INDRA MOHAN SHILL Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) This appeal has been filed challenging a Judgment and order dated 9th July, 2004 passed by a learned Judge of the Writ Court dismissing therein a writ petition which challenged an acquisition proceeding. The short facts of the case are that on or about 18th September, 1987 an order was passed under section 3(1} of West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter called the said Act of 1948). An area of 1.42 acres in plot Nos. 518 and 546/ 2456 in Mouja Kamgachi has been requisitioned by the appropriate authority. This was requisitioned for the purpose of maintaining supplies and services essential to the community, namely water supply scheme of Kamgachi. Thereafter the said requisition proceeding was converted into an acquisition proceeding under the provisions of the said Act of 1948. The appellant/petitioner claims to be the owner of a portion of the said land which was acquircd in the aforesaid proceeding.

(2.) Admittedly, the possession pursuant to the initial requisition proceeding was taken in September, 1987 and in 1991 the appellant/ petitioner filed a suit for declaration and mandatory injunction in Title Suit No. 160 of 1991. In the said suit an ex pane decree was passed declaring that the acquisition proceeding being L.A. Case No. l(g)/85-86 was void, illegal and not binding upon the plaintiff and the defendants were directed by an order of mandatory injunction to dismantle the structure on the suit land within two months. In the writ petition, which has been filed prayers have virtually been made for execution of the said decree. The learned Judge in the Judgment under appeal, has set out various prayers, made in the writ petition and held that prayers a(iv) and (vi) cannot be granted and various other prayers also cannot be granted as the Writ Court cannot execute a decree passed by a Civil Court.

(3.) When the matter was heard before us, the learned counsel for the appellant/petitioner argued that the instant case was initially started as a requisition proceeding under the said Act of 1948. lie further submitted that in all cases of requisition under section 3(2) of the said Act, service of the order of requisition is a must and the learned counsel also submitted that no service has been effected on him and the order of requisition on the basis of which possession was taken in 1987 is illegal. In support of his cotention the learned counsel relied on two Judgments of Calcutta High Court in the ease of Tarak Nath Sen v. First Land Acquisition Collector & Ors. and also on another Judgment rendered in the case of Syed Faieyab Ali Meerza v. The Union of India & Ors. Relying on these two Judgments the learned counsel submitted that in both the Judgments it has been held that service is a mandatory statutory requirement under section 3(2) of the Act and in this case, service having not been effected the entire requisition proceeding is bad. Since the initial proceeding for requisition is bad. the subsequent acquisition cannot be sustained. This Court finds that the said case was a new case which was sought to be made out for the first time before this Court. This Court wanted the learned counsel for the writ petitioner to point out whether any such case was made out in the writ petition. The learned counsel did not succeed in showing before the Court that any such averment was at all made in the writ petition which was filed and out of which the present appeal arises. On the other hand, from the averment made in paragraphs 2 & 3 of the writ petition this Court finds that the averment made therein are totally vague. In those paragraphs there is no averment about non-service of the notice of requisition. Nor was it disclosed when the petitioner purchased the property. There is also no averment whether the name of the petitioner has been muttated or not.