PRAFULLA CHURAN LAW Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Court : The writ petitioners are the owners of premises No. 14 Hare Street, Calcutta (hereinafter referred to as the 'said premises'). The premises consists of an area of 10 Cottahs 7 Chittacks 15 Sq. ft. of land and a three storied building standing thereon situate in BBD Bag in close proximity to Telephone Bhawan, the GPO and the Reserve Bank of India and other important office complexes. On or about 2.3.44 the entire second floor of the said premises was requisitioned under the Defence of India Act which came into effect from 2.3.42 at the rate of occupation charges of the said floor of Rs. 272 per month payable according to English Calendar month. The same was subsequently followed to be continued by a requisition order under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 and the same is under the possession of the Department of the State Government. In the said occupied portion of the second floor of the premises, West Bengal Ceramic Development Corporation, a Unit of Cottage and Small Scale Industries Limited has been occupying the said premises. A writ petition was moved challenging the order dated 13.9.59 which was issued for requisition of the entire second floor under the said Act of 1947 which was subsequently numbered as Matter No. 3601 of 1990. The High Court at Calcutta was pleased to quash the order of requisition of the second floor of the said premises and respondents were directed to hand over possession.

(2.) Thereafter, by a notification bearing No. Calcutta No. 8603 LA(II)/SC/-19/90 dated 17.8.90 issued by Land Acquisition Collector, Calcutta, the respondents authorities purported to acquire the entirely of the second floor of the said premises under Land Acquisition Act. The same was followed up by filing of another writ petition under Article 226 of the Constitution of India wherein the notification dated 27.8.90 was challenged and by an order dated 5.9.91 the High Court, Calcutta quashed the said notification dated 27.8.90. It has been contended that in terms of section 10B of the said Act of 1947 when an order of requisition of any premises continued for a period more than 25 years, the State Government would be required to hand over the possession of said premises after coming into force of the West Bengal Premises Requisition and Control(Temporary Provision) Act, 1986. Sometimes in June, 1993, the petitioners filed another petition under Article 226 of the Constitution of India in the High Court at Calcutta with a prayer that respondents be directed to hand over possession forthwith and to pay compensation at the rate of Rs. 10 per Sq. ft. for use and occupation of second floor of the said premises. By an order dated 18.8.93 Tarun Chatterjee, J. disposed of the said writ petition by making the rule absolute with a direction upon the respondents to deliver possession to the writ petitioners within 4 months from the date of communication of the order with a rider clause that during the period of continuance of the said 4 months it would be open to the concerned respondents to acquire the property in accordance with law. Against the said order an appeal was taken out and a Division Bench of the High Court at Calcutta by an order dated 18.4.94 disposed of the said appeal by directing the respondent authorities to pay by way of ad-interim measure a monthly compensation at the rate of Rs. 10 per Sq. ft. and the direction was passed upon the respondents to complete the acquisition proceedings within 6 months from the date thereof failing which the respondents would be liable to hand over vacant possession. In the meantime, on 5.8.94 the respondent No. 3 published a notification bearing Calcutta No. 2024-LA(II)/5C-19/90, dated 19.7.94 in the Calcutta Gazette whereby it was stated that the said premises is likely to be taken on behalf of the State Government for public purpose for providing permanent accommodation for Unit of Cottage and Small Scale Industries and also for West Bengal Ceramic Development Corporation. It was further mention in the notification dated 19.7.94 that respondent No. 3, namely, the First Land Acquisition Collector, Calcutta in exercise of his power conferred by sub-section (4) of section 17 of the Land Acquisition Act, the Governor is pleased to direct that provisions of section 5A of the said Act of 1894 shall not apply to the said premises. The respondents, however, filed an application before the Division Bench for extension of time to complete acquisition proceeding and by an order dated 15.11.94 the High Court rejected such prayer and dismissed the said application. The respondent No. 3, as mentioned earlier, issued a declaration bearing No. Calcutta No. 3122-LA/5C-19/90, dated 16.6.95 issued under section 6 of the said Act and the same was published in the Calcutta Gazette on 18.7.95. Thereupon by a notice dated 10.10.95, the Land Acquisition Collector intimated the petitioners that the possession of the premises would be handed over to the petitioners on 16.10.95 at 1.00 p.m. but the same was not delivered to the petitioners. In view of the alleged non compliance of the order passed by the Division Bench of this High Court the petitioners filed an application for contempt and while disposing of the said contempt proceeding, the Divisions Bench extended time to complete the proceedings for acquisition in respect of said premises till 31.12.95. On 29.12.95 the petitioners received a copy of the Memo bearing No. 411(16)/2, dated 28.12.93 issued by the said respondent No. 3 addressed to the Special Land Acquisition Judge, Alipore whereby the petitioners were informed that an ex-parte award for a sum of Rs. 52,39,306.74 has been made by the said respondent in respect of the said premises and the cheque for the aforesaid amount has been deposited by the respondent No. 1 to the said Authority. The said award was passed ex-parte without any opportunity of representation nor it transpires that any notice notifying the intention to proceed ex-parte has been ever issued. A prayer for postponement of the hearing made by the petitioners through their Advocate-on-Record vide his letter dated 8.12.95, in the meantime, stood rejected. The petitioners, without prejudice to their right, sometime on 28.2.96 have filed an application under section 18 of the said Act. In this writ petition inter alia amongst others a prayer for issuance of Writ of Mandamus was made to cancel and/or to revoke the notification bearing Calcutta No. 2024-LA (II)/5C-19/90, dated 19.7.94 issued by the respondent No. 3 published in the issue of Calcutta Gazette on 5.8.94 and for revocation of declaration contained in Calcutta Gazette No. 3122-LA/5C-19/90, dated 16.6.95 issued by the said respondent No. 3 under section 6 of the L.A. Act published in the Calcutta Gazette on 18.7.95 and for other ancillary and/or analogous reliefs.

(3.) As referred to earlier, one of the major challenges which was thrown is about the notification dated 19.7.94 as stated earlier issued by the respondent No. 3 published in the issue of Calcutta Gazette on 5.8.94 which is marked as annexure 'C' appended to the writ petition. From the perusal of the contents of the said notification as published in the Calcutta Gazette, it appears that there was a reference made therein that in exercise of powers contained in terms of sub-section (4) of section 17 of the Land Acquisition Act, the Governor is pleased to direct that the provisions of section 5A of the Act shall not apply to the lands as prescribed in the Schedule mentioned therein to which, in the opinion of the Governor, the provisions of sub-section (1) of section 17 of the said Act are applicable. In view of the challenge thus thrown, there were contentions and counter-contentions raised by the learned counsel appearing for the parties with regard to construction of section 17(4) of the Land Acquisition Act. Section 17(4) as it is couched refers to the provisions of sub-section (1) and sub-section (2) of section 17 and where the said sub-sections are applicable, then only the question of invocation of the non application of provisions of section 5A shall apply. As a result of the same it is necessary to carefully go through the provisions as separately contained under sub-section (1) and (2) of aforesaid section 17 of the Act. section 17(1) provides that in case of urgency whenever the appropriate Governments so directs on the expiry of 15 days from the publication of the notice mentioned in section 9(1) can take possession of any waste or arable land needed for the public purpose or for a company. Section 17(2) stipulates whenever owing to any sudden change in the channel of any navigable river or other unforseen emergency it becomes necessary for any Railway Administration to acquire immediate possession of any land for the maintenance of traffic or for the purpose of making thereon a river side or Ghat Station or of providing convenient connection with or access to any such Station the Collector may after the publication of the notice, mentioned in sub-section (1) and with the previous consent of the appropriate Government, enter upon and take possession of land which shall thereupon vest in the Government free from all encumbrances. It is contemplated in the Act that after publication of preliminary notification issued under section 4 of the Land Acquisition Act, a right of objection is being conferred on the person affected or any person who is interested in the land in question which afflicted by notification under section 4 and he can raise such objection within a period of 30 days from the date of issuance of such objection. The same has got to be followed by due opportunity of hearing to be given to the objectors raising objection under provisions of section 5A of the Land Acquisition Act. The said objection be speaks of a valuable right of a person interested in the land being afflicted by the notification and the same when it is threatened to be taken away it will have a tendency to make and invoke into a valuable right conferred under the statute in favour of the person interested in the land. The right of objection and/or hearing can be taken away or abridged on the formation of opinion on the part of the appropriate Government provided the urgency is fulfilled in terms of section 17(1) or 17(2) of the Act. So far as section 17(1) of the Act is concerned, it only stipulates the provisions of urgency but section 17(2) tends to elaborate immediate necessity necessitating the formation of opinion of urgency owing to sudden change of the force of river or unforseen emergency or necessary for Railway Administration for maintenance of a traffic or a river side ghat station or for making provisions of convenient connection or any access to such station. A comparative reading of Clauses 1 and 2 tends to suggest that provisions engrafted under section 17(2) are of such nature that it cannot brook delay of the period of enquiry under section 5A of the Act. The said sub-section is indicative of imperative urgency because of imminent situation warranting interference for taking over the land in question to meet that unforseen circumstances which have taken place suddenly. Even, a moments delay or compliance of procedural prodastination (sic) may fraustrate the very purpose to deal with such situation as contemplated under section 17(2) of the Act. Section 17(2) unequivocally provides for imminent danger and/or threat due to unforseen circumstances which have got to be dealt with by utmost promptitude on the part of the authorities. Section 17(1) only makes a mention of urgency without adumberating the illustrative factors as elucidated under section 17(2) and as such the question may arise as to whether the expression 'urgency' as contemplated under section 17(1) stands on the same parity of footing to that of section 17(2). It provides for a clue for the conspectus of analysis as to whether sections 17(1) and 17(2) are inter-related or they are independent of each other. This court is made to ponder as to why sections 17(1) and 17(2) have been bifurcated and they have not been incorporated in a composite amalgam. Is it with a view that the legislature in its wisdom has bifurcated section 17(1) and 17(2) into separate clauses keeping in view the degree of difference about urgency in section 17(1) and in section 17(2)? It is significant to mention that section 17(4) refers to the removal of the embargo of the compliance of section 5A both in cases covered by sub-section (1) and sub-section (2) of section 17. This court while keeping this point in the background of its analysis has been confronted by number of decisions relied on behalf of the writ petitioners. Mr. Mallick, the learned counsel appearing on behalf of the writ petitioners has referred to the case of Natwarlal Jajerambhai Patel v. State of Gujarat & Others, reported in AIR 1971, Gujarat, 264 and it has been contended by placement of reliance on the said decision that the phrase 'in case of urgency' in section 17(4) has to be read in the light of the provisions of section 5A of the Act. The urgency contemplated by the provisions of sections 17(1) and 17(4) of the Act must be of such a character that it cannot brooke the delay of the period of enquiry under section 5A of the Act. If delay is caused, the purpose of acquisition will be threatened to be affected. The urgency must be such that the purpose of acquisition cannot wait for the period of 30 days. A further reference was made to the case of Y.N. Mahajan & Another v. State of Maharashtra & Others reported in AIR 1980, Bombay, 221 where Division Bench of the said High Court has observed that while applying the urgency clause as contemplated under section 17(4) the State should take considerable care and responsibility. Application for urgency cannot be a substitute of laxity on the part of the State administration. The Acquiring authority is considered to be the best judge of the situation and its decision basically subjective would normally not be interfered with by the High Court but where no factor is disclosed and no consideration revealed and the court is left in the dark, then, the application of urgency clause may be put to serious jeopardy. In the background of the above decisions as referred to being relied on by the petitioners, this court of its own wants to consider some of the decisions of the apex court touching on the said point. In this context, a reference may be made to the decision in a case of Deepak Pahwa & Others v. Lieutenant Governors of Delhi & Others reported in 1984(4) SCC, 308 where the following words as contained in the relevant section, namely, 'the issue of the notification' can only signify the completion of the prescribed process rather the twin process of inviting the interested public of the proposed acquisition in the manner provided by section 4(1), that is, by publication in the official Gazette and giving public notice in the locality. It has been further observed in the said decision that very often persons interested in the land proposed to be acquired make various representations against the proposed acquisition. This is bound to result in multiplicity of enquiries, communications and discussions leading invariably the delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. Even a reference was made in the said judgment about the case of Kasireddy Papaiah v. Government of Andhra Pradesh, reported in AIR 1975, A.P., 269 where a reference was made about the delay on the part of the tardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of issuance of the notification and to hold there was never any urgency. This court of its own wants to make a further reference to the case of Rajasthan Housing Board & Others v. Sri Kishan & Others, reported in 1993(2), SCC, 84 where it was held that Government's satisfaction about urgency as contemplated in section 17(4) of the connected Act regard being subjective when there is material upon which satisfaction could have been formed fairly, court would not interfere not would it examine the materials as an appellate authority to see existence of urgency. There is no doubt that an enquiry under section 5A ought to have been held to be a valuable right given to the persons interested. It has been argued by the learned counsels appearing for the petitioners that there was no such urgency as to call for dispensing with the provisions of section 5A of the Land Acquisition Act as it has not so urgent as to brooke and delay and therefore the invocation of urgency was not called for. It is needless to reiterate the salient observations made by the apex court that urgency must exist on the date of issue of the notification. Mere pre-notification delay would not render the invocation of the urgency provisions void. Shorn of repetition it is necessary to keep in mind that in terms of section 17(1) in cases of urgency as contemplated under the said provisions of section 17(4), section 17(1) may come into play and appropriate Government may direct that the provisions of section 5A shall not apply. Similarly, the said clause of section 17(4) will apply also in cases covered by section 17(2) of the Act. Section 17(2) contemplates cases which do not brooke for any delay for which immediate intervention is necessary by way of taking over of the possession and the same was attempted to be illustrated in the said provisions of section 17(2) by taking note of different contingencies. There is no doubt that when immediate steps are required for the appropriate authorities for acquisitions to step into possession and it cannot brooke for any delay, it can waive the provisions of section 5A and it can skip over the same and proceed straight from section 4 to section 6 without taking note of objection under section 5A. The contingent events of immediate imperative need have been covered and contemplated under section 17(2). Similarly, section 17(4) has been made applicable with regard to the cases covered under section 17(1) which only makes reference without illustration about cases of urgency which is dependent on the subjective satisfaction of the authorities. If there are materials on record warranting an inference to be drawn by the appropriate authority either way about urgency, the same is not required to be interfered with as objective considerations and not the germane consideration but non consideration on the part of the appropriate authority is the sina qua non to attract the provisions of section 17(4) of the Act as it has been hinted and indicated earlier that there is difference of degree in a scale of measurement with regard to the barometer of extent to urgency as contemplated in section 17(1) and section 17(2) of the Land Acquisition Act. There is reason to believe that the urgency as contemplated under section 17(1) does not stand on the same parity of footing to that of section 17(2). Section 17(1) obviously include such other cases which are not covered by section 17(2) but they are also considered to be urgent by the appropriate authorities on the available materials before it for which it deems fit to issue the notification in the Official Gazette. The same was followed by declaration also published in the Gazette that it is needed for public purpose for permanent accommodation for unit of Cottage and Small Scale Industries and also for West Bengal Ceramic Development Corporation. It is not out of context to re-mention that the Division Bench of this High Court by an order dated 18.4.94 while disposing of an appeal directed the respondents to complete the acquisition proceedings within 6 (six) months from 18.4.94 and if the same could not be completed, the respondents would be required to hand over possession. In the meantime, before expiry of the aforesaid period of 6 (six) months, the respondent No. 3 published a notification in the Calcutta Gazette on 19.7.94 that the premises would be taken on behalf of the State Government for the reasons mentioned therein. The respondents inspite of filing of their application before the Division Bench for extension of time to complete the acquisition proceeding, the same was turned down by the Division Bench. It was followed by initiation of a proceeding for contempt and the time was extended till 31.12.95. On 29.12.95 the petitioners received a copy of the Memo bearing No. 411(16)/2, dated 28.12.93 issued by the respondent No. 3 whereby the petitioners were informed that an exparte award for a sum of Rs. 52,39,306.74 has been made by the said respondent in respect of the said premises and a cheque of the aforesaid amount has been deposited by the respondent No. 1 to the said authority. The writ petitioners without prejudice to their right sometime on 28.2.96 have filed an application under section 18 of the Land Acquisition Act objecting to the amount as covered by the award passed by the Collector. The same having been filed, it becomes doubtful as to whether it is open to the petitioners to object to the validity of the acquisition proceeding as section 18 is limited to the objection about the adequacy of the amount of compensation mentioned in the award. It is abundantly clear that some urgency has arisen for perpetuation of possession covered by the proposed acquisition on an urgent basis as a sequel to a protracted legal proceeding. In view of the materials there before the authority it cannot be denied that it is a case of no materials about formation of opinion on the part of the appropriate authority about urgency. The adequacy of materials and the propriety of inference drawn by the appropriate authority is not open to be assailed in Writ Jurisdiction in view of the decisions referred to earlier as indicated by the apex court.