learned Judge, the legality of the impugned order under Sec. 3(1) of the Act was challenged on the grounds of — (1) non-service of the order under Section 3(1) of the Act, (2) pendency of the said land acquisition proceedings, (3) non-compliance with the principles of natural justice by not giving a hearing to the appellants before the impugned order was passed and (4) absence of formation of opinion by the Collector as required under Section 3(1) of the Act.

7. The learned Judge, after considering the facts and circumstances of the case and the submissions made on behalf of either party, overruled all the aforesaid grounds challenging the legality of the impugned order and die-charged the Rule Nisi. Hence this appeal.

8. It appears from the writ petition and also from the judgment of the learned Judge that the appellants complained that during the pendency of the said land acquisition proceedings initiated for the acquisition of the said premises No. 2, Park Lane, Calcutta for the purpose of constructing a house for the Urdu Academy, the impugned order of requisition was passed. It has been averred in some of the paragraphs of the writ petition that the appellants were not aware of as to what had happened to the said land acquisition proceedings whether the same were abandoned or not. That these statements in the writ petition are untrue is apparent on the face of the letter dated October 26, 1981 of Mr. Asish Roy, Advocate demanding justice from the First Land Acquisition Collector. In Paragraph 4 of the said letter, it has been categorically stated that “by order No. 7922-LA (II) IS. 179 dated July 10, 1981, the said land acquisition proceedings were cancelled and abandoned by the Deputy Secretary, Government of West Bengal, Land and Land Reforms Department, Writers' Buildings, Calcutta-1”. Thus it appears that the averments made in the writ petition that the appellants were not aware of as to whether the land acquisition proceedings were abandoned or not is untrue. The appellants also relied on the alleged pendency of the land acquisition proceedings as one of the principal grounds for challenging the validity of the impugned order under Sec. 3(1) of the Act. The learned Judge had to deal with the said ground at length but, ultimately, overruled the same. In our opinion, on this ground alone the writ petition, is liable to be dismissed. Be that as it may, as much arguments have been made on behalf of the appellants on the merits of the case, we propose to consider the same.

9. The first point that has been urged by Mr. S.C Bose, learned Counsel appearing on behalf of the appellants is that the impugned order under Section 3(1) of the Act not having been served on the appellant No. 2, the alleged divorced wife of the appellant No. 1, it is illegal. In the writ petition, however, the appellants' case was that the impugned order was not served on both the appellants, but at the hearing before us the learned Counsel for the appellants had urged that the impugned order was not served on the appellant No. 2 only. It has been submitted by him that he will not be in a position to say that the impugned order was not served on the appellant No. 1, Sub-section (2) of Section 3 of the Act provides that an order under sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier, not being the owner of the land, also on such occupier. Thereafter, sub-sec. (3) provides as follows:

“(3) If any person fails to comply with an order made under sub-sec. (1), the Collector or any person authorised by him in writing in this behalf shall execute the order in such manner as he considers expedient and may,—

(a) if he is a Magistrate, enforce the delivery of possession of the land in respect of which the order has been made to himself, or

(b) if he is not a Magistrate, apply to a Magistrate or; in Calcutta, as defined in clause (11) of Section 5 of the Calcutta Municipal Act, 1951, to the Commissioner of Police and such Magistrate or Commissioner, as the case may be, shall enforce the delivery of possession of such land to him”.

The manner of service has been prescribed by Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948, as follows:

“(3). The manner of service of Order — An order under sub-section (1) of Section 3 shall be served on the owner of the land and where the order relates to land in occupation of an occupier not being the owner of the land, also on such occupier—

(a) by delivering or tendering a copy thereof, endorsed either by the person authorised by the Act to make the order or by the Collector to the person on whom the order is to be served or his agent, or

(b) by fixing a copy thereof on the outer door of some conspicuous part of the house in which the person on whom the order is to be served ordinarily resides or carries on business or personally works for gain, or

(d) by fixing a copy thereof in some conspicuous part of the land to which the order relates and also in dome conspicuous place of the office of Collector”.

The case of the respondents Nos. 1, 2 and 3 including the State of West Bengal and the First Land Acquisition Collector, Calcutta as pleaded in their application for vacating the interim order before the learned Judge is that the process server of the office of the First Land Acquisition Collector went to the residence of the appellant No. 1 at 60, Lake Place, Calcutta for the purpose of serving the impugned order on him on October 16, 1981, but the appellant No. 1 was found not available and, as such, the impugned order was served by affixing the same on the main door of the said premises No. 60, Lake Place, Calcutta. The process server also went to the requisitioned premises No. 2, Park Lane, Calcutta on the same day. The durwan of the appellant No. 1 was found available. He, however, refused to accept the impugned order after reading the contents of the same, and accordingly, the process server served the impugned order by affixing the same on the entrance door of the requisitioned premises in the presence of one Shyamal Agarwal, the owner of a Ration Shop, situate opposite to the requisitioned premises. A copy of the report of service submitted by the process server has been annexed to the said application.

10. As has been stated already, the learned counsel for the appellants does not dispute the service of the order on the appellant No. 1. He, however, submits that as the order was forwarded to the appellant No. 1, or in other words, as the order was meant for the appellant No. 1, the service of the order on the appellant No. 1 was no service on the appellant No. 2. It appears from a copy of the order that has been annexed to the writ petition that the Land Acquisition Collector forwarded the same to the appellant No. 1. The question that emerges is whether the service on the appellant No. 1 should be regarded as service on the appellant No. 2 as well. According to the respondents Nos. 1 to 3, the order was served by affixation on the outer door of the residence of the appellant No. 1 and, thereafter, on the entrance door of the requisitioned premises after the durwan had refused to accept the same. The durwan has not filed any affidavit denying the allegations of the respondents that the order was handed over to him or that he had refused to accept service of the same. In the circumstances, we may proceed on the basis that the order was served on the durwan. Now under Rule 3(1)(a) of the Rules, the order may be served by delivering or tendering a copy thereof to the person on whom the order is to be served or to his agent. Therefore, if a copy of the order is delivered or tendered to the agent of the owner or occupier, it will tantamount to good service on the owner or occupier, as the case may be. In the writ petition, it has been alleged that Sitaram Singh is the durwan of the appellant No. 1. In paragraph 8 of the letter of the lawyer dated October 26, 1981, it has been stated as follows: “I further say that the said order was never served nor attempted to be served upon the recorded joint owners viz., on my clients nor upon the authorised durwans of my clients, who reside inside the premises, but my clients had got a copy of the said order from a nearby ration shop.” This statement shows that there were more than one durwan in the said premises. In paragraph 6 of the writ petition, it has been alleged that the durwan of the appellant No. 1 resides in one of the three rooms of the said premises No. 2, Park Lane, Calcutta. There is no whisper in the writ petition that besides the said Sitaram Singh any other person resides in the said premises. No submission has been made on behalf of the appellants that the appellant No. 2 has any durwan or that the durwan resides in the said premises. It is, therefore, manifestly clear that although in paragraph 8 of the letter of the lawyer the expression “authorised durwans” has been used, the same is not correct and refers to only one durwan, namely, the said Sitaram Singh. Sitaram Singh was therefore, authorised to accept all communications addressed to the appellants or either of them. In other words, he was the agent of the appellants for the purpose of Rule 3(a). When the order was tendered to Sitaram Singh that would also amount to service of the order not only on the appellant No. 1, but also on the appellant No. 2. It is true that the order was forwarded to the appellant No. 1, but that is immaterial. Accordingly, we overrule the contention of the appellants that the impugned order was not served on the appellant No. 2.

11. It is the case of the Calcutta Electric Supply Corporation, the respondent No. 6 as also of the respondents Nos. 1 to 3 that there has been a marked growth in the demand for electricity in the area on both sides of Park Street. It is an imperative necessity to establish a primary distribution station immediately in the said area. It is not possible to expand and/or to put any further load on the existing distribution systems supplying electricity to the aforesaid area as there is already optimum utilisation of the existing primary distribution systems. In view of the extreme urgency for such a distribution centre, the Calcutta Electric Supply Corporation negotiated with the appellants for the purchase of the requisitioned premises No. 2, Park Lane, Calcutta. It has been already noticed that the draft agreement for sale was sent by the appellants to the Calcutta Electric Supply Corporation. According to the appellants, the negotiation failed on account of the adamant attitude of the Calcutta Electric Supply Corporation. This allegation appears to be untrue. The appellants have annexed to the writ petition some correspondence that passed between the Calcutta Electric Supply Corporation and the appellants. It appears from the said correspondence that the Calcutta Electric Supply Corporation approved of the draft agreement and remitted the same back to the appellant No. 1 requesting him to complete the sale, but in spite of repeated requests the appellant No. 1 remained silent and did not even care to acknowledge the letters written to him by the Calcutta Electric Supply Corporation in that regard. Thus it appears that the appellants themselves backed out and failed and neglected to complete the sale. In that predicament, the Calcutta Electric Supply Corporation had to approach the Government for the requisition of the said premises No. 2, Park Lane, Calcutta. It may be stated here that long before the impugned order was made by the Collector, the land acquisition proceedings that were going on for the acquisition of the said premises for the purpose of the Urdu Academy were withdrawn.

12. It is urged on behalf of the appellants that land can be requisitioned under the provisions of the Act, only if there be an urgency for the same. Our attention has been drawn by the learned counsel for the appellants to the preamble of the Act which reads; “An Act to provide for the requisition and speedy acquisition of land for certain purposes.” The preamble, in our opinion, does not at all help the contention of the learned counsel that unless there is urgency or immediacy for land, the provisions of the Act cannot be resorted to, for the preamble does not say that the Act is for speedy requisition as it provides that it is for speedy acquisition of land.

13. The learned counsel, however submits that the issuance of the impugned order under Section 3(1) of the Act was mala fide or, in any event, it should be construed as malice in law vitiating the impugned order. It is contended by the learned counsel that as much time had elapsed between the attempt of the Calcutta Electric Supply Corporation to acquire the said premise es by purchase and the actual requisition of the same, there was no immediate necessity for the said premises and it could be acquired under the provisions of the Land Acquisition Act when, the appellants could get an opportunity of being heard under S. 5A of the said Act and, in case of acquisition, could get the amount of compensation being the market value of the said premises, before delivery of possession of the same. In our opinion, in the facts and circumstances of the case, the question of acquisition under the Land Acquisition Act does not at all arise. The Land Acquisition Act provides for acquisition of land whereas the Act with which we are concerned provides for requisition and thereafter for acquisition of land. Acquisition and requisition are completely different. In case of acquisition, the owner loses both title and possession of the land acquired but in case of requisition, the owner retains title, but temporarily loses actual physical possession of the requisitioned land. So we do not find any substance in the said contention of the learned counsel. It is significant to notice that neither the Act nor the impugned order under Section 3(1) of the Act has been challenged as ultra vires Article 14 of the Constitution. In the circumstances, in our opinion, the respondents were at liberty to proceed under the provisions of the Act for the requisition of the said premises No. 2 Park Lane, Calcutta. The impugned order of requisition is neither mala fide nor the making of it is malice in law as contended on behalf of the appellants.

14. The main endeavour of the appellants is to show that there was no urgency for getting possession of the said premises No. 2, Park Lane, Calcutta-1 justifying the requisition of the same under the provisions of the Act. It is contended by the learned Counsel for the appellants that as there was no urgency, it would have been proper for the respondents Nos. 1 to 3 to acquire the said premises under the Land Acquisition Act. It is submitted that the question whether there was urgency or not is justiciable and, if there is no urgency, the impugned order of requisition should be quashed. In support of the contention that the question of urgency is justiciable and subject to judicial scrutiny, reliance has been placed by the learned counsel upon the decision of the Supreme Court in Swadeshi Cotton Mills v. Union of India. AIR 1981 SC 818. In that case the proposition, whether the opinion or satisfaction of the Government in regard to the necessity of taking immediate action as provided in S. 18-AA(1) of the Industries Development and Regulation Act, 1951 is subject of judicial review or not has been considered by the Supreme Court on the analogy of Section 17 of the Land Acquisition Act. It has been observed by the Supreme Court that even under Section 17 of the Land Acquisition Act, the satisfaction or opinion of Government/Authority in regard to the urgency of taking action thereunder, is not altogether immune from judicial scrutiny. We do not think that the decision in Swadeshi Cotton Mills' case is of any help to the appellants. The power under Section 17 of the Land Acquisition Act can be exercised by the Government only on the ground of urgency or, in other words, urgency for the land sought to be acquired is the condition precedent to the exercise of power under Section 17. So in a case under S. 17, the question of urgency is justiciable. On the other hand, Section 3(1) of the Act does not lay down any such condition precedent to the exercise of the power of requisition. Even if it be assumed that requisition implies immediacy or urgency, in the absence of any specific provision in Section 3(1) restricting the power of requisition only in case of urgency or immediacy, the question relating to the same is not at all justiciable. The contention of the appellants is, therefore, unsound and is rejected.

15. On the materials on record we, however, find that there was urgency. The urgency became greater after the Calcutta Electric Supply Corporation had to waste a considerable time for the purchase of the said premises and for which the appellants were responsible. At the time the said premises was requisitioned, there was a great urgency and it was not possible for the Calcutta Electric Supply Corporation to wait any longer. In the circumstances, we do not see any substance in the said contention of the appellants. Thus, even if the question of urgency is justiciable, we find that there was urgency for the land of the said premises justifying the requisition of the same.

16. The next contention of the appellants is that as there was no formation of opinion by the Collector, the impugned order is illegal and void. Section 3(1) inter alia provides for the formation of opinion by the State Government as to the necessity for maintaining supplies and services essential to the life of the community etc., before passing an order of requisition. Under sub-section (1A) of Section 3 of the Act, a Collector of a district, an Additional Magistrate or the First Land Acquisition Collector, Calcutta, when authorised by the State Government in this behalf, may exercise within his jurisdiction the powers conferred by sub-section (1). It is not disputed that the First Land Acquisition Collector, Calcutta, has been so authorised, in view of such authorisation by the State Government, the First Land Acquisition Collector was to form the opinion under Section 3(1) before he passed the impugned order. It is submitted on behalf of the appellants that the Collector did not form any opinion, but he passed the impugned order as directed by the State Government. In support of this contention, the learned counsel for the appellants had placed reliance upon the letter dated July 16, 1981 by the Deputy Secretary to the Land and Land Reforms Department, Government of West Bengal addressed to the First Land Acquisition Collector, Calcutta. In the said letter, the urgency of the implementation of the project of the Power Department was pointed out and it vas requested that immediate steps might be taken under the provisions of the Act for the requisition of the said premises No. 2, Park Lane, Calcutta. Counsel submits that the said letter contains a direction of the Government to the First Land Acquisition Collector, Calcutta to requisition the said premises and, in view of such direction, he passed the impugned order of requisition. So, it is submitted on behalf of the appellants that the Collector did not form any opinion and he passed the impugned order as directed by the Government.

17. It has been stated already that Calcutta Electric Supply Corporation failed in its attempt to acquire by purchase the said premises from the appellants. Thereafter, it approached the Government for the requisition of the said premises, and the Government after being satisfied about the need and urgency for the said premises, requested the First Land Acquisition Collector to take immediate steps under the provisions of the Act. We do not think that the request of the Government made to the First Land Acquisition Collector to take steps under the Act for the requisition of the said premises, was a direction. In the application for vacating the interim order filed in the trial Court by the respondents Nos. 1, 2 and 3 and affirmed by the respondent No. 3 the First Land Acquisition Collector, Calcutta, it has been categorically stated that on receipt of the proposal, the respondent No. 3 inspected the said premises and was satisfied that it was most suitable and convenient for the establishment of a distribution centre of the Calcutta Electric Supply Corporation for maintaining supplies and services essential to the life of community, Thus it appears that the respondent No. 3 himself formed the opinion before he issued the impugned order of requisition. It has been already found that no direction was given by the State Government to the First Land Acquisition Collector, Calcutta, but even assuming it to be so the question is whether the First Land Acquisition Collector, Calcutta had independently formed his opinion as required under Section 3(1) of the Act which, in our opinion, he did. So, we are unable to accept the contention of the appellants.

18. Another ground of attack of the appellants to the validity of the impugned order is that the provisions of the Act do not permit the State Government to requisition any land for a company which, in the instant case, is the Calcutta Electric Supply Corporation Ltd. Under Section 3(1), subject to the proviso thereto, any land can be requisitioned by the State Government inter alia for maintaining supplies and services essential to the community, for increasing employment, for providing proper facilities for transport, communication, irrigation or drainage or for the creation of better living conditions in rural and urban areas. The question is not as to whose instance the requisition is made, but whether the requisition is made for and of the purposes mentioned in Section 3(1) of the Act. In our opinion, as soon as it is found that any land is requisitioned for any of the aforesaid purposes, in accordance with the provisions of the Act, the order of requisition will be quite legal and valid, even though requisition has been made at the instance of a company or a corporation. In a welfare State, it is the duty of the Government to see that the aforesaid purposes are served and carried out in the interests of the community. It is not possible for the Government to carry out all these purposes itself, and it has to take the help of some organisation like companies, corporations etc. If it is held that the State Government cannot acquire land for effecting any of these purposes through a company and, if it is not possible for the State Government to do it itself, the interest of the community will be seriously prejudiced. We do not think that we should be so technical in interpreting the Act in a manner that would jeopardize the welfare of the people. In case the impugned order of requisition is set aside, the result will be disastrous; a section of the community around the locality of the said premises No. 2, Park Lane. Calcutta will be deprived of the supply of electricity, and it would affect to a great extent the normal activities of daily life. We are, therefore, unable to accept the above contention of the appellants. The contention is overruled.

19. In the last resort, the appellants assail the validity of the impugned order on the ground that the respondents Nos. 1, 2 and 3 have violated the principles of natural justice. It is contended on behalf of the appellants that they should have been given an opportunity of being heard before the impugned order was passed. The learned counsel for the appellants submits that by necessary implications Section 3(1) of the Act gives an indication that the owner or occupier, as the case may be, should be heard before an order of requisition is made. Our attention has been drawn by the learned counsel to the proviso to Section 3(1) of the Act which reads as follows:

“Provided that no land for the purpose of religious worship or used by an educational or charitable institution shall be requisitioned under this section.”

It is submitted that before passing an order of requisition, the State Government has to enquire from the owner or the occupier whether the land is for the purpose of religious worship or used by an educational or charitable institution. Thus, it is submitted, the proviso strongly suggests a hearing before an order under Section 3(1) is made. It is contended that the Act not having expressly excluded compliance with the principles of natural justice, it was incumbent upon the authorities concerned to give a hearing to the appellants. In support of these contentions reliance has been placed by the learned counsel for the appellants upon some decisions of the Supreme Court — Madan Gopal v. District Magistrate, Allahabad, AIR 1972 SC 2656; Daud Ahmad v. The District Magistrate, Allahabad, AIR 1972 SC 896; Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 697; Mohinder Singh Gill v. Chief Election Commr., New Delhi, AIR 1978 SC 851. While I was sitting with A.N Sen, C.J (as his Lordship then was) similar contentions along with all the above decisions in regard to the Act with which we are concerned have been elaborately considered by me in the decision in Smt. Sushila Devi Fomra v. State of West Bengal, (1980) 2 Cal LJ 19. In that case, in considering the contention of the appellant I relied upon the decision of the Supreme Court in S.M Nandy v. State of West Bengal. AIR 1971 SC 961, where the constitutional validity of the Act was challenged on three grounds: (1) absence of any provision for a notice to the owner or the occupier of the property before an order of requisition is passed, (2) absence of any provision for an appeal against an order of requisition and (3) bar of a civil suit under Section 11 of the Act. On the first ground, namely, absence of any provision for a notice to the owner or occupier of the property before the making of an order of requisition, the Supreme Court observed as follows (at p. 963):—

“It is true that there is no express provision to make a representation against an order of requisition but there is no bar to a representation being made after an order is served under Section 3(2) of the Act. We have no doubt that if the representation raises a point which overrides the public purpose if would be favourably considered by the State Government or other Government authorities, as the case may be.”

It has been held in Fomra's case (supra) that the decision of the Supreme Court in S.M Nandy's case is an authority for the view that the Act does not contemplate giving of a notice and hearing to the person affected before the making of an order of requisition. As S.M Nandy's case is a case in point on the Act with which we are concerned we feel bound by the same, although we have not failed to notice that the field of operation of the principles of natural justice has been extended to a large extent. But so far as the Act is concerned we hold that it does not, either expressly or by necessary implications, require a hearing to be given to the owner or occupier before the making of an order. The appellants are, however, entitled to make a representation to the respondents Nos. 1 to 3 and, if any such representation is made, the said respondents will no doubt consider the same. Be that as it may, for the same reasons as given in Fomra's case (supra) which, we do not propose to repeat and, in view of the said observation of the Supreme Court in S.M Nandy's case (supra), it is difficult for us to accept the contention of the appellants that as no prior hearing was given to them the impugned order is invalid and void.

20. Before we conclude, it may be observed that in view of the conduct of the appellants, this Court should not exercise its discretion in their favour under Article 226 of the Constitution. It has been already found that after the price was settled and the Calcutta Electric Supply Corporation approved of the draft agreement sent by the appellant. No. 1 the latter deliberately avoided the completion of the sale of the requisitioned premises. In our opinion, the appellants have not come to this Court with clean hands and, accordingly, on this ground the writ petition is also liable to be dismissed.

21. In the result, for the reasons aforesaid, the appeal is dismissed. There will, however, be no order as to costs.

22. On behalf of the appellants, a prayer has been made for the stay of operation of this judgment. It is, however, submitted on behalf of the respondent No. 6, the Calcutta Electric Supply Corporation Limited that they would not demolish any structure, if there be any existing now, in the said premises No. 2, Park Lane, Calcutta for a period of three weeks from date.

23. In view of the said submission. We do not think that there is any necessity for staying the operation of the judgment for the said period.

Monoj Kumar Mukherjee, J.:— I agree.

Appeal dismissed.

Dr. Nilkamal Bez Boruah And Another v. The State Of West Bengal And Others

Structured Summary of the Opinion (Calcutta High Court)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dr. Nilkamal Bez Boruah And Another v. The State Of West Bengal And Others

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