SAKTIPADA MANDAL Vs. COLLECTOR DISTRICT HOOGHLY

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioners are challenging an order of requisition of land under Section 3 (1) of West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as the said Act) passed by the respondent No. 1. The petitioners' case as made out in the petition is as follows : The petitioners are inhabitants of the village named Anur situated in the district of Hooghly on the border line of the district of Bankura. The said village was a non-irrigated area and there was a lot of difficulties in cultivation of paddy. On the representation of the villagers of the said village, the State Government has installed, about 8 years ago, a deep tube well in the northern part of the village for irrigation facilities in the said village. It is stated that the said deep tube well is the only source of irrigation in the said village and because of the said tube well, the taxes are being regularly collected by the State Government from the said villagers. The lands which are provided with the irrigation facilities from the said tube well have been set out in the petition. It is alleged that the Government of West Bengal has brought out a scheme of digging a canal from the river Kangsabati which is popularly known as Kangsabati Project. The canal dug out from the river Kangsabati has been numbered as canal No. 25 from which various sub-canals are being taken inside the village of that part of the district of Hooghly and also Bankura. One of such sut-can-nals has now been determined to be taken through the area where the aforesaid deep tube well was installed. It is alleged that excavation of the canal would undoubtedly provide irrigation facilities to the villagers but not better than the deep tube well. It is alleged that from the deep tube well, water is available throughout the year, whereas in the case of canal it will be a case of regulated and limited supply of water and that also not throughout the year. It is alleged that the decision of the Government to remove the deep tube well is detrimental and prejudicial to the interest of the villagers. The villagers including the petitioners met the Block Development Officer. Goghat, Hooghly and represented before him whereby they demanded a change of the route of the said canal so that the areas where the deep tube well is already providing sufficient irrigation facilities are not affected. It appears that by his letter dated 28th February, 1973, the Block Development Officer forwarded the mass petition submitted by the cultivators of the Anur Deep Tube Well Centre to the Executive Engineer, Kangsabati Project. In the said letter he expressed his opinion that the existing alignment of the proposed sub-canal falls within command area of Anur Deep Tube Well Centre and in the event of execution of the same through the said alignment, good quality multiple cropped agricultural lands will be affected. The Block Development Officer also requested the Executive Engineer to consider the case and arrange change of alignment suitably to avoid the common area of the Deep Tube Well Centre as far as possible for more agricultural production. It further appears that there were further representations to that effect including a representation by one Nemai Chandra Mondal and one Chandi Das Mandal who are Government nominees to the Irrigation Committee of the said deep tube well, It appears that the Assistant Engineer, Agri-Irrigation Hooghly, II, Arambagh, also wrote a letter to the Executive Engineer, Kangsabati Project Bishnupur Division on 9th October, 1975 stating that it has been reported that the Executive Engineer is going to excavate a drainage channel from the main canal of Kangsabati river which is to be passed through commanding area of Anur Deep Tube Well Centre. In that event the Assistant Engineer requested the Executive Engineer to look into the matter personally so that the alignment of the proposed canal is changed in such a way that the existing commanding area of the said deep tube well is not affected. Even thereafter, there was a mass petition and a representation against the proposed scheme for construction of the said canal. In spite of the same, it appears that by an order dated 2nd December, 1975 the Additional District Magistrate Hooghly, as Collector under the said Act, requisitioned the lands specified in the said order under Sub-section (1) of Section 3 of the said Act for excavation of the said canal in connection with the Kangsabati Project. When the possession was sought to be taken on behalf of the respondents pursuant to the same, this application was moved before this Court and a Rule nisi was issued by me an 19th December, 1975.

(2.) Mr. Bhattacharjee, learned Advocate appearing in support of the Rule, raised threefold submissions before me in challenging the said order of requisition. He firstly contended that the order suffers from non-application of mind because the authority was not aware for what reason the property was required and he did not form the requisite opinion which is condition precedent to the exercise of power under Section 3 of the said Act. It is necessary for the purpose here to set out the provisions of Sub-section (1), of Section 3 of the said Act which is as follows:

(3.) The real submission of Mr. Bhattacharya centres around the language of the order. Accordingly. I asked Mr. Bhattacharya to produce the copy of the order served on the petitioner in this case. From the copy so produced, it was clear that the copy annexed to the petition was not the correct copy of the order served. Having regard to the same, I called for the original order of requisition in this case from the records of the, respondents which was produced before me. From there it appears that the language of the order was to the following effect. I have produced the same as it is, including the crossed out (here underlined) portion :--