Case: Kedar Nath Yadav Vs. State Of West Bengal

units. The names of the objectors are as follows: "1. Kuldip Maity of Beraberi, P.S. Singur;2. Subir Kumar Pal, Director of M/s Shree Bhumi Steel Pvt. Ltd., P.S. Singur;3. M/s. Shanti Ceramics Pvt. Ltd., P.S. Singur;4. Prashanta Kumar Jana, Vill-Habaspota, Singur;5. M/s. Ajit Services Station on behalf of Tapan Kumar Bera, Advocate;6. M/s. Shree Padma Sagar Exports Pvt. Ltd. of Singherbheri, P.S. Singur" 69. Some of these objectors were not given the opportunity to be heard as required under Section 5-A (2) of the L.A. Act. The same ought to have been given to them as required both under the statutory provisions of the L.A. Act as well as the principles of natural justice, as the acquisition of lands of the objectors would entail a serious civil consequence. In the case of Mandir Shri Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 a Constitution Bench of this Court has held that it is the mandatory duty cast upon the Collector to follow the provision of Section 5-A (2) of the L.A. Act as under: "5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5-A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."(emphasis laid by this Court) 70. In the case of Babu Ram v. State of Haryana, (2009) 10 SCC 115 this Court observed as under: "30. As indicated hereinabove in the various cases cited by Mr. Pradip Ghosh and, in particular, the decision in Krishnan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act."(emphasis laid by this Court) From a perusal of the proceedings before the Collector, which are made available to this Court, it becomes clear that the same have been rejected without assigning any clear reasons or application of mind. 71. Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6 of the L.A. Act declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators. Answer to Point Nos. 6, 7 and 8 72. After issuing the notifications under Section 6 of the L.A. Act declaring that the lands have been acquired for the purpose of industrial development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9 of the L.A. Act, to determine the market value of the acquired land and award compensation as required under Section 11 of the L.A. Act which is mandatory for taking possession of the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing a number of cases together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11 of the L.A. Act, is a quasi judicial exercise of power on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1) of the L.A. Act provides that no award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. For non-compliance of the above provisions of the L.A. Act, the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners. ORDER

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

Explanation:
1[ds]The learned senior counsel submit that even before the Supreme Court, the Stateof West Bengalhas stated in its counter affidavit that establishing a new industry is the public purpose as envisaged under Section 3(f) of the L.A. Act and that in the instant case, it was the state government which had acquired the lands in favour of WBIDC for theng its industrialization policy in the State6. The learned senior counsel further submits that in the instant case, having regard to the nature of acquisition of lands made by the previous Government, the lands were acquired by the State Government ints eminent domain power without following the statutory provisions contained in Sections 3(f), 4 and 6 of the L.A. Act as well as Part VII of the L.A. Act. It is submitted that the previous government of the state has violated statutory provisions of the L.A. Act in acquiring the vast extent of lands having immense agricultural potential, thus depriving the agricultural occupation of a largend owners/ cultivators, thereby depriving them of their constitutional and fundamental rights guaranteed under the Constitution of India. It is submitted that the acquisition of the lands in the instant case has been made at the instance of TML. Therefore, the previous Government has violated the law in acquiring the lands. It is submitted that the stand of the present government becomes clear from the fact that it enacted the Singur Act, 2011, the constitutional validity of which has been challenged by TML by way of filing petitions, which were allowed by the High Court, against which judgment, the State Government filed SLPs which are currently pending before this Court. Therefore, the State Government has changed its stand in not justifying the acquisition proceedings.47. We are unable to agree with the contentions advanced by the learned senior counsel appearing on behalf of TML. While it is true that rule of law cannot be sacrificed for the sake of furthering political agendas, it is also a well established position of law that a stand taken by the state government can be changed subsequently if there is material on record to show that the earlier action of the acquisition of lands by the State Government was illegal or suffers from legal malafides or colourable8. Further, in any case, it is also well settled position of law that this Court is not bound by affidavits and counter affidavits filed by the parties. Ints power under Article 136 of the Constitution of India, this Court can examine the material on record in order to determine whether the action of the previous state government in acquiring the lands in the instant case was in accordance with law or not.The above said preliminary objection, as has been raised by the learned senior counsel appearing on behalf of TML is thus, not accepted. We now proceed to decide the matter on merits.A perusal of the notification issued under Section 4(1) of the L.A. Act extracted supra clearly shows that the proposed lands in the notification are needed for the setting up of the Tata Small Car project in mouza Berabery, P.S. Singur, District Hooghly.54. The Cabinet Memo dated 30.05.2006, extracted supra, at Serial No. 3 mentioned acquisition of lands measuring 1053 acres by WBIDC for theof setting upof the Tata Motors `Small Car Project in the StateThe said Cabinet Memo received the approval of the Chief Minister on 05.06.2006 after which the notification under Section 4 of the L.A. Act was published in the official gazette.55. As far as the proposal is concerned, there is nothing on record to indicate that WBIDC made such requisition to the State Government giving its proposal for acquisition of the proposed lands mentioned in the notification issued under Section 4 of the L.A. Act, which are required for `public purpose as defined under Section 3(f) (iii) of the L.A. Act, which enables the WBIDC to give requisition for acquiring the lands in its favour for the planned development of land out of the public funds in pursuance of any scheme or policy of Government. As is evident from the Notifications issued under the L.A. Act and from the cabinet memo, there is no mention about such requisition being made by the Corporation to the State Government regarding the proposed lands being required for acquisition in favour of WBIDC for planned development of land in pursuance of any scheme or policy of the Government. Even from a perusal of the letter dated 29.08.2006, written by the Joint Secretary, Land and Land Reforms Department, Governmentit becomes clear that the state government did not apply its mind while considering the need of the land and merely followed the document on which the Collector had signed.Even if the argument advanced on behalf of TML were to be accepted, that it was the policy of the state government to generate employment and increase socio economic development in the State, the relevant policy documents are not forthcoming in the original acquisition files which were made available for this Court. Thus, by no stretch of imagination can the acquisition of lands in the instant case beo be at theinstance of WBIDC, or for the fulfilment of some scheme of the Corporation or the State Government. Thus, it cannot be said to attract Section 3(f)(iii), (iv) or (vi) either. On the contrary, what is on record is the minutes of meetings between the representatives of the West Bengal Government and TML dated 17.03.2006, which state that TML is interested in setting up a `special category project in the State to manufacture 2,50,000 units for its `Small Car Project. As per the project requirement mentioned in the letter written by Deputy General Manager TML to the Principal Secretary, Commerce & Industries Department, Governmentof West Bengaldated 19.01.2006, 400 acres of land were required for setting up of the factory, 200 acres for vendor park and 100 acres for township. The said letter was forwarded by the Commerce and Industries Department to the Principal Secretary, Land and Land Reforms Department on 24.01.2006 and the Financeir consideration and seeking their views in this regard. It is undisputed fact that the State Government has not deposited the public money towards the cost of acquisition of land to initiate the acquisition proceedings to show that the acquisition of lands is for public purpose which is an essential requirement under the provision of Section 6 of the L.A. Act. As can be seen, the notification issued under Section 6 of the L.A. Act merely provides that the land is needed for the setting up of the Tata Small Car project, which is a public purpose under the L.A. Act.From a perusal of both the statutory provisions of the L.A. Act as well as the case law on the subject referred to supra upon which strong reliance has been rightly placed by the learned senior counsel on behalf of the owners/cultivators and State Government, it becomes clear that the state government can acquire land under the public purpose clauses (iv) and (vii) of the Act for industrial estates, housing colonies and economic parks/zones even where the type of industry has been identified. So, an acquisition made for an industrial estate of a particular type of industry like small cars is permissible under the `public purpose for theof the L.A. Actunder the above clauses of Section 3 (f) of the Act. Before land could be acquired, the procedure consistent with the statutory provisions of law must be followed mandatorily. There is nothing in law which would support the acquisition of land for a particular Company under theic purpose, rendering the exception provided under Section 3(f)(viii)of the L.A. Act3. In this day and age of fast paced development, it is completely understandable for the state government to want to acquire lands to set up industrial units. What, however, cannot be lost sight of is the fact that when the brunt of this `development is borne by the weakest sections of the society, more so, poor agricultural workers who have no means of raising a voice against the action of the mighty state government, as is the case in the instant fact situation, it is the onerous duty of the state Government to ensure that the mandatory procedure laid down under the L.A. Act and the Rules framed there under are followed scrupulously otherwise the acquisition proceedings will be rendered void ab initio in law. Compliance with the provisionsof the L.A. Actcannot be treated as any by the State Government, as that would be akin to handing over the eminent domainte to the executive, which cannot be permitted in a democratic country which isbe governed by the4. In the instant case, what makes the acquisition proceedings perverse is not the fact that the lands were needed for setting up of an automobile industry, which would help to generate employment as well as promote socio economic development in the State, but what makes the acquisition proceedings perverse is that the proper procedure as laid down under Part VIIof the L.A. Actread with Rules was not followed by the State Government. The acquisition of land for and at the instance of the company was sought to be disguised as acquisition of land for `public purpose in order to circumvent compliance with the mandatory provisions of Part VIIof the L.A.This action of the State Government is grossly perverse and illegal and void ab initio in law and such anof power bythe state government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VIIof the L.A.as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a `public purpose on the ground that the setting up of industry would generate employment and promote socio economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with 3 (f)of the L.A.From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Governmentof West Bengaland Cabinet notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular Company (TML), at the instance of that Company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6of the L.A.clearly state that the land in question was being acquiredfor the `Small CarIn view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands beone for `public purpose and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.65. In view of the aforesaid categorical findings recorded by me based on the materials on record, including cabinet memo, minutes of meetings between representatives of the state government and TML as well as the notifications issued under Sections 4 and 6of the L.A.1984, it is clear that the acquisition of lands in the instant case is for the Company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VIIof the L.A.read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for `public purpose under Sections 3(f) (iii), (iv) and (vii)of the L.A.The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VIIof the L.A.and Rules and therefore the acquisition proceedings are liable to be quashed.66. Further, even after the lands were acquired in its favour, TML could not start operations in accordance with the terms of the lease deed. The same becomes clear from a perusal of the letter dated 28.09.2010 written by the Managing Director, India Operations of TML to the Managing Director ofIn view of the foregoing reasons, Point Nos. 1 and 2 are answered in favour of the land owners/cultivators.From a perusal of the materials on record and original acquisition files, it is evident that a largens were filed by the land owners before the notification was issued under Section 4of the L.A.Act. The samewere not considered properly under Section. Notices were issued to the objectors individually but the same could not be served upon the owners/cultivators of the proposed lands to be acquired. It is further mentioned in the record that the announcements were made through loudspeakers and by publications in the newspapers. It has been submitted by Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Stateof West Bengalthat once a decision was taken to serve the land owners/cultivators individually then it should have been ensured by the Land Acquisition Collector that the notices were so served. However, the fact that the same was not done is evident from a perusal of the acquisition files maintained by the State Government.Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6of the L.A.declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.After issuing the notifications under Section 6of the L.A.declaring that the lands have been acquired for theal development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9of the L.A.to determine the market value of the acquired land and award compensation as required under Section 11of the L.A.for taking possessionof the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing aes together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11of the L.A.is a quasi judicialer on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1)of the L.A.Act provides thatno award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. Forof the above provisionsof the L.A.the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners.