ASWINI KUMAR NATH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for an appropriate Writ directing the opposite parties to withdraw and/or cancel the orders of acquisition and certain notifications issued under the West Bengal Land Development and Planning Act.

(2.) The petitioner is the owner of certain plots of lands in Mauza Hatinagar and Mauza Shibpore within the jurisdiction of Berhampore Police Station in the district of Murshidabad. The particulars of such lands are set out in paragraph 5' of the petition. It is alleged that some of these lands are tenanted and some are under cultivation of the petitioner. It is alleged that for some time past certain refugees have been trespassing upon the lands of the petitioner under the authority of the opposite parties and they are cutting down trees and making excavations and are causing damage to the petitioner's lands. It is alleged that on the 30th November, 1950, two notifications, one bearing No. 12676 L. Dev. dated the 16th November, 1950, purported to be made under Section 4 of the West Bengal Land Development and Planning Act and another bearing No. 12678 L. Dev. also dated the 16th November, 1950, and purporting to be made under Section 6 of the said Act were published in the Calcutta Gazette in respect of the petitioner's lands in the Shibpore Mouza and, on the 15th February 1951, two notifications bearing Nos. 1548 L. Dev. and 1550 L. Dev. both dated the 12th February 1951, purported to be made under sees. 4 and 6 respectively of the said Act were simultaneously published in respect of the petitioner's lands in Mouza Hatinagar. Thereafter, the petitioner approached the opposite party No 2, the Collector for release of the petitioner's lands but this was not done. Demands of justice were made on behalf of the petitioner but with no effect. It is alleged in the petition that possession of the lands is with the petitioner. This fact is however disputed by the opposite parties. As the petitioner has failed to obtain any redress at the hands of the opposite parties, he has moved this Court for the reliefs stated above. On behalf of the opposite parties, the counter-affidavit has been affirmed by one Atul Chandra Bala who is a Kunungo under the Refugee and Rehabilitation Directorate attached to the Murshidabad Collectorate. In paragraph 4 of the said counter-affidavit, it is stated that the proposal for acquisition of certain lands in Mouzas Hatinagar and Shibpore was submitted to the Refugee Rehabilitation Commissioner, West Bengal, by the Collector of Murshidabad, that the schemes in respect thereof were approved by the Land Planning Committee and' that thereafter notifications under Section 4 and declaration under Section 6 of the Land Development and Planning Act were published in the Calcutta Gazette in respect of the above schemes, namely Hatinagar and Shibpore Schemes respectively. On the 26th February 1951, the possession of the lands comprised in the Hatinagar Scheme was taken but out of this area certain portion was released by the District Magistrate after investigation and the rest of the lands including the lands of the petitioner is under acquisition and most of the lands have been, allotted to several displaced agriculturist families who have taken possession of the different plots of lands between the 26th June 1951 and 15th July 1951 and have subsequently constructed houses thereon and brought the agricultural lands under cultivation, and similarly in respect of the Shibpore Scheme also a small portion of the land was released & some portions of the scheme lands have been distributed to the refugees who have also constructed houses thereon and have also brought the agricultural lands under cultivation. In sub-paragraph 5 of paragraph 4, it is stated that it' was subsequently thought desirable to issue a fresh declaration under Section 6 in supersession of the previous declaration under Section 6 in respect of the lands in question and this declaration was dated, the 14th May 1951 and published in the Calcutta Gazette of the 31st May 1951. This subsequent declaration dated 14th May is stated to be in respect of the Hatinagar Scheme and it appears that a fresh declaration was also issued in respect of the Shibpore Scheme and was published in the Gazette of the 21st June 1951 and it is further stated that the previous declarations under Section 6 of the said Act in respect of both the schemes were eventually cancelled. It is further stated in paragraph 9 (a) and 10 of the counter-affidavit that notices under Section 4 of the Act were duly published in the office of the Union Board and at other convenient places in the locality. The Collector considered the prayers of the petitioner and he was satisfied that there were no valid reasons for releasing the plots from acquisition. The Notification No. 5890 L. Dev. dated the 14th May 1951 and published in the Calcutta Gazette of the 31st May 1951 and the Notification No. 7176 L. Dev. dated the 4th June 1951 & published in the Calcutta Gazette of the 21st June 1951 have been produced before me, and it appears therefrom that these notications were purported to have been made under Section 6 read with Section 7 of the Act. They are not notifications under Section 6 simpliciter. They purported to be combined notifications under those two sections.

(3.) In view of my judgment delivered in 'MD. SAFI v. STATE OF WEST BENGAL', 55 Cal W N 463, the declarations made under Section 6 and published on the 30th November 1950, and 15th February 1951, must be held to be invalid having been simultaneously published with the notifications under Section 4 of the Act. The question then arises whether the fresh declarations made under Section 6 read with Section 7 of the Act and published on the 31st May 1951 and 21st June 1951 were valid declarations in the facts and circumstances of this case. It appears from the facts stated in the counter-affidavit to which I have already referred in the earlier part of this judgment that a full-fledged scheme has been prepared in respect of both Hatinagar and Shibpore lands and the schemes are still being worked out and there is nothing in the affidavit to show that the said schemes have been abandoned. It is expressly stated in the affidavit that the subsequent declarations under Section 6 read with Section 7 have been made in respect of the said two schemes. It is difficult to appreciate how in the circumstances the provisions of Section 7 of the Act could be invoked. In order that See. 7 can be attracted, it is to be established that the Provincial Government was satisfied that the preparation of a development scheme was likely to be delayed and it was after the Government was satisfied in this respect that they could make a declaration under Section. 6 in respect of the notified area or any part thereof though no development scheme has been prepared or sanctioned under Section 5. It is clear however from the facts stated in the affidavit as I have pointed out before that schemes have been prepared in respect of the lands in question. It is clear from a perusal of Section 5 of the Act and the various sub-rules of Rule 5 of the Land Development and Planning Rules that a distinction has been drawn between the actual preparation of the scheme, the submission of the scheme for sanction and the sanction of the scheme. The Provincial Government first directs the Land Planning Committee or a Company to prepare a development scheme and after the scheme is prepared, it is submitted for local enquiry to the Collector of the district or any other officer authorised by the Collector in this behalf giving persons interested an opportunity of making representations against the scheme and then the scheme is submitted to the Provincial Government for sanction accompanied by the original scheme, the report of the enquiry held by the Collector, the representations and objections made and the recommendation of the Committee. The schemes having been prepared in this case, there was no question of any delay being occasioned by reason of the preparation of the schemes so as to attract the operation of Section 7 of the Act. It must therefore be held that the combined declarations under Section 6 read with Section 7 are bad. Assuming however that these Notifications published on the 31st May 1951 and 21st June 1951 can be construed as notifications under section 6 only, then, it appears from the facts stated in the affidavit and it is also conceded by the learned Advocate appearing for the opposite parties that no opportunity was given to the petitioner to make any representations or objections against the scheme and therefore there cannot in any event be a valid declaration under Section 6 alone of the Act. As I have pointed out the scheme of Rule 5(2) is that it is only when an opportunity has. been given to the persons whose lands are affected by the acquisition to make representations against the scheme and a local enquiry is held in respect of such schemes and thereafter the scheme is submitted to the Government for sanction in accordance with the Rules and it is finally sanctioned, it is only then that a declaration under section 6 can be made. So, whether these declarations published on the 31st May and 21st June 1951 are treated' as declarations under section 6, or combined declarations under section 6 read with section 7, they must be held to be invalid.