Case: Urmila Roy  Vs. M/S Bengal Peerless Hng.Devt.Co.Ltd.&amp;Ors

sector company with the Housing Board; the constitution of the Board of Directors of the joint sector company; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project; control on the fixation of prices of the flats to be constructed by the joint sector company; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for those people to acquire a house of their own with escalating real estate prices; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company, viz. Bengal Peerless Housing Development Co. Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstances, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government oversees the housing project and has also imposed certain terms and conditions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Housing Board to get the housing project executed through a joint sector company is quite understandable. We also find the impugned action is within the purview of law and is valid." 20. In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 the land-owners had, in fact, waived their right to challenge the acquisition. This letter is reproduced hereunder in extenso: "To Date:8th March 2001The Special Land Acquisition Officer,South 24 - Parganas, 5th Floor,New Treasury Buildings,Alipore, Kolkata - 700027.Sir,Re: Barakhola Mouza J.L.No.21 P.S.KasbaThis has reference to your acquisition notice dated 12.1.2001 for 12.67 acres land in Plot No.125 & 126 of the subject mouza.In this connection, I would like to submit that I am the Power of Attorney (Registered) holder of the successors of late Abhay Pada Pain who was the owner of the aforesaid plots as evident from the ROR. A copy of the P/A is enclosed for your kind perusal. Incidentally Plot No.126 was duly demarcated showing the vested portions and the retained portions by the District Authorities as per copy of the Map enclosed along with a copy of the Minutes of the meetings held in Chamber of the then ADM & L.R.O.South 24 - Parganas on 20.3.1996.Subsequently 13.56 acres of land was sold to the following parties and registered under section 41 on 25.6.1999 of which deed copies are enclosed. Since the tax has not been assessed, as yet for value to ascertain additional stamp duty, the same have not been paid so far.However, enquiries are under way, but in the meantime Khazna has been paid up - to - date as per copies of receipts dt.18.1.2001 enclosed herewith.The transfers are:-a) Sri Debabrata Choudhary :b) Sri Shreekanta Ray : 6.00 acresc) M/s. Anarean Estate Co. Ltd. :d) Sri Swadesh Ghosh :e) Sri Swapan Dey :f) Smt.Ila Dey : 6.58 acresg) Sri Saptashi Dey :h) Smt.Basanti Ghosh :The aforesaid transferees did not raise any objection to govt. acquiring. The land for housing, in face, I had moved an idea to West Bengal Housing Board and willing to negotiate along with the transferees price for your acquisition.Please do let me known for any further information and clarification / assistance, a may be required.Thanking you, I amYours faithfullySd/-Urmila RayConstituted Attorney ofSmt. Lily PaulSmt. Dolly PaulSmt. Mira RaniBasuEncloseda) Copies of 8 nos.deedb) Copy of power of attorneyc) Copy of witness by ADM,DL,LROd) Copy of Minutes of meeting dt.26.3.96e) Copy of Khana receiptsC 735407 dt.Rs.32,277/-C 735408 dt.18.1.01 for Rs.2709" 22. It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The learned counsel for the respondent has on the contrary referred us to Sections 17, 18 and 27A of the 1972 Act to submit that the said Act specifically provided for the transfer of the acquired land to a Joint Sector Company for the purpose of the execution of the Housing Scheme with the previous approval of the State Government and that the scheme had indeed been framed under Sections 17 and 18 and thereafter entrusted for execution to the Bengal Peerless. It has been submitted that though Bengal Peerless had been entrusted with the execution of the scheme the overall control remained with the Housing Board which was, in fact, an extension of the State Government itself and the State Government a fortiori retained overall control in the execution of the scheme.We find merit in this submission. The record indicates that as a consequence of a Memorandum of Understanding dated 13th September 1993 a Joint Sector Company for the execution of the housing scheme had been created on 20th May 1994 and it was provided that 49.5% of the shares capital would be held by each of the two i.e. the Housing Board and Bengal Peerless and the balance 1% would be held by the public and the company would be run independently by nine Directors, of whom five including the Chairman were to be nominated by the State Government. It is also relevant that the scheme had, in fact, been prepared by the State Government after due deliberation and had been initiated as per the provisions of the 1972 Act by virtue of a meeting held on 17th May 2000 in the Office of the Secretary, Housing Department, the Commissioner of the Housing Board, the Land Acquisition Collector and several other senior officials and the proposal had been mooted for the acquisition of the land for the purpose of a scheme for weaker sections of society and others with modest incomes. The scheme also provided for the construction of 1800 dwelling units of various categories with at least 50% to be earmarked for the lower and middle income groups with the price subsidized for the former and all flats for the middle income group to be provided on "no profit no loss" basis, and for facilities for schools, roads etc. for the benefit of those who were ultimately to reside in the dwelling units. Significantly also, the scheme provided that there would be no escalation on account of any reason whatsoever for the price charged for the dwelling units and that the allotment of the dwelling units would be on the basis of a lottery.We observe that Sectionspecifically authorizes the Housing Board in public interest to entrust a housing scheme to a Joint Sector Company with the previous approval of the State Government. We find that there is no warrant for the proposition that unless a budgetary provision is made by the Housing Board or that a final scheme is prepared in accordance with Section 23 of the 1972 Act, no land can be acquired for the purpose of execution of a housing scheme. It is significant that Section 17 of the 1972 Act itself gives the power to the Housing Board to make a scheme and that Section 27A further authorizes the Board in public interest to entrust a housing scheme to a Joint Sector Company for execution and for that purpose Section 28(2) of the Act further authorizes the Housing Board to take steps for compulsory acquisition of any land required for the purpose of a housing scheme.In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 thehad, in fact, waived their right to challenge the acquisition.It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.