1. The petitioners claim to be the owners of plot Nos. 1496 R.S Khatian No. 172, Hal Khatian No. 117 Mouza Taltore, J.L No. 69 Bolpore, District Birbhum (referred to as the plot). The petitioners' father Gopalji Prasad Bhakat had purchased the plot by Registered Deed of Conveyance on 28.10.88 Gopalji has since died. The petitioners Nos. 1, 2 and 3 are his children and the petitioner No. 4 his widow. The petitioners challenge the requisition and acquisition of the plot which the respondents have sought to effect under the West Bengal Requisition and Acquisition Act, 1948 (referred to as the Act).
2. The plot has been sought to be requisitioned at the instance of the Sriniketan Santiniketan Development Authority (SSDA) which was constituted under s. 11 of the West Bengal Town and Country (Planning and Development) Act, 1979 on 14th December, 1989.
3. On 6th August 1991 a proposal for requisition and acquisition of 56.06 acres of land in Mouza Taltore had been submitted by the SSDA with the approval of Development of Planning (Town and Country Planning) Department, Government of West Bengal to the Land Acquisition Collector, Birbhum, for development of a modern township. The requisition proceedings were started on 10.12.91
4. The SSDA has stated that the project had been taken up for creation of better living conditions in the area. The SSDA ??? a demand survey to find out a suitable land for the project. An area of 54 acres of land was found adjacent to Prantik Railway Station. On 26th December, 1991 the decision to make a demand survey was approved.
5. Accordingly, the SSDA published an Advertisement on 19th January, 1992 in two newspapers in which it was stated that the SSDA was proposing to set up a self-contained Township adjacent to Prantik Railway Station near Bolpore Santiniketan covering an area of about 54 acres. The advertisement further stated that the Township would be equipped with all amenities and facilities including Drinking Water, Road, Drainage, Electricity, Markets, Playground, Park, Nursing Home etc. ??? interested in acquiring land for residential and other purposes were ??? indicate their requirements of area in the prescribed proforma to the Executive Officer, SSDA by 10.2.92 The Advertisements specified that this was no offer for allotment but only for ascertainment of requirement. The particulars required in the proforma included the applicant's name, address, annual income, occupation, proposed use of land and requirement of area in ??? Leaflets were also distributed by SSDA asking persons to submit their requirements in respect of the proposed Township by 10th February, 1992.
6. On 7th February, 1992 the petitioner No. 1 submitted a representation to the SSDA. In that representation the petitioner No. 1 challenged the authority by which the SSDA sought to deprive the petitioner of the land for the purpose of building a Township. He said that he was a Teacher and permanent resident of the locality and that he was born there and he had the right to reside there. It was also stated that his father had purchased the land in 1988 for building a residential house. It was also stated that the proposed Township was not for the benefit of the public. It was pointed out that the areas under the control of the SSDA where there were houses already did not have proper roads or drinking water or electricity or drainage. It was stated that the setting up of the “dazzling” Township was nothing else but an effort on the part of SSDA to bide its incompetence to tackle real problems. It was also stated that far from benefiting the residents of the locality, the persons in the locality were being dispossessed for the purpose of building “rest houses” for “persons from Kerala”. It was further stated that the land which was obtained by “turning blood to water” could not be sold to another by the State or by any governmental Institution to wealthy persons at a higher price.
7. This representation was received by the Executive Officer of SSDA on 11th February, 1992.
8. It is stated by the SSDA in the affidavit of its Executive Officer that the letter did not call for any reply as the allegations were vague and unfounded. It is stated that the survey was carried out openly and that the entire area was marked at the time of carrying out the demand survey and all the owners or the plot holders became aware of the proposal for requisition at the time of the demand survey.
9. On 15th February 1992 an analysis was made by the Executive Officer of the SSDA, of the 1801 responses received to the Advertisements. The responses were from persons in Service, Business, Professions, Teaching, Cultivators and others. The annual income range of the persons applying was from below Rs. 25,000/- to over Rs. 1,00,000/-. The residential background of the persons applying were 48 per cent from Bolpore Sub-division, 10.20 per cent from Birbhum, 22.38 per cent from Calcutta, 14.49 per cent from other Districts in West Bengal and 4.23 per cent from outside the State of West Bengal. It was found that the predominant trend was that the applications had been made by the service holders of middle class Income who required the plots for residential purposes and who were mainly resident in the Bolpore Santiniketan surroundings.
10. A preliminary inspection report was received on 24.2.92 The requisition order was issued under s. 3 of the Act in respect of 53.83 acres on 27th February, 1992.
11. According to the petitioners no copy of the order was served on the petitioners at any point of time.
12. On the other band, according to the petitioners, on 16th March, 1992 some persons came to take possession of the land from the petitioners. The petitioners did not allow the taking of possession and on 27th March 1992 moved this writ application challenging the attempt on the part of the State Authorities to take possession of the plot.
13. No copy of the requisition order has been annexed to any of the affidavits. However the records have been produced from which it appears that the purpose mentioned in the order was for development of a modern urban township. Service of the order is shown to have been effected on 28th February, 1992 on the Bolpore P.S, Bolpore S.D.O, at Taltore Mouza Special Land Acquisition Officer the Birbhum Collectorate Office Board the Rappur Gram Panchayet and the Executive Officer SSDA. The Order under s. 3 of the Act, also state that following the reasons as aforesaid. Officers and workmen of SSDA would use or deal with the land in a manner as may appear to them to be expedient or necessary and possession of the land would be taken over by the LA/KGO/Survey/Amin on 28.2.92 at 2 P.M
14. There is some dispute as to whether the possession has been taken of the land or not. According to the writ petitioners possession was still with the writ petitioners. According to SSDA it is in the possession of the entire 53.84 acres of land.
15. The records show that on 28.2.92 land acquisition Surveyor took over possession of about 84 plots of land in full and 3 plots in part covering an area of 53.84 acres. These 84 plots include the plot in question.
16. The petitioners have contended that the requisition proceedings are vitiated and liable to be quashed because:—
(1) No order under s. 3 of the Act was served on the petitioners. The respondents have stated that service for the project was effected on some persons by ordinary post on 27.2.92 and some by Registered Post on 28.2.1991 Neither of these forms of services could be effective service before the possession was sought to be taken at 2 P.M on 28.2.92 It has also been submitted by the respondents that the process server wanted to serve the plot-holders. It is denied that any such service had ever been attempted. Even the service purported to be made under Rule 3(d) of the West Bengal (Requisition and Acquisition) Rules 1948 was invalid. It is argued that the process server had sought to effect service on 28.2.1992 It has not been stated at what time such service was effected or where such service was effected on the area sought to be requisitioned nor was it possible to effect such service before the possession was taken at 2 P.M on the same date. Reference was made to s. 27 of the General Clauses Act, 1897.
(2) The purpose for which the land was sought to be requistioned did not come within the purview of the Act. The purpose had been created by artificial means. It is stated that there was no existing need. The advertisement published by the SSDA showed that the requirement was to be assessed. There was no actual need but a need created as a commercial venture. According to the petitioners public purpose envisages a particular public with reference to the purpose sought to be met, for example, rehabilitation of refugees from East Bengal etc.
(3) The alleged requirement was permanent in nature. The authorities concerned ought to have proceeded under the Land Acquisition Act 1894. The provision of the 1948 Act had been enacted for the purpose of requisition and speedy acquisition for certain specified purposes. There was no need for any haste in the present case. Since a specific law existed for acquisition namely the 1894 Act the State Government could not travel beyond the scope of the 1948 Act and acquire property which could have been acquired under the 1894 Act.
(4) The order of requisition had not been passed bona fide but in colourable exercise of power. The proof of mala fides lay in the fact that the authorities concerned had created an alleged public purpose and was also evidenced by the mode and manner of service of the order under s. 3.
17. The petitioners have relied upon the following judgments:
Taraknath Sen v. First Land Acquisition Collector 1983 (1) CLJ 371;
Howrah Mills v. State of West Bengal 1988 (1) CLJ 455;
Dipak Kumar Ghosh v. State of West Bengal; 1992 (1) CLJ 205 and
Bhinashar Finance (P) Ltd. v. State of West Bengal; 1992 (1) CLJ 222.
18. On behalf of the State Government it has been submitted:
(1) The writ petitioners were not in possession or occupation of the plot in question when the order of requisition was issued and delivery of its possession made to SSDA. There was no proof or any evidence of actual occupation.
(2) Service under s. 3 of the Act had been effected by fixation on a conspicuous place on the land sought to be requisitioned and also displayed in the office notice board of the SDO and Collector. This was good service under s. 3(d) of the rules. The denial of service would at the highest give rise to a disputed question of fact which could not be gone into in any writ proceedings. Reliance has been placed on the decision reported in 82 CWN 628. In any event it is submitted that the Government's case is mare probable. There had never been any intention to take over possession clandestinely. The notice had been published in newspapers as early as 19th February, 1992. Leaflets had also been distributed to the effect that the township would be set up on land next to the Prantik Station. In fact the writ petitioners had received a copy of the requisition order as one of the legal heirs had come to mutate his name to get compensation. The object behind the service of the order under s. 3 of the Act was to appraise the owners and occupiers if any, of the order of requisition so that they may subsequently make a representation objecting to the requisition order of claiming compensation. It was well established that there was no question of giving any prior opportunity of being heard before the requisition order was issued. Reliance has been placed on the decisions reported in 1984 (2) CLJ 19 and 84 CWN 661 in this connection. It is stated that in this case such opportunity had been given by the publication in newspapers and the distribution of leaflets. No objection had been received from anybody to the requisition. It is submitted that the petitioners have not been prejudiced as the plot was lying vacant without any structure or article thereon. The plot would be ultimately acquired and compensation paid according to the market value. Reliance has been placed on the decision reported in AIR 1982 Cal 522 (Paragraphs 18 & 19).
(3) Section 3 of the Act did not refer to any public purpose. The purposes for which the land was being requisitioned as a step towards acquisition came within the ambit of s. 3(1). The modern township would create better living conditions. This township was not limited or confined to any particular class and was open to all members of the public who were desirous of applying for a residential plot. The Court's attention has been drawn to the fact that s. 3(1) of the Act formerly included the phrase “for people residing in the area” as against the creation of better living conditions. This was deleted by the West Bengal Act (XVI) of 1970. Reliance has been placed on the decision reported in AIR 1972 Cal 8 in this connection. It is stated that the decision reported in 1983 (1) CLJ 371 was per incuriam as it had not noted the amendment effected by West Bengal Act (XVI) of 1970. There was no distinction between the 1948 Act in so far as it related to acquisition. It was not required that land should be acquired for a specified class of persons. Reliance has been placed on the decision reported in 1979 (1) CLJ 212.
(4) The question was not whether the purpose was needed but whether the requisition or acquisition was needed for the purpose mentioned. There was no dispute that the purpose mentioned was within s. 3 of the Act. In fact, there was no averment to the contrary in the writ ???.
19. The SSDA has contended:—
(1) The land in question was absolutely vacant and was not occupied at all. Possession had been duly taken over on 28.2.92 As the requisition and acquisition were for the benefit of the public, no objection had been received from any person by the Collector after such possession was taken.
(2) The petitioners were not the recorded owners of the land. One Gopal Das Dalal and six others were the recorded owners. The Land Acquisition Collector had effected service on the basis of settlement records. In any event, the petitioner had been duly served under Rule 3(d) of the West Bengal Land (Requisition and Acquisition) Rules. Reliance has been placed on the decision reported in 1976 (2) CLJ 98. It is stated that there was no minimum period for service of an order of requisition under the Act. Reliance has been placed on the decision reported in AIR 1972 Cal. 8 (Paragraph 43 in this connection). The purpose of service was to give information to enable the authority to execute the order by enforcing delivery of possession. The petitioners had knowledge of the order and their only grievance was that they did not have any notice before the order was passed. It is stated that no such prior notice was required. Reliance has been placed on the decisions reported in AIR 1972 Cal. 8 (para 40), 78 CWN 29 (para 9-13) and 84 CWN 661 (para 16).
(3) The purpose of requisition was within the scope of the Act. The creation of better living conditions in urban or rural areas by construction or reconstruction of dwelling places in such areas and for purposes connected therewith were covered by s. 3 of the Act. It was emphasised that even the construction of a police station was a purpose incidental to the creation of better living conditions. Reliance has been placed on the decision reported in 1982 (2) CLJ 243 paragraph 8. It was open to the Government to take recourse to either the 1894 Act or the 1948 Act. Reliance has been placed on the decision reported in AIR 1972 Cal. 8 paragraphs 13 and 14 in this connection.
(4) There was no colourable exercise of powers. Wide publication had been given to the project. The order was also served in accordance with law. The purpose was within the scope of the section. The requisition was to be followed by acquisition and the petitioners would be paid compensation in accordance with law. It is stated that the petitioners could have submitted a representation to the Land Acquisition Collector but did not choose to do so, but filed this writ application to delay the proceedings. Reliance has been placed on the decision reported in 84 CWN 661 (paragraph 17).
20. After the hearing was concluded, the petitioners, upon notice to and in the presence of Counsel for the respondents, handed over an Information Brochure issued by the SSDA in respect of the Prantik Township at Santiniketan. The petitioners have relied upon the brochure to show that the plots were being leased to the allottees at rates which were much higher than the rate at which the compensation for the plots was to be paid under the Act to the persons deprived of the land. It is urged that this would show that the entire exercise was really in the nature of a commercial venture on the part of SSDA which was making profit at the expense of the land owners and occupiers whose lands were being requisitioned and acquisitioned. It is also stated that the brochure would indicate that any adult Indian national could apply for a plot of land at the Township. It is submitted that this bore out the contention of the petitioners that the requisition and acquisition was being made without any particular public in mind.
21. The primary question which will have to be determined in this case is the nature of the satisfaction the State Government must arrive at under s. 3 of the Act prior to issuing an order of requisition. Section 3(1) of the Act in so far as it is relevant provides that the State Government must be of the opinion that it was necessary so to do for the creation of better living conditions in rural or urban areas by the construction or reconstruction of dwelling houses in such areas before making an order in writing requisitioning land. The State Government's submission is that the word ‘necessary’ in s. 3(1) pertains to the requisition of the land and not the purpose. In other words once the purpose is within the ambit of s. 3(1) the State Government under s. 3 has merely to be satisfied that the requisition of the land was necessary to give effect to such purpose.
22. In my view the word ‘necessary’ pertains both to the requisition of land as well as to the purpose mentioned in s. 3(1). It is implicit in s. 3(1) that the State Government must be of the view that the particular purpose was a necessary one.
23. Additionally the State Government must also be satisfied that requisition under s. 3 was necessary to effect such purpose. Stated differently it means that for the purposes mentioned in s. 3(1), the State Government would not as a matter of course take proceedings under the Act. The State Government would upon receipt of a proposal, have to consider whether the purpose could be met by any other form of action e.g by outright sale of land, or lease or acquisition under the various Acts. This is evident from the use of the word ‘may’ in s. 3(1).
24. This discretion in the State Government to take or not to take action under the 1948 Act is not an unfettered one as sought to be contended by the respondents.
25. The decision in Basumati Bag v. Collector, Howrah reported in 78 CWN 29 does not assist the respondents in this regard. In that case the Court had to consider whether the State Government was incompetent to take any action under the 1948 Act by reason of the provisions of s. 24 of the Hooghly River Bridge Act. In that context the Court held:—
“Even assuming that s. 24 of the Hooghly River Bridge Act provides for independent power and procedure for acquisition, that by itself would not include the other general powers under other Acts and particularly the power of requisition under s. 3 of the West Bengal (Acquisition and Requisition) Act, if and when such acquisition or requisition comes within the sanction of such statutes.”
26. It is to be emphasised that the operative phrase is “when such acquisition or requisition comes within the sanction of such statufes”. This leaves unresolved the question as to when an acquisition or requisition comes within the sanction of the 1948 Act.
27. In M.K Sarkar v. State of West Bengal reported in AIR 1972 Cal. 11 it was held:—
“…if in the exigencies of a particular case the State Government chooses to apply the West Bengal Land (Requisition and Acquisition) Act 1948 for acquisition of certain land instead of applying the slower proceedings prescribed by the Land Acquisition Act, the order of requisition cannot be challenged as discriminatory or unconstitutional.”
28. Here again the Court had recognised that the provisions of the 1948 Act could be applied “in the exigencies of a particular case.”
29. What were the exigencies in this particular case by reason of which the State Government determined to take action under the 1948 Act and under no other? Nothing has been disclosed.
30. The third decision relied upon by the State Respondents in this connection is the case of Dhirendra Nath Mukherjee… v. State Of West Bengal…. reported in 1979 (1) CLJ 212. In that case there is an express recognition that the 1948 Act is applicable only where an element of speed was necessary for acquisition. At page 219 the Court said:
“I am also inclined to accept the contention of Mr. Sarkar that if a particular land is really intended to be acquired speedily and the said land can also be requisitioned for a public purpose referred to in s. 3(1) of the West Bengal Act II of 1948, the order of requisition is a valid order of requisition.
It is entirely an election of the concerned authority as to whether the acquisition should be made under the Land Acquisition Act of 1894 or such acquisition should be made under the speedier and less stringent provisions of West Bengal Act II of 1948 through the process of requisition under the said Act.”
31. Therefore in order to be satisfied that action should be taken under the 1948 Act and no other, the State Government would have to consider whether there was such a pressing need or an urgency which justified utilisation of the summary powers under the Act.
32. That the provisions of the Act should be resorted to only in cases where there was such an urgency which required a speedy acquisition is evident from the Preamble to the Act and the authorities cited.
33. In Dipak Kumar Ghosh v. State of West Bengal reported in 1992 (1) CLJ 211 it was held:—
“West Bengal Act II of 1948 can be resorted to in a case of emergency. The respondents have stated that they have to complete the project by March 1992. In other words, if the respondents have in their discretion resorted to emergency provision the Court will not strike it down or unveil the veil unless recourse thereto is mala fide or a colourable exercise of power.”
34. There must therefore be ‘case of emergency’. The decision in Dipak Kumar Ghosh would seem to suggest that a case of emergency if made out by the State Government would not be scrutinised by Court except that there was a question of mala fides. In the matter before me, no such ‘case of emergency’ has been made out at all.
35. The existence of the urgency is therefore the objective criterion by which the Court would test whether the State Government had exercised its discretion correctly in resorting to the provisions of the 1948 Act rather than any other provision for acquisition, for example, under the Land Acquisition Act 1894.
36. Coming to the facts of this case it does not appear there was any such emergent situation which justified the recourse to requisition under the Act to be followed by acquisition. In fact there is no pleading at all in either of the affidavits filed on behalf of the respondents which would show that the State Government had at all addressed itself to this aspect of the matter.
37. It may be mentioned that under s. 13(1)(ii) of the West Bengal Town and Country (Planning and Development) Act 1979 (referred to as the 1979 Act) a Development Authority such as SSDA has varied powers including the power to formulate development plans and to implement the same by means of a development scheme. A detailed procedure has been prescribed under the 1979 Act.
38. Under s. 31 of the 1979 Act, the Development Authority is to prepare an outline Development Plan in respect of the planning area within its jurisdiction inter alia indicating broadly the manner in which the land in such area should be used, allocating areas for residential, commercial and other purposes and also providing for amenities such as water supply, streets etc. The Development Plan is to be approved by the State Government under s. 35 of the 1979 Act. Public Notice of the preparation of the Development Plan is to be given under s. 36. Such notice is to be given in the Official Gazette or any one or more local papers inviting objections from any person with respect to the Development Plan within a period of 60 days. The objections are thereafter to be considered by a Committee specially appointed for this purpose Under s. 36(5) the Committee appointed is required to afford a reasonable opportunity of being heard to any person who has filed any objection and who has made a request for being so heard. The Committee is thereafter to submit a report. The Development Authority after considering the report is to submit the Development Plan with or without modification together with the report to the State Government. The State Government, thereafter, may either approve the Development Plan with or without modifications or return the Development Plan to the concerned authority to prepare a fresh plan in accordance with the directions of the State Government. After the approval of the Development Plan a public notice is to be given in the Official Gazette and in a local newspaper or newspapers of the approval of the Development Plan under s. 38 of the Act Section 39 of the 1979 Act provides for reference to the High Court by any person aggrieved, questioning the validity of the Development Plan. The High Court after giving the authorities concerned and the State Government opportunities of being heard has the power to quash the Plan or any provision contained therein generally or in so far as it affects any property of the applicant.
38A. Section 43 of the 1979 Act provides as follows:—
“Any land required, reserved, or designated in a Development Plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (1 of 1894) and may be acquired under the said Act.”
39. It has not been argued by the petitioners that by virtue of s. 43 of the 1979 Act no proceedings could be taken under the 1948 Act, nor has it been contended that the proceedings were vitiated by reasons of the non-compliance by the SSDA with the provisions of Ss. 31 to 39 of the 1979 Act. Nevertheless these provisions would indicate at least that normally a scheme such as the one which is sought to be implemented by the SSDA in this case is not one which is of such urgency that the summary jurisdiction under the 1948 Act must be resorted to.
40. It is further apparent from the facts of this particular case that there was no burgeoning need which was being met by the requisition of the 54 acres of land at Sriniketan, Santiniketan. First of all the need for providing residential accommodation might have existed with relation to a particular income group or a particular class of people such as persons not owning any residential accommodation. The project which SSDA is seeking to implement has no reference to any income group nor is there any limitation on whom the allotment is to be made. The allotments are to be decided by lottery with an overriding power in the SSDA to allot all or any of the plots by any mode considered necessary by the authority in the exigency of the disposal. There is no indication as to what would constitute the “exigency of the disposal.” In any event it is perfectly possible that the modern township would feed fat the “haves” as against the “have nots”.
41. As observed by the Supreme Court in Lingappa Pochanna v. State of Maharashtra reported in AIR 1985 SC 389 at 398:—
“Our Constitution permits and even directs the State to administer what maybe termed ‘distributive justice’. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle: ‘From each according to his capacity, to each according to his need’. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings both agriculture and urban.”
42. It needs no authority to reiterate the principle that in all cases of requisition the authorities concerned have to weigh in the balance the needs of the persons who are deprived of their lands against the purpose of the requisition. It is not as if the township is being planned for the purpose of alleviation of the congestion in Bolpore or any other town in the locality as was the case in the State of Uttar Pradesh v. Smt. Pista Devi reported in AIR 1986 SC 2025. In that case the Meerut Development Authority had requisitioned lands for the purpose of lessening the congested conditions in Meerut. The Supreme Court considered that the requisition and acquisition was valid but in disposing of the matter referred to the provisions contained in s. 21(2) of the Delhi Development Act, 1957 which provided for the offering of the land requisitioned to the person dispossessed subject to terms and conditions. In other words the allotment of the requisitioned land should be made after giving an opportunity to the person whose lands had been acquired to take on lease the plots from the Development Authority after adjusting the compensation which would be payable to them by reason of their loss of ownership or right of occupation etc. In that context the Supreme Court held:—
“Although the said section is not in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas. We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired, will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question.”
43. There is no averment, let alone any evidence that the State Government had, upon receiving the proposal from SSDA, weighed in the balance the conflicting needs of the persons dispossessed or deprived, with the needs of the persons sought to be benefited by the requisition and acquisition. It need not have been an either or situation. The Respondents could hive dovetailed the conflicting claims by making a special provision for the persons who are losing their lands, in terms of the recommendation by the Supreme Court in Lingappa Pochanna's case (supra).
44. Had the State Government considered the class of persons sought to be benefited by the requisition it would be immediately apparent that there was no limit on the income of the applicants/allottees nor any condition that the applicants/allottees should not own any other residential accommodation. The petitioners grievance might be justified in questioning the equity of their land being acquired, to build the houses for the wealthier section of Society. As observed in the case of Lingappa Pochanna (supra) albeit in the context of tribals at 393:—
“This weaker section of the community should not become landless and that persons belonging to the affluent and powerful sections should not be allowed to take undue advantage of the situation.”
45. These observations would apply to any deprived or economically weaker section of society Poverty is not a respecter of caste or tribe. If a person already owns residential accommodation it cannot be said that there was any necessity as such for building an urban township for the benefit of such person or persons.
46. To sum up: there was neither need for the purpose nor and in any event any emergent situation warranting requisition under the 1948 Act.
47. I am therefore, of the view that the necessity either for the purpose sought to be achieved or for the requisition under the 1948 Act not having been established in this case even prima facie, the formation of the opinion by the State Government cannot be sustained and in the absence of a valid opinion properly arrived at the impugned order of requisition and all proceedings consequent thereto cannot stand.
48. Even assuming that the requisition order was correctly made under the 1948 Act there is another aspect of the matter viz. the service of the order under s. 3(2) of the Act. It is true that the State Respondents could have availed of any of the four modes of service prescribed under Rule 3 of the Rules (See: Kali Prosad Poddar v. Additional District Magistrate reported in 1976 (2) CLJ 98, 102). It is also true that prior to the making of the order under s. 3, there is no scope for giving any opportunity of being heard under the provisions of the 1948 Act (See S.D Fomra v. State of West Bengal reported in 84 CWN 669) Nevertheless no authority has been cited in support of the contention that the order of requisition need not be served on the owners and occupiers at all. It has been fairly conceded by the SSDA that the object of the notice was to give an opportunity to the person whose land had been requisitioned to represent against the order. As I see the provisions of s. 3 the only limitation in terms of time on the service of the order of requisition under s. 3 of the Act is that it must be made prior to the possession being taken under s. 3(3) of the Act. Section 3(3) of the Act refers to the “failure to comply”—This pre supposes that the person concerned had the opportunity to comply with the order of requisition. This in turn presupposes the service of the order. The State Government's submission that the petitioner knew about the requisition from the advertisements published and leaflets distributed by SSDA are unacceptable. Neither the advertisements nor the leaflets either showed on that specific plots of land the Township was proposed to be built nor did they reveal how this land was going to be made available to SSDA. Secondly the statute itself requires service of the order of requisition and it is not open to the State Government to plead knowledge of the order of requisition aliunde.
49. In this case there is nothing on record to show when the order under s. 3(1) was sought to be served personally or otherwise on the petitioners or any of them. The statement in the affidavit of the respondents to the effect that an attempt had been made to serve the plot-holders individually does not appear to be correct as far as the land in question is concerned Upon a careful scrutiny of the records produced no copy of the requisition order pertaining specifically to the land in question appeared. As already noted earlier in this judgment, from the records it appears that the order was sought to be effected under Rule 3(d) of the Rules. If indeed service was effected under s. 3(d) such service should have, for the reasons already stated, taken place prior to the taking of possession, enabling plot-holders to make a representation or to make over possession on the date specified. It is immaterial whether the land was occupied or not.
50. It is appropriate to deal with the contention of the SSDA in this context, that the petitioners were not the owners of the land in question. The basis of such submission is the fact that land was not recorded either in the name of the predecessors in interest or the person from whom the petitioners' predecessors in interest had purchased the land. It is well established, that a record of rights does not create title but may evidence title. In order to support an effective challenge on the basis of the record of rights the respondents would have to show that the record of rights had been rectified after the purchase alleged by the petitioners of the land in question by the predecessors in interest. In fact nothing has been stated as to when the record of rights upon which the SSDA has sought to reply was prepared. The Special Land Acquisition Collector who has affirmed the affidavit on behalf of the State Respondents, on the other hand, has referred to the petitioner's father as the “deceased tenant” in paragraph 3(e) of his affidavit. No challenge has been thrown to the Registered Deed of Conveyance annexed to the writ petition as being fabricated or an invalid document. It must be remembered that the petitioner No. 1 had claimed that the plot in question belonged to his father as far back on 7.2.92 in his representation to the SSDA. The SSDA did not call upon the petitioner No. 1 to substantiate his claim of ownership then. The SSDA chose to ignore the petitioner's representation. The SSDA cannot now be permitted to question the petitioner's right to the land in question.
51. To return to the question of service of the order. Given the fact that the intention of the service is to fix the persons concerned with the knowledge of the order, it was imperative for the process server to have mentioned when he had hung up the copy of the order on the Notice Board of the Collector's Office and on the premises in question and secondly where. In the 54 acres of land requisitioned, had he so hung up the order of requisition Each plot-holder is entitled to a separate order. Neither the Act nor the Rules provides for a composite notice being served. A plot holder would not at all be concerned if a copy of the order is put up on another plot. To the owner and/or occupier of a plot of land, the land to which the order relates under Rule 3(d) of the rules, must mean their plot of land Therefore, the process server could not be hard to say that he bad served all the plot-holders by hanging up one order of requisition at an unspecified place in the 54 acres of land covering 84 plots. In the absence of the necessary particulars and in the absence of any evidence of service as indicated the Court cannot assume that the process server had in fact effected service of the order in terms of s. 3(2) of the Act on the petitioners.
52. Reliance by the State Respondents on the decision in Chittaranjan Sen Majumder v. First Land Acquisition Collector reported in 82 CWN 630, 631 is inapposite. That was a case under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (referred to as the 1947 Act). Under s. 4(1) of the 1947 Act where premises are requisitioned, the Collector is required to give notice in writing to the person in occupation of the premises under s. 4(1) of the 1947 Act. It was found as a fact that a concern other than the writ petitioner was in occupation of the premises requisitioned. That concern had been served. In the circumstances the Court held that there had been compliance with the requirement of service of notice under s. 4(1) of the 1947 Act. There is no question of any disputed question of fact here. The Court has proceeded on the basis of the records and the averments made by the respondents. Similarly, in Anderson Wright & Co. v. State of West Bengal reported in AIR 1982 Cal 523, which was also a case relating to service of the notice under s. 4(1) of he 1947 Act, the Court held that where the Appellant (writ petitioner) was not in actual physical possession of any portion of the requisition premises the question of serving a notice on it did not arise. The Court further held that the appellant not being in actual physical possession could not be said to be prejudiced by the insufficiency or shortness of the notice under s. 4(1) of the 1947 Act. In other words, had the appellant been in occupation and therefore, been entitled to notice under s. 4(1) of the 1947 Act, it could have complained of the insufficiency or shortness of the notice. Under the 1948 Act however the order is to be served not only on the owner but also on the occupier. Therefore, either the owner or the occupier, could, on the basis of this reasoning, have questioned the adequacy or the shortness of the notice to make over possession.
53. A contrary view appears to have been taken in the case of M.K Sarkar v. State of West Bengal reported in AIR 1972 Cal. 17, 18. In that case the Court held:
“The impugned order is dated the 5th November, 1969. The order itself was served on the 7th November, 1969, calling upon the appellants to deliver possession on the very day following. The appellants contend that this is grossly insufficient notice and as such the order should be struck down. In the very first instance, s. 3(1) as quoted above does not speak of any notice whatever. That section provides in s. 3(2) that the order shall be served in the prescribed manner on the owner or occupier of the land. That has been done. The statute, therefore does not provide for any particular notice or any minimum period of notice. The requirements of s. 3(2) of the West Bengal Act have on the facts of this case been satisfied. No question of any notice or reasonableness of a period of notice in such circumstances can arise.”
54. Even in that case the order was served on the persons entitled to the same on the day prior to the time fixed for the taking of possession. In this case there does not appear to be any service as contemplated even under s. 3(d) on the owners of the land, much less service on any person prior to the taking of possession.
55. In a recent decision, a learned Single Judge of this Court (Sm. Purnima Mukherjee v. The State of West Bengal reported in 1990 (1) CLJ 541, 548) deprecated the manner of service of an order under s. 3(2) of the Act in the following words:
“It is not appreciated by this Court as to why steps were taken to serve the impugned orders on 15.6.84 at 7.30 P.M to indicate the possession would be taken on 16.6.84 i.e, on Saturday while the Hon'ble Court does not sit ordinarily, and to take the possession at 11.00 A.M
Practically, the notice had been served on Friday evening with a view to take possession on the Saturday morning. It is indeed a mockery of the performance of the Statutory duties. The steps taken by the State respondents to deny the right of a citizen to protect his rights are not to be appreciated as bona fide. It is nonetheless mala fide and for an oblique notice.”
56. In this case, the hot-haste in which the service was purported to be effected and possession taken could have supported an allegation of mala fides (See P. Bhooma Reddy v. State of Mysore AIR (1969) SC 655 para 19).
57. However, in view of the findings regarding the invalidity of the impugned order and service, it is not necessary for the Court to consider the question of mala fides raised by the writ petitioners which is accordingly left open.
58. The writ application is accordingly allowed. The impugned order and proceedings for requisition of the plot quashed. There will be no order as to costs.
August 5, 1992
On the prayer of the learned Advocate appearing for respondents nos. 7 and 8, the operation of the order shall remain stayed for a period of two weeks from date.
Department is directed to issue certified copy of this order expeditiously. Parties will also be at liberty to take inspection of this judgment.
Application allowed; impugned order and proceeding quashed.
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