State Of West Bengal & Ors vs Prafulla Churan Law & Ors

State of West Bengal and others .......Appellants

Versus

Prafulla Churan Law and others ......Respondents

WITH

CIVIL APPEAL NO. 1183 OF 2003

J U D G M E N T

The appellants are aggrieved by the order of the Calcutta High Court,

which annulled the invoking of Section 17 of the Land Acquisition Act,

1894 (for short, "the Act") by the State Government for the acquisition of

premises No. 14 and 12/1, Hare Street, Calcutta.

There is no dispute between the parties that possession of the

premises in question was taken by the Government before independence in

March, 1944 by invoking the provisions of the Defence of India Act. After

15 years, the State Government issued order dated 30.9.1959 under Section

3(1) of the West Bengal Premises Requisition and Control (Temporary

2

Provisions) Act, 1947 (for short, "the 1947 Act") for requisition of the

premises.

After 31 years, the respondents filed Writ Petition No.3601 of

1990 questioning the continued possession of the premises by the appellants.

The learned Single Judge of the High Court allowed the writ petition and

issued a mandamus for restoration of the premises to the respondents.

Notification dated 27.8.1990, issued by the State Government under Section

4(1) of the Act for acquisition of the premises, was quashed by the High

Court in Writ Petition No. 1382 of 1991. Thereafter, the respondents filed

Writ Petition No. 3790 of 1993 and reiterated their prayer for restoration of

possession. The learned Single Judge allowed the writ petition and directed

that the possession of the premises be delivered to the writ petitioners within

four months. At the same time, he made it clear that during this period the

concerned authorities may acquire the property in accordance with law and

observed that if the property is acquired within that period, the question of

handing over the possession will not arise. The respondents challenged the

latter part of the order of the learned Single Judge in Appeal No. 35 of 1994,

which was disposed of by the Division Bench vide order dated 18.4.1994,

the relevant portions of which are extracted below:

"We are conscious of the contentions raised by the appellants in

this regard, but we think that we cannot prevent the State

authorities to acquire the premises in question in accordance

3

with the law after ad-hearing to the proper formulates as

delineated in the statute. Some steps have already been taken in

this regard in the meantime. Till such time the acquisition

proceedings are complete, the respondents cannot however take

advantage of the situation and continue at the old rate of

compensation which was fixed amount 40 to 50 years before.

In one case the requisition was made in 1944 and in other case

it was in 1956.

We would, accordingly, direct the respondent authorities to pay

by way of ad-interim measure a monthly compensation at the

rate of Rs.10/- per sq.ft. confirming to the market rate for their

occupation with a further direction upon the State respondents

to complete the acquisition proceeding within a period of six

months from this date. If this proceeding are not complete by

that date, the mandate as passed by the learned trial Judge

should definitely be operative and the writ petitioners, the

present appellants, would be entitled to get back the possession

of the disputed premises in accordance with law."

Special Leave Petition (C) No. 4899 of 1996 filed by the

respondents was dismissed by this Court on 28.2.1996 with liberty to them

to claim damages for the occupation of the premises for the period between

the date on which the term of requisition came to an end and the date on

which the acquisition proceedings were initiated.

In the meanwhile, the State Government issued notification

dated 19.7.1994 under Section 4(1) read with Section 17(4) of the Act for

acquisition of the premises in question for the purpose of providing

permanent accommodation to the unit of Cottage and Small Scale Industries,

Bangasree and also for West Bengal Ceramic Development Corporation.

4 This was followed by notification under Section 6, which was published on

18.7.1995.

The respondents challenged the aforementioned notifications in

Writ Petition No. 870 of 1996 on several grounds including the one that

there was no valid ground for invoking Section 17(4) of the Act, which

resulted in depriving them of the right to file objection under Section 5-A. It

was pleaded that the purpose of acquisition was not such which could justify

dispensing with the inquiry envisaged under Section 5-A.

The learned Single Judge dismissed the writ petition by

observing that the decision of the State Government to invoke Section 17(4)

was legally correct and justified and the power of judicial review cannot be

exercised to interfere with the subjective satisfaction on the issue of urgency.

The Division Bench allowed the appeal filed by the respondents and quashed

the acquisition by recording the following observations:

"The virtue of a public enquiry case not be overstressed. It is

the very heart and soul of the rule of law. It stops high

handed action. It stops mere repetition or words found in

Act, when such repetition lacks substance, in the facts and

circumstances of a particular case. This is the reason why

such a hearing is usually compartmentalized as an important

compartment of the rules of natural justice. Had there been a

public enquiry, in a usual manner, the parties would know,

what is the reason for their losing their right to their property;

in that event, the court would also be in the know of far more

facts. When approving or disapproving of acquisition

5

proceedings, the details and the facts are necessary and

important, not only for the parties, but also for the court.

Here we know nothing. Everything has been short - circuited

by preliminary notifications doing away with public enquiry

without ever even trying to put it afoot. The Government

proceeded with a closed mind, in an authoritarian way,

paying attention only to words being repeated in the

Notifications, exactly as those appear in the L.A. Act.

We are thus of the opinion that both the notifications in

regard to both the premises issued in a combined way under

section 4 and 17(4) were the products of a closed mind,

which was already made up, that the premises being in the

possession of the government undertakings, would be kept by

such government undertakings, and a compensation would be

awarded to the public parties. The whole proceedings show

such a closed mind. The appellants had lost their property as

soon as the combined notice under section 4 and 17(4) had

been published.

In our opinion, this manner of proceeding to acquire land

vitiates the entire acquisition proceedings. Dispensing with

hearing of objections, when there was no real urgency, is a

fatal infirmity."

Shri Avijit Bhattacharjee, learned counsel for the appellants

submitted that the premises were needed for a public purpose i.e., providing

permanent accommodation to the unit of Cottage and Small Scale Industries,

Bangasree and also for West Bengal Ceramic Development Corporation and,

as such, no exception could be taken to the procedure adopted by the

appellants. Learned counsel emphasized that Section 17(4) was invoked

because in terms of order dated 18.4.1994 passed by the Division Bench of

the High Court, the State Government was obliged to complete the

6

acquisition proceedings within six months and this could not have been

possible if objections were invited and opportunity of hearing was given to

the respondents as per requirement of Section 5-A. In support of his

argument, Shri Bhattacharjee relied upon the judgment of this Court in

Chameli Singh and others v. State of U.P. and another (1996) 2 SCC

549.

Shri Shyam Divan, learned senior counsel appearing for the

respondents supported the impugned order and argued that the Division

Bench of the High Court did not commit any error by quashing the

acquisition. He relied upon the recent judgment in Anand Singh and

another v. State of Uttar Pradesh and others (2010) 11 SCC 242, and

submitted that the High Court has rightly nullified the acquisition

proceedings on the ground that there was no such urgency which could

justify short circuiting the rule of hearing enshrined in Section 5-A of the

Act.

We have considered the respective submissions and carefully perused

the record. The applicability of Section 17 of the Act has been considered

in several cases, but it is not necessary to burden the judgment with large

number of precedents and it will be sufficient to notice the two judgments

which have direct bearing on the issue arising in these appeals. In Narayan

Govind Gavate v. State of Maharashtra (1977) 1 SCC 133, a three-Judge

7

Bench of this Court considered various facets of the issue relating to

invoking of urgency clause for the acquisition of land for development and

utilization as a residential-cum-industrial area. The Bombay High Court had

allowed the writ petitions filed by the land owners and quashed the invoking

of Section 17(4) of the Act. This Court first considered the question of

burden of proof in matters in which inquiry under Section 5A is dispensed

with, referred to Phipson on Evidence (11th Edition), the judgment in

Woolmington v. Director of Public Prosecutions 1935 AC 462, noticed

the provisions of Sections 101, 102, 103, 106 and 114 of the Evidence Act

and held:

"Our conclusion therefore is that where certain conditions

precedent have to be satisfied before a subordinate authority

can pass an order, (be it executive or of the character of

subordinate legislation), it is not necessary that the satisfaction

of those conditions must be recited in the order itself, unless the

statute requires it, though, as we have already remarked, it is

most desirable that it should be so, for in that case the

presumption that the conditions were satisfied would

immediately arise and burden would be thrown on the person

challenging the fact of satisfaction to show that what is recited

is not correct. But even where the recital is not there on the face

of the order, the order will not become illegal ab initio and only

a further burden is thrown on the authority passing the order to

satisfy the court by other means that the conditions precedent

were complied with. In the present case this has been done by

the filing of an affidavit before us.

It is also clear that, even a technically correct recital in an order

or notification stating that the conditions precedent to the

exercise of a power have been fulfilled may not debar the court

in a given case from considering the question whether, in fact,

those conditions have been fulfilled. And, a fortiori, the court

8

may consider and decide whether the authority concerned has

applied its mind to really relevant facts of a case with a view to

determining that a condition precedent to the exercise of a

power has been fulfilled. If it appears, upon an examination of

the totality of facts in the case, that the power conferred has

been exercised for an extraneous or irrelevant purpose or that

the mind has not been applied at all to the real object or purpose

of a power, so that the result is that the exercise of power could

only serve some other or collateral object, the court will

interfere."

(emphasis supplied)

The Court then considered whether there was any justification for

invoking the urgency clause for acquisition of land for residential and

industrial purposes and observed:

"In the case before us, the public purpose indicated is the

development of an area for industrial and residential purposes.

This, in itself, on the face of it, does not call for any such

action, barring exceptional circumstances, as to make

immediate possession, without holding even a summary

enquiry under Section 5-A of the Act, imperative. On the other

hand, such schemes generally take sufficient period of time to

enable at least summary inquiries under Section 5-A of the Act

to be completed without any impediment whatsoever to the

execution of the scheme. Therefore, the very statement of the

public purpose for which the land was to be acquired indicated

the absence of such urgency, on the apparent facts of the case,

as to require the elimination of an enquiry under Section 5-A of

the Act.

All schemes relating to development of industrial and

residential areas must be urgent in the context of the country's

need for increased production and more residential

accommodation. Yet, the very nature of such schemes of

development does not appear to demand such emergent action

as to eliminate summary enquiries under Section 5-A of the

Act. There is no indication whatsoever in the affidavit filed on

behalf of the State that the mind of the Commissioner was

9

applied at all to the question whether it was a case necessitating

the elimination of the enquiry under Section 5-A of the Act.

The recitals in the notifications, on the other hand, indicate that

elimination of the enquiry under Section 5-A of the Act was

treated as an automatic consequence of the opinion formed on

other matters. The recital does not say at all that any opinion

was formed on the need to dispense with the enquiry under

Section 5-A of the Act. It is certainly a ease in which the recital

was at least defective. The burden, therefore, rested upon the

State to remove the defect, if possible, by evidence to show that

some exceptional circumstances which necessitated the

elimination of an enquiry under Section 5-A of the Act and that

the mind of the Commissioner was applied to this essential

question. It seems to us that the High Court correctly applied

the provisions of Section 106 of the Evidence Act to place the

burden upon the State to prove those special circumstances,

although it also appears to us that the High Court was not quite

correct in stating its view in such a manner as to make it appear

that some part of the initial burden of the petitioners under

Sections 101 and 102 of the Evidence Act had been displaced

by the failure of the State to discharge its duty under Section

106 of the Act. The correct way of putting it would have been

to say that the failure of the State to produce the evidence of

facts especially within the knowledge of its officials, which

rested upon it under Section 106 of the Evidence Act, taken

together with the attendant facts and circumstances, including

the contents of recitals, had enabled the petitioners to discharge

their burden under Sections 101 and 102 of the Evidence Act."

(emphasis supplied)

In Anand Singh's case (supra), the two-Judge Bench

considered the question whether the State Government was justified in

invoking Section 17(4) for acquisition of land for residential colony to be

constructed by Gorakhpur Development Authority, Gorakhpur. The Court

noted that notifications under Section 4(1) read with Section 17(1) and (4)

were issued on November 23, 2003 and February 20, 2004 and declaration

10

under Section 6 was issued on December 24, 2004, referred to 16 judicial

precedents including those noticed hereinabove and held:

"The exceptional and extraordinary power of doing away with

an enquiry under Section 5-A in a case where possession of the

land is required urgently or in an unforeseen emergency is

provided in Section 17 of the Act. Such power is not a routine

power and save circumstances warranting immediate

possession it should not be lightly invoked. The guideline is

inbuilt in Section 17 itself for exercise of the exceptional power

in dispensing with enquiry under Section 5-A. Exceptional the

power, the more circumspect the Government must be in its

exercise. The Government obviously, therefore, has to apply its

mind before it dispenses with enquiry under Section 5-A on the

aspect whether the urgency is of such a nature that justifies

elimination of summary enquiry under Section 5-A.

A repetition of the statutory phrase in the notification that the

State Government is satisfied that the land specified in the

notification is urgently needed and the provision contained in

Section 5-A shall not apply, though may initially raise a

presumption in favour of the Government that prerequisite

conditions for exercise of such power have been satisfied, but

such presumption may be displaced by the circumstances

themselves having no reasonable nexus with the purpose for

which the power has been exercised. Upon challenge being

made to the use of power under Section 17, the Government

must produce appropriate material before the Court that the

opinion for dispensing with the enquiry under Section 5-A has

been formed by the Government after due application of mind

on the material placed before it.

It is true that power conferred upon the Government under

Section 17 is administrative and its opinion is entitled to due

weight, but in a case where the opinion is formed regarding the

urgency based on considerations not germane to the purpose,

the judicial review of such administrative decision may become

necessary.

As to in what circumstances the power of emergency can be

invoked are specified in Section 17(2) but circumstances

11

necessitating invocation of urgency under Section 17(1) are not

stated in the provision itself. Generally speaking, the

development of an area (for residential purposes) or a planned

development of city, takes many years if not decades and,

therefore, there is no reason why summary enquiry as

contemplated under Section 5-A may not be held and objections

of landowners/persons interested may not be considered. In

many cases, on general assumption likely delay in completion

of enquiry under Section 5-A is set up as a reason for

invocation of extraordinary power in dispensing with the

enquiry little realising that an important and valuable right of

the person interested in the land is being taken away and with

some effort enquiry could always be completed expeditiously.

The special provision has been made in Section 17 to eliminate

enquiry under Section 5-A in deserving and cases of real

urgency. The Government has to apply its mind on the aspect

that urgency is of such nature that necessitates dispensation of

enquiry under Section 5-A. We have already noticed a few

decisions of this Court. There is a conflict of view in the two

decisions of this Court viz. Narayan Govind Gavate and Pista

Devi. In Om Prakash this Court held that the decision in Pista

Devi must be confined to the fact situation in those days when

it was rendered and the two-Judge Bench could not have laid

down a proposition contrary to the decision in Narayan Govind

Gavate. We agree.

As regards the issue whether pre-notification and post-

notification delay would render the invocation of urgency

power void, again the case law is not consistent. The view of

this Court has differed on this aspect due to different fact

situation prevailing in those cases. In our opinion such delay

will have material bearing on the question of invocation of

urgency power, particularly in a situation where no material has

been placed by the appropriate Government before the Court

justifying that urgency was of such nature that necessitated

elimination of enquiry under Section 5-A."

(emphasis supplied)

12

We may now revert to the case in hand. A brief recapitulation of the

facts shows that possession of the premises in question was taken in 1944

under the Defence of India Act. After 46 years, an attempt was made by the

appellants to acquire the premises but could not achieve their object because

notification dated 27.8.1990 issued under Section 4(1) was quashed by the

High Court. Thereafter, no action was taken for acquisition of the premises

till after the disposal of Appeal No.35 of 1994. The appellants have not

explained as to why appropriate steps could not be taken for acquisition of

the premises by complying with the requirement of Section 5-A of the Act.

The time gap of 3 years between the quashing of first notification and issue

of the second notification was too long to justify invoking of urgency clause

which resulted in depriving the respondents of their right to raise objection

against acquisition of the premises. If the appellants felt that six month's

time was not sufficient for completing the acquisition proceedings, they

could have filed an application in Appeal No.34 of 1994 for extension of the

time. However, the fact of the matter is that no such effort was made by

them and the urgency clause was invoked on the pretext of completion of the

acquisition in terms of the direction given by the High Court in Appeal

No.35 of 1994. In our view, this was clearly impermissible and the

respondents could not be deprived of their legitimate right to raise objection

and to be heard against the proposed acquisition of the premises.

13 As a sequel to the above discussion, we hold that the Division Bench

of the High Court did not commit any error by quashing the Notifications

issued under Section 4(1) read with Section 17 and Section 6 of the Act.

In the result, the appeals are dismissed. The parties are left to bear

their own costs.

.............................J.

[G.S. Singhvi]

.............................J.

[Asok Kumar Ganguly]

New Delhi;

February 4, 2011

14