Jadabendra Nath Jana and Others vs State of West Bengal and Others

Girish Chandra Gupta, J.—This appeal is directed against an order dated 12.3.1996 passed by the learned Single Judge dismissing an application by which Land Acquisition proceedings were challenged. Aggrieved by the order the owners have preferred this appeal. The facts of the case are as follows:

The writ petitioners are the owners of the subject piece of land, the Patashpore Thana Co-operative Rice Mill Society Ltd. (hereinafter referred to as the Company) unlawfully encroached the land belonging to the writ petitioners. The writ petitioners and / or their predecessor-in-interest, for recovery or land from the company, filed a suit being Title Suit No. 165 of 1980. The suit was decreed and execution levied. The Company preferred an appeal before this Court which was registered as F. A. No. 305 of 1987. A conditional stay was granted on 27.8.1987 by a Division Bench of this Court directing the Company to deposit the costs which does not even appear to have been deposited by the Company. Therefore, the stay of the operation of the decree is no longer there but the appeal is pending.

The Assistant Secretary to the Government of West Bengal by a letter dated 20.8.1980 proposed to the Land Acquisition Collector, Midnanore for acquisition of the said piece of land for the benefit of the said Company and directed the latter to initiate acquisition proceedings under Part-VII of the Land Acquisition Act for the company and to submit draft notification u/s 4 of the Land Acquisition Act together with preliminary inspection report under Rule 4 of the Land Acquisition Company Rules, 1963 for necessary action. A notification u/s 4 of the Land Acquisition Act was issued on 13.3.1987. By the said notification applicability of Section 5A of the said Act was dispensed with in exercise of power reserved under sub-Section (43 of Section 17 thereof, It appears that declaration u/s ''6 of the Land Acquisition Act was made on 3.8.1987. The writ petitioners challenged the aforesaid acquisition proceedings inter alia on the ground that there has been noncompliance with the provisions of Rule 4 of the Land Acquisition Companies Rules, 1963; no agreement as required u/s 39 of the Land Acquisition Act has been entered into. Since, there was noncompliance of Rule 4 of the Land Acquisition Companies Rules the Writ petitioner were not given any opportunity or hearing. These grounds were however taken in affidavit-in-reply:

The learned Trial Judge in dismissing the writ petition did not advert to the aforesaid grounds at all. It is now well settled that a plea taken in the rejoinder is competent and the Court has to take notice thereof. If any authority is needed we can quote the law laid down by the Apex Court in the case of Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, , Paragraph 17 :

"That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea; in question had not been raised by the appellant in his writ petition. The reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea, has been expressly taken. This is not disputed by Mr. Chetty and so when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court."

The learned Counsel appearing for the respondents did hot dispute the fact that no enquiry as required under Rule 4 was held. No agreement required u/s 39 of the said Act has been produced before us. In a case like this we are constrained to hold that the acquisition proceedings are vitiated. We are supported; in our- view, by judgments of the Supreme Court, which we shall presently notice.

In the case of State of Gujarat and Another Vs. Patel Chaturbhai Narsibhai and Others, Their Lordships held that the enquiry under Rule 4 is mandatory and that a hearing in such enquiry to the land owner is required to be given. Their Lordships held in Paragraph 15 of the aforesaid judgment as follows:

"The contention of the State that the enquiry under Rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The Company at such an enquiry has to show that the Company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the Company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made u/s 5A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it does so direct a declaration may be made u/s 6 at any time after the publication of the notification u/s 4 of the Act. Therefore, the enquiry u/s 5-A may not be held".

Their Lordships further held that an agreement as required u/s 39 of the said Act is also requisite before any action is taken for the purpose of acquisition of land. Their Lordships held as follows:

"The provisions contained in Sections 38 to 41 of the Act indicate that the provisions of Sections 4 to 37 of the Act cannot be to acquire land for any Company unless the State Government gives previous consent thereto and the Company executes an agreement with the State as mentioned to Section 41 of the Act."

In the case of The General Government Servants Cooperative Housing Society Ltd., Agra and Others Vs. Sh. Wahab Uddin and Others, it was held as follows:

The inquiry report submitted by the Collector does not show that he applied his mind to the provisions of Rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under Rule 4. The report that was submitted was one u/s 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion, there has been failure of Justice. Agreeing with the finding of the High Court, although for different reasons, we held" that the notification u/s 6 is invalid for non-compliance of Rule 4 of the Rules".

For the reasons aforesaid, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. There has been no enquiry under Rule 4. The owners of the land are entitled to opportunity of being heard in an enquiry u/s 40 of the Act. No such opportunity was given to the writ petitioners. Accordingly, the acquisition proceedings are quashed. The order passed by the learned Single Judge is set aside.

The appeal is therefore allowed with costs assessed at Rs. 10,000/-.

Ashok Kumar Mathur, C.J.

I agree.