MOHAN KOIRI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal against the judgment and order of D. Pal, J., discharging the rule obtained by the petitioners. The petitioners' case, in short, is as follows: The petitioners are thika tenants in respect of 3/4th portion of premises No. 121/5, Circular Garden Reach Road in the suburb of Calcutta. They have been residing there since their fore-fathers for over 60 years constructing huts thereon. By a notification dated March 1, 1962, under Section 4 of the Land Acquisition Act, (Act I of 1894), the Government of West Bengal notified that a piece of land comprising premises No. 121/5, Circular Garden Reach Road is likely to be needed for a public purpose, not being a purpose of the Union, namely, for the expansion and development of Kidderpore Academy in Ward No. 85 of the Calcutta Municipality. This notification invited objections to the said acquisition from any person interested in the land within 30 days from the date of publication in the locality. The petitioners received no individual notice and being illiterate persons they could not file any objection under Section 5-A of the Act Thereafter without giving any opportunity to the petitioners, a declaration dated 26th February, 1965, was published under Section 6 of the Act declaring that the said piece of land was needed for a public purpose, partly at public expense and partly at the expense of the authorities of the Kidderpore Academy. The petitioners stated that the Kidderpore Academy is a private institution for which such acquisition was not available in law. The petitioners submitted that there was no inquiry before the declaration and the Kiddarpore Academy had recently purchased in 1959 lands adjoining the institution which had been kept vacant. These facts were not considered by the Second Land Acquisition Collector in issuing the said declaration. It may be stated here that the notification and the declaration have been signed by the Deputy Secretary to the Government of West Bengal. The petitioners contended that there was no satisfaction of the Governor to the effect that the lands were needed for the public purpose and the Governor did not apply his mind in the matter. For all these reasons as also for the reason that expansion and development of a private institution are not public purpose, the petitioner moved an application in this Court under Article 226 (1) of the Constitution praying for a rule nisi on the respondent the Government of West Bengal and others to show cause why a writ in the nature of mandamus should not issue directing them to forbear from giving effect to or to withdraw or cancel the notification and declaration mentioned above and also for a writ in the nature of certiorari quashing the said notification and declaration.

(2.) On this application a rule nisi was issued on June 15, 1966 in terms of the prayer referred to above and subsequently an interim order was issued staying further proceedings. The respondents on being served with notice of the rule filed an affidavit-in-opposition denying all the material allegations made in the petition. It was stated that the notification under Section 4 of the Act was duly published in the Calcutta Gazette on March 15, 1962, as also at the convenient place in the locality including the notified area. The individual notices were also served but as the petitioners refused to accept the notices, they were served by hanging. No objection was received from the petitioners and in the report under Section 5-A the only objection, which was filed by the owner, was duly considered. It was stated that the acquisition proceeding was in accordance with law and the petitioners at that stage had no right to challenge the declaration.

(3.) An affidavit-in-opposition was also filed on behalf of Kidderpore Academy stating that the institution, the only Higher Secondary School for Bengal Boys in the locality, was a public one under the statutory control of the Education Directorate and West Bengal Board of Secondary Education. (sic) was further stated that no portion of the lands is remaining unutilised as alleged by the petitioners and a building on half of the vacant portion has been constructed while the other half has been kept vacant for a breath-ins ground for 1500 students reading in the institution as also for holding drills, physical exercises by NCC trainers etc. It was accordingly submitted that the petitioners were not entitled to any relief.