ANITENDSA NATH MITTER Vs. STATE OF WEST BENGAL
LAWS(CAL)-1960-12-2
HIGH COURT OF CALCUTTA
Decided on December 07,1960

ANITENDSA NATH MITTER Appellant
VERSUS
STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) THE petitioner in this case is the absolute owner, having Ryioty Mokorari Tenancy in C. S. Plots Nos. 1550, 1552-1558, 1560-1564, 1620, 1621 and portions of C. S. Plots Nos. 1559 and 1569. of Mouza Napara, Police Station. Barasat, in the District of 24 Parganas. On the 24th of August, 1947 a notification was published under section 4 of the West Bengal Land Development and Planning Act, 1948, dated 18th August, 1949, for the compulsory acquisition, inter-alia, of the petitioner's land. The introductory statement in the said notification ran as follows:- "whereas it appears to the Governor that land is likely to be needed for public purposes, viz. , for the settlement of immigrants who have migrated into province of West Bengal on account of circumstances beyond their control and for the establishment of a model colony for creation of better living conditions in the village of napara"
(2.) ON the 12th April, 1951, a declaration under section 6 of the said Act dated 12th April, 1951, was published. In the notification under section 4, a total area of 28. 87 acres were proposed to be acquired but the declaration was made in respect of an area of 18. 83 acres. In the declaration under section 6 also it was mentioned that the land was needed for a public purpose, viz, for the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control and for the establishment of a model colony for creation of batter living condition in the village of Napara. On the 28th October, 1951 possession was obtained by the Land Acquisition Collector, Alipore, under section 8 of the said Act and thereupon the property vested absolutely in the State. Thereafter, the land was made over to the respondent no. 2, the Pioneer Co-operative Rehabilitation and Housing Society Ltd. , who are proceeding with the work of rehabilitating displaced persons. The purposes mentioned in the said notification and declaration, viz. , the settlement of immigrants who migrated into the State of West Bengal on account of circumstances beyond their control as well as the establishment of a model colony for creation of better living condition are all public purposes as defined in sub-section (d) of section 2 of the said Act under Art. 31 of the Constitution as it was originally framed, and which deals with compulsory acquisition of property by the State, the compensation payable was just compensation, that is to say, the market price which prevailed at the time of acquisition. On or about 27th April, 1955, Art, 31 was amended by the Fourth Constitution (Amendment) Act of 1955 which provided that no property shall be compulsorily acquired or requisitioned save for public purposes and save by authority of law, and that no such law shell be called into question in any Court on the ground that the compensation provided by that law is not adequate. In order to take advantage of this amendment in the Constitution the West Bengal Land Development and Planning Act, 1948 was amended by making material changes in section 8, by the West Bengal Land Development and "planning (Amendment) Act, 1955 (West Bengal Act XXII of 1955 ). By this amendment, alterations were made in proviso (b) to subsection (I) of section 8, dealing with the principle for determining compensation. By this amendment, it was provided that if the market value of the land on the date of the publication of the notification under sub-section (1) of section 4 exceeded the market value of the land on the 31st December, 1948, then such excess shall not be taken into consideration. In this particular case it is admitted in the affidavit in opposition that the market value in 1949, which was the data of the notification under section 4 of the said Act, was higher than the market value on the 31st December, 1946. In order to avail of this lower compensation, two notifications or "errata dated 12th August, 1957 were published in the Calcutta Gazette, Extraordinary, dated 13th August 1957. By the Notification No. 14888 L. Dev. it was notified that in the notification under section 4, dated 18th August, 1957 the following alterations were to be made: "omit use words "and for the establishment of a model colony for creation of better living conditions" occurring after the words "for settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control. "
(3.) THE Notification No. 14890 L. Dev. purported to amend the declaration under section 6 dated 27th March, 1951 to the same effect. The admitted object in publishing these errata is to pay a lower rate of compensation. The petitioner has now made an application challenging the right of the State Government to alter the object of acquisition with retrospective effect, after possession has been taken and made over to the respondent No. 2. In my opinion, the application must succeed. The object with which a property can be compulsorily acquired from a citizen must be a "public purpose". What constitutes a "public purpose" has been defined in the Land Development and Planning Act. In conformity with the said Act, the objects were declared. A person concerned with such compulsory acquisition could only make objections upon the footing that the property was acquired for a "public purpose" which was stated. After the property has been acquired and possession having been taken whereby the land vested in the State Government, it is no longer possible for the State Government to alter the original object of acquisition. In other words, having professedly acquired the property for a stated "public purpose", the State Government cannot be heard to say at the time of paying compensation that the object was going to be altered so as to entitle Government to deprive a citizen of his just compensation. If it was a case of an accidental mistake or inadvertence that would have been one thing, because such errors can always be corrected. Here, however, it is openly declared that the amendment is made with the express object of depriving a citizen of his just compensation. It is not a case of a mistake in stating the original purpose, but a retrospective change in the "public purpose" after the property has been acquired and after the title to the property has passed to the State Government, upon the representation that the property was being acquired for certain purposes mentioned in the notification under section 4 and declaration under section 6. It is stated in the affidavit in opposition that in the agreement made with the society only one object was mentioned, namely, the settlement of immigrants. In my opinion, that has nothing to do with the person whose land has been acquired for s specified "public purpose". After acquisition, the State Government may change one public purpose into another and as long as it remains a public purpose the acquisition would probably remain valid, although I do not finally decide that question here. But having acquired the property for a stated public purpose, it cannot, be heard to say that the original object. was different. That would either be untrue or an unauthorised and unwarranted alteration, which has no effect, so far as the owner of the land is concerned whose property has been compulsorily acquired. In this case it is openly admitted that this kind of amendment has been made in order to deprive the owner of the higher compensation to which he was entitled in law. In my opinion, this amendment is not bonafide and I very much regret that the State Government should be a party to such a transaction. It is not fit that the constituted Government of the country should take recourse to round-about methods of depriving the citizen of his just compensation, when the land has been acquired compulsorily. I may put the matter in another way. The land was acquired for declared public purposes which were three in number viz. , the settlement of immigrants, the establishment of a model colony and creation of better living condition. This was mentioned in the notification under section 4 and repeated in the declaration under section. These notifications were duly authenticated and I must presume that the Governor had these objects in view when issuing the notification and the declaration. Years afterwards it is stated that these were not the objects and it is avowedly done in order to deprive a citizen of his just compensation. As I said either the statement that the object of acquisition was different is untrue or else it is a change in the object which coming years after the acquisition had been completed is unwarranted in law. I do not see how any reliance can be placed on the affidavit of Sri N. K. Chakrabarty who states that he was a Special Land Acquisition Collector and who affirms the affidavit and particularly paragraph 12 as "true according to the information derived from the office record" without disclosing what records he wishes to refer to. The notification and declaration were authenticated by Mr. S. Banerjee the then Member of the Board of Revenue and Secretary to the Government of West Bengal. There is no affidavit by him stating that there was any mistake in the notification or declaration so far as the purposes of acquisition were concerned. In paragraph 13 (a) of the said affidavit, Sri Chakraborty has stated that "the purposes of acquisition came subsequently to be the exclusive purposes of settling immigrants who have migrated into the State of Wept Bengal under circumstances beyond their control". It is, therefore admitted that it is not the original object which was defective but the object came to be changed after about 9 years from the acquisition, just because the Government wished to escape payment of just compensation to the owner. Such an attitude on behalf of the Government must be condemned. In my opinion this is not permitted in law and has no legal effect.;


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