SYED ABDUL GAFFAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner is the Secretary of a Wakf Estate created by a registered deed for religious purposes. His complaint is that the acquisition proceedings under the Land Acquisition Act in respect of certain plots of land belonging to this Wakf estate are illegal and unconstitutional. It is not disputed that the purpose of the acquisition, namely, the development of an educational institution is a public purpose but it is contended that land devoted to one public purpose cannot be diverted to another public purpose and that the proposed acquisition would be violative of article 26 of the Constitution.

(2.) IT would appear from the counter-affidavit and the papers annexed thereto that the objection preferred on the foregoing grounds by the petitioner as well as by the Commissioner of Wakfs was actually heard by the land Acquisition Collector, and, by his report at Ann. Y, he closely examined the objections in the presence of a lawyer representing the petitioner. He released certain portions which were actually used for religious purposes but disallowed the objections as regards other plots which lay vacant and which, according to the Collector, were not necessary for the performance of the religious functions. This being a question of fact which the Collector was competent to determine, the Collector's findings cannot be reviewed by this Court.

(3.) IT is, however, contended on behalf of the petitioner that since the. disputed lands appertain to a religious wakf dedicated to the public, respondents have no power to divert them to some other public purpose. This very question, however, has been dealt with by our Supreme Court in very early cases and has been answered against the petitioner's contention. The power of Eminent domain of the State as a sovereign power which overrides all other rights. In the United States, therefore, it has been held that in the absence of any specific constitutional prohibition, there is nothing to bar the taking of land already devoted for a public purpose for another public purpose (1) West River Company v. Dix, (1848) 6 How. 507 ; Nicholas on Eminent domain, Vol. I, p. 150. The law on the point was also fully discussed by our Supreme Court in the case of (2) Survapal v. State of U. P. , (1953)SCA 932 (953, 963), and it was laid down that -