LAWS(CAL)-1962-12-15

RAM KUMAR AGARWALLA Vs. STATE OF WEST BENGAL

Decided On December 19, 1962
RAM KUMAR AGARWALLA Appellant
V/S
STATE OF WEST BENGAL Respondents

JUDGEMENT

(1.) This appeal from an order of Sinha, J., relates to the question of the validity of the acquisition for Bharat Sevasram Sangha of about 17 cottahs of land forming part of premises' No. 1-A, Cornfield Road in South Calcutta.

(2.) The appellants along with certain other persons are the lessees in respect of a plot of land being premises No. 1-A, Cornfield Road and premises Nos. 203, 205-A and 2o7-A, Rash Behari Avenue, Calcutta with three houses on the said premises Nos, 203, 205-A and 207-A, Rash Behari Avenue, Calcutta. There was a big tank covering a certain area of the said premises No. 1-A, Cornfield Road and for the purpose of constructing some more houses for the accommodation of the members of the family of the appellants and their deceased brother, the said tank was partly filled up at a huge cost. The plan for construction of the proposed houses at premises No. 1-A, Cornfield Road was sanctioned by the Corporation upon the application of the appellants on I3th May, 1955. Prior to that in 1954 some of the members of the Governing Body of Bharat Sevasram Sangha which is an organisation formed for the purpose of carrying on religious, philanthropic and charitable activities and which had its head office at premises No. 211, Rash Behari Avenue which is contiguous to premises No. 207-A, Rash Behari Avenue and also continguous to the premises No. 1-A, Cornfield Road, approached the appellants for a gift of a portion of the premises No. 1-A, Cornfield Road for the purpose of setting up a gymnasium for the inmate of the Sangha. The case of the Sangha however, is that they did not ask for a gift of the land but they wanted to purchase it from the appellants by private negotiation. As the appellants did not agree to the proposal the Sangha made an application to the First Land Acquisition Collector, Calcutta on 2oth October, 1954, for acquiring 12 cottahs of land forming part of the premises No. 1-A, Cornfield Road alleging Inter alia that the land was required by the Sangha for the efficient running and/or expansion of an existing Charitable dispensary attached to the Sangha at No. 211, Rash Behari Avenue. On 30th December, 1954, the appellants received a notice under Section 4 of the Land Acquisition Act, 1894, calling upon them to file objection against the proposed acquisition of 12 cottahs of land by the Government at the expense of the Sangha for the purpose of extension of a charitable dispensary in the interest of the suffering public. The notification under Section 4 was dated 9th December, 1954, and was published in the Calcutta Gazette dated 16th December, 1954. On 20th January, 1955, the appellants filed objections to the proposed acquisition inter alia on the ground that the charitable dispensary was nonexistent and the proposal for acquisition was a mala fide one and the land in question was required by the appellants for building residential houses. On 10th February, 1955, a local enquiry was held by the Second Land Acquisition Collector and on 16th April, 1955, the said Collector submitted his report recommending acquisition of the said land for the extension of the dispensary. But it appears that by a memorandum dated 3rd August, 1955, the State Government informed the Second Land Acquisition Collector of its decision not to proceed with the said acquisition. Thereupon the Second Land Acquisition Collector by a memorandum dated 4th August, 1955, informed the General Secretary of the Sangha about the said decision of the Government not to proceed with the acquisition. But it is alleged that no intimation was given to the appellants about this decision of the Government. In the meantime, after the sanction of the plan the appellants obtained the necessary permit for cement and purchased cement and other building materials for construction of the building according to the plan and stored the same at premises No. 1-A, Cornfield Road and in October, 1956, the contractors employed by the appellants commenced construction of the building according to the sanctioned plan. On 26th October, 1956, a member of the Sangha filed a petition of complaint against the appellant Ram Kumar Agarwalla and others under Section 144 of the Code of Criminal Procedure in the Court of the Police Magistrate, Alipore for the issue of prohibitory order restraining the appellants from proceeding with the construction work on the land alleging that the management of the Sangha had been in possession of the land for over 24 years and had been in actual possession by erecting on it a big corrugated tin structure. On 1st December, 1956, the Police Magistrate, Alipore, drew up proceeding against the appellant and others under Section 144 and directed them not to enter the said land. On 18th December, 1956, the Police Magistrate refused to rescind his order dated 1st December, 1956; as against that the appellant Ram Kumar Agarwalla moved an application being Criminal Motion No. no of 1956 before the Additional District Magistrate, Alipore, who by his order dated 31st January, 1957, allowed the application of Ram Kumar Agarwalla and set aside the prohibitory order. Thereupon the Sangha moved an application under Article 226 of the Constitution before this Court and obtained a Rule Nisi being Civil Rule No. 381 of T957 and an interim injunction restraining the appellants from going on with the construction work. In the meantime, on or about 21st November, 1956, the appellant received another notice from the Second Land Acquisition Collector that about 17 cottahs of land at premises No. 1-A, Cornfield Road were likely to be needed for a public purpose, namely, for the purpose of Sangha for the construction of Social Worker's quarters, Students' Home, Publication Department, Guest House and Panthasala. This notification was under Section 4 of the Land Acquisition Act dated 29th October, 1956, and was published in the Calcutta Gazette dated 30th October, 1956. It appears that on the same date and in the same issue of the Calcutta Gazette was published a notification cancelling the previous notification for acquisition under Section 4 dated 9th December, 1954. Upon receiving that notice the appellants made enquiries and came to learn that that fresh, notification under Section 4 had been published as a result of an appeal made to the Minister in charge of Land and Land Revenue, Government of West Bengal on the 31st August, 1956. On the i2th December, 1956, the appellants submitted a written objection against the proposed acquisition on the ground that the application was a mala fide one and the Sangha possessed two contiguous premises being No. 237 Rash Behari Avenue and No. 7/2Q, Zarnir Lane which was about 500 ft. away from the Head Office of the Sangha and about 21 cottahs of land were lying vacant and were available for the purposes for which the Sangha had set the machinery of the provisions of the Land Acquisition Act in motion. A local enquiry was thereupon held by the Second Land Acquisition Collector and he submitted his report on the 26th December, 1956. It is inter alia stated in the report that the entire area of the land held) by the appellants as lessees at premises No. 1-A, Cornfield Road comes to about 4 acres and the land under acquisition is situated at the northeastern corner of the said premises. The entire area was lying vacant for many years, but recently construction had been started on a portion 06 it measuring about one bigha but no actual construction was made on any portion of the land proposed for acquisition. But the appellants intended to construct some out-houses, garages etc., on a portion of the land proposed to be acquired although there was plenty of vacant land lying in the other portion of the premises which could be easily utilised for the construction of the said outhouses etc., and there was also vacant space available at the back of premises Nos. 203, 205-A and 2O7-A, Rash Behari Avenue on which said outhouses etc., could be conveniently built. It is further stated in the report that from the nature of the new constructions which had been recently started it seemed that these were intended to be-let out to tenants and were not meant to be kept by the appellants or the members of their family. The Second Land Acquisition Collector also finds in his report that The objects for which the Sangha requested the Government to acquire the land were bona fide objects and in fact the Sangha had been maintaining Students' Home, Publication Department, Guest Houses and Panthasalas at its various branches but had been unable to set up such organisation at its headquarters for lack of accommodation or space and that the public in general will be benefited by the extension of the activities of the Sangha for which the proposed acquisition is intended, is, according to the Collector, apparent to any fair-minded person. Dealing with the objection of the appellant as to the mala fide nature of the proposed acquisition, the Second Land Acquisition Collector states that the reasons why the Government ultimately decided not to proceed with the acquisition for the purpose of extension of a charitable dispensary are not known to him, but as the activities of the Sangha are manifold the mere fact that the Government decided not to proceed with the acquisition for extension of a charitable dispensary would not ipso facto render a proposal to acquire the land for other recognised purposes, a mala fide one. In the circumstances, he recommended that the proposed acquisition should proceed. Thereafter on or about 24th May, 1957, the Sangha entered into an agreement with the State of West Bengal for the acquisition of the said plot of land at its own cost. The agreement was published in the Calcutta Gazette dated 30th May, 1957. The agreement appears to have been entered into under Section 41 of the Land Acquisition Act and was published in the Gazette as required under Section 42 of the Act. Clause 4 of the said agreement is as follows : -

(3.) Thereafter on the 31st May, 1957. a declaration under Section 6 of the Land Acquisition Act was published in the Calcutta Gazette Extraordinary stating that the Governor was satisfied that the land was needed for a public purpose ... ..... namely for the Bharat Sevasram Sangha for the purpose of construction of Social Workers' quarters, Students' Home etc. On 10th June, 1957, notices under Sections 9 and 10 of the Land Acquisition Act were served on the appellants. On the 28th June, 1957, the appellants moved this Court under Article 226 of the Constitution challenging the validity of the acquisition proceeding and the various notifications mentioned in the prayers of the petition and a Rule Nisi was issued by Sinha, J., on the 28th June, 1957. In the affidavit in opposition which was filed in answer to the petition under Article 226 of the Constitution it is inter alia stated in paragraph 15 as follows:-