Manash Nath Roy, J. - (1.) This appeal is directed against the judgment and order dated 5th July, 1968, made by A. K. Sinha, J. in Civil Pule No. 468 (W) of 1964. Along with this appeal, F.M.A. No. 424 of 1969, made by the same learned Judge on the same day in Civil Rule No. 224 (W) of 1944 was heard as the concerned Rules were heard together and the appeals, according to the learned Advocates for the respective parties, involve the same question of law". Mr. Arun Prokash Sirkar appeared for the Respondent Nos. 6 and 7 in the other appeal, and the appearances on behalf of the parties other than those as mentioned above, were the same.
(2.) The predecessors of the Respondent Nos. 1(a) to 5, were the owners of C. S. Plot Nos. 354 and 355 (hereinafter referred to as the said lands), situate within the Asansol Municipality (hereinafter referred to as the said Municipality). The original petitioners obtained the concerned Rules claiming that one Shri S. S. Atwal, who was impleaded as Respondent No. 4, was a member of the Parliament and was very influential person in and around the said Municipality. The said Shri Atwal is dead and it would also appear that the service of notices of these appeals were dispensed with on him in terms of the order dated 23rd June, 1968. In these appeals the said Shri Atwal was impleaded as Respondent No. 8. It was also alleged that the said Shri Atwal has his residential house at Young Road, which is just opposite the said lands and he, while alive wanted the petitioners in the Rules to sell the said lands to him and that apart, one Shri G. S. Atwal, a brother of the deceased Respondent No. 8 (S. S. Atwal), tried to occupy forcibly, one of the plots as involved in this case, and on such, a complaint under section 145 of the Criminal Procedure Code was filed, being Misc. Case No. 2 of 1948, wherein the petitioners in the Rules were held and found to be persons entitled and authorised to retain possession of the lands in question and thus to retain possession of them.
(3.) It has been alleged that having failed in their attempts to secure the said lands from the petitioners, the said Shri S. S. Atwal, while alive, pursuaded the Administrator (Respondent No. 2.) of the said Municipality, to acquire the said lands for his benefit and at his own expense under the pretence of a land acquisition proceedings, on the pretext of creating or constructing a Park. It has been stated that in fact the said S. S. Atwal, while alive, had paid Rs. 39,000/- to the said Municipality, on account of compensation, if any, to be paid for such acquisition. There is no dispute and in fact it cannot be doubted that the said lands are outside the jurisdiction of the said Municipality or at least at the outskirt of the Asansol town and the concerned Budha village, where the Park in question was proposed to be constructed, is inhabited mainly by farmers. The petitioners have stated and to which we cannot agree that these inhabitants of the concerned village do not require or have any necessity for a Park. It was also the case of the petitioners that apart from the said lands, vast tracts of land, which are thinly populated, are lying vacant. In fact, this was also one of the justifications of the petitioners that there was no need for a Park.;