NABA KUMAR SEAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for an appropriate writ for cancellation of certain notifications issued under the provision of the West Bengal Land Development and Planning Act," 1948 and for direction upon the opposite parties to forbear from taking possession of certain plots of land covered by the said notifications.

(2.) The petitioner is the owner of 18 Bighas of land comprising certain cadastral survey plots in Mouza Ukhila Paikpara in the, Police Station Sonarpur in the district of 24-Parganas, the particulars whereof are sent out in sch. I annexed to the petition. By a notification issued under Section 4 of W. B. Act 21 of 1948 bearing no. 92 L. Dev. dated 6-1-1950 and published in the Calcutta Gazette dated 12-1-1950 the Government declared that the cadastral survey plots, particulars whereof are given in sch. II to the petition, are likely to be needed for the settlement of immigrants and for creation of better living conditions in the said village Ukhila Paikapara. The petitioner there-after filed an objection against the intended acquisition but no hearing was given to the petitioner. Thereafter, a notification purporting to be issued under Section 6 read with Section 7 of the said Act was published in the Calcutta Gazette, dated 27-4-1950 declaring that the said plots covered by the notification under Section 4 were needed for the settlement of immigrants and for creating better living conditions in the said village. On or about-16-12-1950 possession of the plots mentioned in Sch. II to the petition, excepting plots nos. 259, 571 and 2490, were taken by the Government. It is alleged in the petition that no notice for delivery of possession was ever served upon the petitioner. In May 1951 the Government attempted to erect certain structures on the said lands and stored building materials near about the petitioner's lands. In the early part of June 1951, the petitioner filed an application before the Special Land Acquisition Officer at Alipore in which request was made to the Land Acquisition Officer to forbear from giving effect to the notifications or taking any steps pursuant thereto but no attention was paid to such request. On 22-6-1951 the petitioner moved this Court and obtained the present rule. The petitioner has challenged the notifications and action of the Government in taking possession, on various grounds which are set out in the petition. But at the hearing the learned counsel appearing for the petitioner has confined himself to only some of those grounds challenging the validity of the notifications and the action taken pursuant thereto.

(3.) It is contended by the learned counsel for the petitioner that as there is no provision under the W. B. L. D. & P. Act for release of any portion of the lands which are covered by the notification issued under Section 4 and Section 6 and to acquire the remaining portion of the land covered by the said notification, the release of a portion of the lands from acquisition has made the entire acquisition proceedings bad. It appears to me that, this contention of the learned counsel for the petitioner has no force. It is clear from Section 8, Land Development Act that after a declaration under Section 6 the provisions of the Land Acquisition Act (Act 1 of 1894) apply to me acquisition made under W. B. L. D. & P. Act. Section 48, Land Acquisition Act, provides that excepting the cases provided for under Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. This section makes it clear that before actual possession is taken the Government is at liberty to withdraw from the acquisition. There is nothing in Section 48 to suggest or indicate that it is not open to the acquiring authority to make acquisition of any portion of the land in respect of which notices of acquisition have been issued under the provisions of the Act and withdraw from the acquisition as to the rest. This principle embodied in Section 48, Land Acquisition Act is applicable to acquisition made under the Land Development Act, 1948 and it is therefore open to the Government to release portions of the lands from acquisition under the Land Development Act. There is no provision either in the Land Acquisition Act or in the Rules made thereunder requiring any notification to be published in case the Government proposes to withdraw from any particular acquisition. Even if any such notification is necessary in order to make withdrawal from the acquisition complete, there is no doubt that non-publication of any such notification declaring the fact of withdrawal from the acquisition does not make the notifications issued under Section 4 and Section 6 read with Section 7 or any proceedings taken thereunder invalid.