DHIRENDRA NATH PAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Both these Civil Rules are directed against Order No. 4/78/11/48 dated 3rd May, 1978 passed by Sri S.K. Bhattacharya, 1st Land Acquisition Collector under sub-section (1) of Sec. 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948. In both the said Civil Rules, the respective petitioner is tenant in the respective portion of premises No. 73A, Sarat Bose Road, Calcutta-26. By the aforesaid impugned order, the Collector under Act II of 1948 requisitioned the eastern portion premises No. 73A, Sarat Bose Road, measuring Rs.0042 acre. It was stated in the said impugned order of requisition that the portion of the said premises was required for the purpose of providing proper facilities for transport and communication viz. for improvement of Sarat Bose Road from Lala Lajpat Sarani to Southern Avenue. The legality and validity of the said order of requisition were challenged by the respective petitioner mainly on the ground that there was no necessity for requisition of the said portion of the premises No. 73A, Sarat Bose Road and that such requisition could not have been made without providing the respective petitioner with alternative accommodation and without giving the petitioners any reasonable opportunity to arrange for alternative accommodation. It was also contended that the impugned order of requisition was bad as the same violated the principle of natural justice. Subsequently with the leave of the Court at the time of hearing, the principal point which was urged by the learned Counsel appearing for the petitioners was that the impugned order of requisition was illegal and without jurisdiction inasmuch as such order of requisition was made for a permanent purpose and from the very beginning the authority was aware that the requisitioned portion of the premises was required for permanent purpose and as a matter of fact, the said portion was intended to be demolished for broadening the existing road viz. Sarat Bose Road.

(2.) Mr. Bhaskar Bhattacharjee the learned Counsel appearing for the petitioner however very fairly conceded at the the of hearing of the Rule that although it is desirable on the part of the Requisitioning Authority to give reasonable opportunity to the affected persons of hearing before passing the order of requisition but the vires of the West Bengal Act II of 1948 and/or the validity of the order of requisition simply on the ground that prior to the order of requisition an opportunity of being heard was not given, cannot be urged by the petitioners in the instant Rule in view of the decision at the Supreme Court made in the case of Sachindra Mohan Nandi Vs. Stale of West Bengal, reported in AIR 1965 SC page 963. It was decided by the Supreme Court in the aforesaid decision that the West Bengal Act II of 1948 was quite intravires although there was no provision for giving an opportunity of hearing to the affected party before passing the order of requisition. The Supreme Court observed in the said decision that the affected party could very well make representation before the State Government even after the order of requisition was made and it was reasonably expected that the State Government would consider such representation of the aggrieved party Mr. Bhattacharjee however contended that requisition, unlike acquisition, is of temporary nature and even if requisition extends over a number of years the temporary character of requisition is not changed. The requisition has basically an element of temporariness and not the element of permanance as in the case of acquisition. For this contention Mr. Bhattacharjee referred to the decision of the Supreme Court made in the case of The Commissioner of Income-tax Vs. Mama Ramji & Co., reported in AIR 1973 SC 515. Mr. Bhattacharjee contended that the West Bengal Act II of 1948 was enacted for the purpose of speedy requisition of the land for the purposes mentioned in the said Act. It was also provided in the said Act that if during the continuance of requisition the authorities feel that the said land is permanently required for a public purpose, the requisitioned land can also be acquired under section 4 of the West Bengal Act II of 1948. Mr. Bhattacharjee also contended that if from the beginning it appears to the authority concerned that the land is not at all required for temporary purpose but the land is really required to be utilised permanently, then it is a case of acquisition from the very beginning and in such case, the authorities are not permitted to requisition the land simply for the purpose of acquiring the same under the West Bengal Act II of 1948 subsequently. According to k Mr. Bhattachaijee, in such circumstances, the Requiring and/or Acquiring authority must proceed under the Land Acquisition Act of 1894 which is the parent Act for acquisition of land for public purpose. Mr. Bhattacharjee contended that the impugned order of requisition of the portion of premises No. 73A, Sarat Bose Road under the West Bengal Act II of 1948 is nothing but an attempt to practise fraud on the Statute. Mr. Bhattacharjee contended that the Collector under Act II of 1948 acted in colourable exercise of power in purporting to pass the impugned order of requisition when he knew fully well from the nature of requirement that the said portion of the premises No. 73A, Sarat Bose Road was required permanently and as a matter of fact, the said portion of the premises was to be demolished for broadening of Sarat Bose Rood. Relying on the aforesaid decision reported in AIR 1973 Supreme Court page 515, Mr. Bhattacharjee contended that the requisition has no element of permanence, but by the impugned order, the Requiring Authority intended to utilise the requisitioned portion permanently by changing the nature and character of the subject matter of requisition. Mr. Bhattacharjee also contended that when an order of requisition is passed in respect of certain land under the said West Bengal Act II of 1948, the ownership still remains with the owner and he is entitled to compensation under the provisions of the Act itself for the use and occupation of the Requiring Authority. Mr. Bhattacharjee submitted that if the requisitioned premises is demolished and is made part of a widened road viz. Sarat Bose Road, then there is no question of retaining the ownership in respect of the requisitioned premises by the admitted owner and in such circumstances, an order of requisition cannot be passed.

(3.) Mr. Bhattacharjee next contended that the order of requisition is also bad because the said order suffers from vagueness. The boundary of the requisitioned portion of the premises was not properly given and extent of the eastern portion which is intended to be requisitioned cannot be definitely fixed up because the boundary of the eastern portion is quite vague. Mr. Bhattacharjee next contended that the order of requisition is also bad because there was no urgency for requisitioning the said premises. Mr. Bhattacharjee contended that it must be established by the Requiring Authority that there was urgency for passing the order of requisition but it does not appear from the impugned order that the authority concerned was satisfied that there was urgency for passing the order of requisition under the West Bengal Act II of 1948. Mr. Bhattacharjee also contended that from the facts and circumstances of the case it will also appear that there was no urgency for passing the order of requisition. It will appear from the materials on record that after 13 months from the date of proposal by the concerned department, the said order of requisition was made. The said fact establishes that the Requisitioning Authority was not satisfied that there was any urgency in the matter. Accordingly, Mr. Bhattacharjee contended that even assuming that an order of requisition can be made in respect of a land which is required permanently for public purposes mentioned in Act II of 1948, such order could not have been made in the instant case in the absence of any urgency.