Case: Daulat Singh Surana  Vs. First Land Acquisition Collector

2. The appellant is aggrieved by the Notification under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894 dated 13th December, 1994 and 23rd June, 1995 respectively published and made by the Government of West Bengal in respect of premises no.4, Pretoria Street, Calcutta measuring more or less 0.0988 hectare (0.2441 acre)Dated, Calcutta the 13th December, 1994WHEREAS it appears to the Governor that land is likely to be needed for a public purpose not being a purpose of Union namely for permanent accommodation of office-cum-residence of Dy. Commissioner of Police Security Control under Commissioner of Police, Calcutta, Home (Police) Deptt. Government of West Bengal in Police Station District Calcutta Ward No.63 of Calcutta Municipal Corporation, it is hereby notified that a piece of land comprising Western portion of premises No.4, Pretoria Street, Calcutta and measuring more or less 0.0988 hectare (0.2423 acre) and bounded as specified below:-East by: Remaining portion of Premises No.4, Pretoria StreetSouth by: Premises No.5, Pretoria StreetWest by: Premises Nos.12 & 15, Lord Sinha Roadis likely to be needed for the aforesaid public purpose at the public expense within the aforesaid Ward of the Calcutta Municipal Corporation in the City of CalcuttaThis Notification is made, under the provisions of Section 4 of Act I of 1894 to all whom it may concernA plan of the land may be inspected in the Office of the First Land Acquisition Officer, Calcutta, at No.5, Bankshall Street, Calcutta - 700 001In exercise of the powers conferred by the aforesaid Section, the Governor is pleased to authorise the Officers for the time being engaged in the undertaking, with their servants and workmen, to enter upon and survey the land and do all other acts required or permitted by that sectionAny person interested in the above land, who has any objection to acquisition thereof, may within thirty days after the date on which public notice of the substance of this Notification is given in the locality, file an objection in writing before the First Land Acquisition Collector, Calcutta, at No.5, Bankshall Street, Calcutta-700 001By Order of the GovernorWHEREAS the Governor is satisfied that land is needed for a public purpose being/not being a purpose of Union, namely for permanent accommodation of office-cum-residence of Dy. Commissioner of Police Security Control under Commissioner of Police Calcutta, Home (Police) Deptt. Govt. of N. Bengal, in Police Station Park Street, District Calcutta, Ward No.63 of Calcutta Municipal Corporation, it is hereby declared that a piece of land comprising premises No. Western portion of Premises No.4, Pretoria Street, Calcutta and measuring more or less 0.0988 hectare (0.2441 acre) and bounded on theEast by: Remaining portion of Premises No.4, Pretoria StreetSouth by: Premises No.5, Pretoria StreetWest by: Premises No.12 & 15, Lord Sinha Roadis needed for the aforesaid public purpose at the public expense partly at the public expenses and partly at the expense of within the aforesaid ward of the Calcutta Municipal Corporation in the City of CalcuttaThis Declaration is made under the provision of Section 6 of Act 1 of 1894/read with the said Notification, to all whom it may concernA plan of the land may be inspected in the Office of the First Land Acquisition Collector, Calcutta, at No.5, Bankshall Street, Calcutta-700 001By order of the Governor,Deputy Secretary to the Govt. of W.B5. In the said declaration, it is clearly incorporated that the said piece of land is needed for office-cum-residence of Dy. Commissioner of Police (Security Control) at the public expense6. The reasons for setting aside section 4 notification and declaration under section 6 of the Land Acquisition Act, were as follows:(I) The publication thereof, having not been preceded by handing over vacant possession of the land, by the Government to the respondents, in compliance with the order dated 18th August, 1993, passed by the learned Single Judge in Writ Petition No.3799 of 1992, had amounted to practicing fraud by the Government upon the statute;(II) The declaration under Section 6 was set aside on the ground that the statement incorporated in the said declaration that the said premises was being acquired partly at the public expense and partly at the expense of within the aforesaid ward as published in the newspaper indicated total non-application of mind by the concerned authorities7. In the year 1943, under the Defence of India Rules, the premises situated at 4, Pretoria Street, Calcutta was requisitioned by the Government of West Bengal. After requisition, the Government started using the ground floor of the two-storeyed building, standing thereon, as office of the Dy. Commissioner of Police (Security Control), and the first floor thereof, as residential accommodation of the said officer. Admittedly, the premises and the land appurtenant to the premises has been continuously in possession of the respondent-State Government since 1943 and from year 1943, the said premises is being used as the office of the Dy. Commissioner of Police (Security Control). In other words, for the last more than 63 years the office of Dy. Commissioner of Police (Security Control) has been continuously functioning from the said premises8. In this petition, we are primarily concerned with the validity of the issuance of notification under section 4 and declaration under section 6 of the Land Acquisition Act, 1894 in respect of the said premises9. In the impugned judgment and other judgments delivered from time to time, the other facts regarding requisition and acquisition have been incorporated. Therefore, briefly, we would indicate those facts in order to understand the controversy involved in the said case properly and comprehensively. We would like to clearly indicate that our directions would remain confined only to the validity of Section 4 and declaration made under Section 6 of the Act10. Brief facts necessary to understand and comprehend the controversy involved in the case are briefly stated as underAfter the acquisition of the said premises in the year 1943, both office and residence of the Dy. Commissioner of Police (Security Control) started functioning at the said premises. On 28th December, 1947, the Government of West Bengal de-requisitioned the said land, but detained possession thereof. Again, by order dated 30th January, 1959 issued under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947, the Government requisitioned the said land and continued to use the same for the same purpose11. The appellant purchased the said land on 27.9.1982 along with the existing building. The appellant filed a writ petition being W.P. No.872 of 1984 before the Calcutta High Court in the year 198412. The writ petition was allowed by the learned Single Judge vide judgment dated 17th September, 1985. The respondent-State preferred an appeal (FMA No.508 of 1985). The said appeal was disposed of by the judgment of the Division Bench dated 12th December, 1985. The requisition thereof was to remain valid for a period of six months from 12th December, 1985 and the requisition in regard to the garden was put to an end with the direction to hand over the possession to the appellant with liberty to acquire at the same time13. The appellant apprehending acquisition of the said land under the provisions of the West Bengal Land (Requisition and Acquisition) Act, 1948, on 25th April, 1986 moved the second Writ Petition (Civil Rule No. 5025(W) of 1986)14. The respondent-Government once again requisitioned the said land by making an order dated 31st May, 1986 under Section 3(1) of the West Bengal Act 2 of 1948. The respondent-Government of West Bengal continued to use the said requisitioned land for the same purpose as before. Thereafter, for acquiring the said land, the government published a notice dated 14th August, 1986 under Section 4(1a) of the West Bengal Act 2 of 1948 in the official gazette on 16th August, 198615. The appellant challenged the said order and notice under Sections 3(1) and 4(1a) of the West Bengal Act 2 of 1948 by filing a third Writ Petition (Civil Rule No. 8407(W) of 1987). The learned Single Judge disposed of the said Civil Rule 8407(W) of 1987. Both the said order under Section 3 (1) and Notice under Section 4(1a) were set aside16. The respondent-Government preferred an appeal (FMAT No. 2224 of 1987) and it was disposed of by the Division Bench on 7th September, 1990. The appeal was allowed and the judgment appealed from was set aside to the extent indicated hereinbelow. The relevant portion of the judgment is reproduced hereinbelow:-It however appears to us that if the vacant land to the extent of 15 feet at the back side of the covered portion of the building is acquired the purpose for which the building is intended to be acquired will be satisfied and the entirety of the vacant land and the back side of the said building is not necessary to be acquired. The order of acquisition of vacant land at the back of the building beyond 15 ft. of the vacant land at the back side of the building therefore stands annulled. It also appears to us that in the facts of this case that the State Government intended from the very beginning to acquire the premises for the said Security Control Department and for accommodating the in charge of the said department viz. The Deputy Commissioner of Police (Security Control). It was never intended by the State Government to requisition the premises temporarily for the sole purpose of requisition. It will not be correct to contend that the Government had intended initially to keep the premises in requisition but later on, it decided to acquire the said premises. Records of the Government Department also clearly demonstrate that the property was intended to be acquired for the said purpose and as the time for acquisition as specified by the Court of Appeal was running out and there was urgent necessity to maintain status quo as regards possession before acquisition proceeding is finalized under Act II of 1948, the order of requisition was made within six months only as a step in aid to pass consequential order of acquisition under Section 4(1a) of Act 1948. Looking to the relevant records of the case it does not appear to us that the order of requisition was not passed within a period of six months but such order was antedated17. Against the order of the Division Bench, special leave petition filed by the respondent-State was dismissed by this Court. Consequently, on 12th June, 1991 physical possession of the land beyond 15 ft. of the existing building was delivered back by the respondent-State to the appellant. A notice dated 14th September, 1992 under Section 5(3) of the West Bengal Act 2 of 1948 was issued by the First Land Acquisition Collector, Calcutta inviting the respondents to make their respective claims to compensation for the said land already acquired by the Government by publishing the said notice dated 14th August, 1986 under Section 4(1a) of the West Bengal Act 2 of 194818. It may be pertinent to mention that the appellant instead of making any claim for the grant of compensation, filed Writ Petition Nos.3798-3799 of 1992. In Writ Petition No.3798 of 1992, the notice dated 14th September, 1992 under Section 5(3) of the West Bengal Act 2 of 1948 and in FMAT No.2224 of 1987 was set aside on the ground that despite the judgment of the Division Bench in FMAT No.2224 of 1987, the said notice had been issued19. By the order passed in Writ Petition No.3799 of 1992, the requisition order dated 30th January, 1959 was set aside together with the direction to the State Government to deliver the vacant possession of the land and the building to the appellant within six months. By a subsequent order dated 8th July, 1994 passed in Writ Petition No.3798 of 1992, the learned Single Judge was pleased to modify his order dated 18th August, 1993 to the effect that the said order would not prevent the Government from issuing fresh notice in terms of the orders of the Court, for acquisition of the land within the period of six months after they wanted to acquire the land20. In this background, the respondent-State Government published the notification dated 13th December, 1994 in the official gazette on 21st December, 1994 under Section 4 of the Land Acquisition Act of 1894. In the notification, the same public purpose was indicated that the premises were required for the office of Deputy Commissioner of Police (Security Control) which had been in possession of respondent State of West Bengal since 1943. The land (the purpose for which it was being used from the year 1943) and the land (the covered area 15 ft. as upheld by the Division Bench in FMAT No.2224 of 1987) at the same premises was needed by the State Government at the public expense21. The appellant had filed his objections under Section 5A of the Act. The objections of the appellant were heard by the competent authority and thereafter, declaration under Section 6 of the Act was issued by the competent authority on 23rd June, 1995. It was published in the newspaper on 6 and 7th July, 1995 and in the official gazette on 7th August, 1995. According to the appellant, the notification under Section 4 of the Land Acquisition Act could not have been validly issued in respect of the land, possession whereof had been retained illegally by the State Government. It was further incorporated that the Government had earlier been continuing possession of the land only in terms of the requisition order dated 31st May, 1986. The said order of requisition having been quashed by the Courts order dated 18th August, 1993, the Governments possession of land sought to be acquired became illegal and unauthorized. It was asserted by the appellant that having abandoned the earlier proceedings initiated under the West Bengal Act 2 of 1948, as was evident from the fact of publication of the impugned Notification under Section 4 read with Section 4 of the Act No.1 of 1894, the State Government had lost the right to retain the possession of the land. The possession would have been taken only in terms of the provisions of Section 16 of the Act 1 of 1894. It was further asserted by the appellant that the very fact of Government publishing the Notification under Section 4, while illegally retaining possession of the land was sufficient to hold that the power was exercised mala fide. The learned Single Judge came to the conclusion that possession of the land could be taken by the Government only after passing of an award under the provisions of the Act 1 of 189422. In the instant case, no award has been passed, the possession of the land had always remained with the Government. The possession of the land had not been handed over to the respondent in spite of Courts order dated 18th August, 1993 passed by the learned Single Judge. According to the appellant, non-delivery of possession of the land had vitiated the Notification under Section 4 of the Land Acquisition Act so as to make it a nullity. The Government was granted liberty to acquire the land in accordance with law but that liberty was subject to handing over the derequisitioned land to the respondent.

Reasoning:
29. The Division Bench carefully examined the pleadings, documents and the judgments cited at the Bar. The Court came to a categorical finding that for the purpose of examining the validity of a Notification under Section 4 of the Land Acquisition Act, the question of possession of land is absolutely irrelevant; the examination should remain confined only to the question of existence of public purpose. The Division Bench drew support for the aforesaid view from the case of Nirodhi Prakash Gangoli. The Division Bench also observed that neither the appellant had seriously contended that behind the proposed acquisition, the public purpose was absolutely absent; nor did the learned Single Judge arrived at the conclusion that the proposed acquisition was not for a notified public purpose32. The High Court was correct and justified in holding that while examining the validity of notification under Section 4 of the Land Acquisition Act, the question of possession of land was absolutely irrelevant33. The Division Bench held that the order dated 18th August, 1993 was per incurium. The Court also observed that the learned Single Judge was wrong in holding that the publication of the said Notification under Section 4 was an act done in violation of the said order dated 18th August, 1993. According to the Division Bench, the learned Single Judge proceeded on a completely wrong premise that the land in question had been kept in possession by the Government, even after formally derequisitioning the same; for, as a matter of fact, the piece sought to be acquired, had never been derequisitioned after 30th January, 1959; it had rather stood absolutely vested in the Government. The Division Bench clearly came to the conclusion that the State Governments possession of the land never became illegal or unauthorized by the operation of law34. The Division Bench specifically observed that the declaration published on 7th August, 1995 in the official gazette has been produced before them. The Division Bench observed that they were satisfied that the words partly at the public expense and partly at the expense of within the aforesaid ward published in the newspaper did not correctly reproduce the declaration issued under section 6 of the Act. The official gazette had correctly incorporated that the land was acquired at the public expense only. Therefore, the Division Bench did not find any infirmity in Section 4 notification and in the declaration dated 23rd June, 1995 made under Section 6 of the Land Acquisition Act, 189437. The Division Bench allowed the appeal and set aside the impugned judgment of the learned Single Judge dated 2nd December, 1996. The Division Bench has observed that the appellant would be entitled to recover rent, compensation of rent to which he was entitled in law in appropriate proceedings. The appellant has failed to point out any infirmity as far as Notification under Section 4 and consequent declaration under Section 6 of the Act. Section 4 of the Notification is usually assailed on the ground of public purpose. Therefore, we deem68. Ambiguity, indefiniteness and vagueness of public purpose are usually the grounds on which notifications under Section 4(1) of the Land Acquisition Act are assailed70. The power of compulsory acquisition as described by the term eminent domain can be exercised only in the interest and for the welfare of the people. The concept of public purpose should include the matters, such as, safety, security, health, welfare and prosperity of the community or public at large71. The concept of eminent domain is an essential attribute of every State. This concept is based on the fundamental principle that the interest and claim of the whole community is always superior to the interest of an individual72. Public purpose for which the premises was required in the instant case was not questioned seriously. As a matter of fact, the Stateof West Bengal has been using the premises in question for more than six decades for the safety and security of the people by having an office of the Deputy Commissioner of Police (Security Control). Therefore, by no stretch of imagination, it can be said that the premises was not required by the State Government for the interest and welfare of the people or there was no public purpose involved in acquiring the premises in question.