Bimal Chandra Basak, J. -
(1.)In this application under Article 226 of the Constitution of India, the petitioners are challenging an order of requisition of land under Section 3 (1) of West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as the said Act) passed by the respondent No. 1. The petitioners' case as made out in the petition is as follows : The petitioners are inhabitants of the village named Anur situated in the district of Hooghly on the border line of the district of Bankura. The said village was a non-irrigated area and there was a lot of difficulties in cultivation of paddy. On the representation of the villagers of the said village, the State Government has installed, about 8 years ago, a deep tube well in the northern part of the village for irrigation facilities in the said village. It is stated that the said deep tube well is the only source of irrigation in the said village and because of the said tube well, the taxes are being regularly collected by the State Government from the said villagers. The lands which are provided with the irrigation facilities from the said tube well have been set out in the petition. It is alleged that the Government of West Bengal has brought out a scheme of digging a canal from the river Kangsabati which is popularly known as Kangsabati Project. The canal dug out from the river Kangsabati has been numbered as canal No. 25 from which various sub-canals are being taken inside the village of that part of the district of Hooghly and also Bankura. One of such sut-can-nals has now been determined to be taken through the area where the aforesaid deep tube well was installed. It is alleged that excavation of the canal would undoubtedly provide irrigation facilities to the villagers but not better than the deep tube well. It is alleged that from the deep tube well, water is available throughout the year, whereas in the case of canal it will be a case of regulated and limited supply of water and that also not throughout the year. It is alleged that the decision of the Government to remove the deep tube well is detrimental and prejudicial to the interest of the villagers. The villagers including the petitioners met the Block Development Officer. Goghat, Hooghly and represented before him whereby they demanded a change of the route of the said canal so that the areas where the deep tube well is already providing sufficient irrigation facilities are not affected. It appears that by his letter dated 28th February, 1973, the Block Development Officer forwarded the mass petition submitted by the cultivators of the Anur Deep Tube Well Centre to the Executive Engineer, Kangsabati Project. In the said letter he expressed his opinion that the existing alignment of the proposed sub-canal falls within command area of Anur Deep Tube Well Centre and in the event of execution of the same through the said alignment, good quality multiple cropped agricultural lands will be affected. The Block Development Officer also requested the Executive Engineer to consider the case and arrange change of alignment suitably to avoid the common area of the Deep Tube Well Centre as far as possible for more agricultural production. It further appears that there were further representations to that effect including a representation by one Nemai Chandra Mondal and one Chandi Das Mandal who are Government nominees to the Irrigation Committee of the said deep tube well, It appears that the Assistant Engineer, Agri-Irrigation Hooghly, II, Arambagh, also wrote a letter to the Executive Engineer, Kangsabati Project Bishnupur Division on 9th October, 1975 stating that it has been reported that the Executive Engineer is going to excavate a drainage channel from the main canal of Kangsabati river which is to be passed through commanding area of Anur Deep Tube Well Centre. In that event the Assistant Engineer requested the Executive Engineer to look into the matter personally so that the alignment of the proposed canal is changed in such a way that the existing commanding area of the said deep tube well is not affected. Even thereafter, there was a mass petition and a representation against the proposed scheme for construction of the said canal. In spite of the same, it appears that by an order dated 2nd December, 1975 the Additional District Magistrate Hooghly, as Collector under the said Act, requisitioned the lands specified in the said order under Sub-section (1) of Section 3 of the said Act for excavation of the said canal in connection with the Kangsabati Project. When the possession was sought to be taken on behalf of the respondents pursuant to the same, this application was moved before this Court and a Rule nisi was issued by me an 19th December, 1975.
(2.)Mr. Bhattacharjee, learned Advocate appearing in support of the Rule, raised threefold submissions before me in challenging the said order of requisition. He firstly contended that the order suffers from non-application of mind because the authority was not aware for what reason the property was required and he did not form the requisite opinion which is condition precedent to the exercise of power under Section 3 of the said Act. It is necessary for the purpose here to set out the provisions of Sub-section (1), of Section 3 of the said Act which is as follows:
"Section 3 (1)--If the State Government is of opinion that it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication, irrigation or drainage, or for the creation of better living conditions in rural or urban areas, not being ******** an industrial or other area excluded by the State Government by a notification in this behalf, by the construction or reconstruction of dwelling places for people residing in such areas, the State Government may, by order in writing, requisition any land and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning."
In this connection Mr. Bhattacharya drew my attention to the annexure to the petition which contains according to him the relevant order, the relevant portion of which is as follows:
"Whereas in my opinion it is necessary for maintaining supplies and services essential to the life of the community/communication/irrigation/drainage viz., for Excavation of Dist No. 25 (M-1) of the B. C. from CH. 79.40 to CH. 145.11 in connection with Kangsabati Project.................. to requisition the land(s) described in the schedule below/overleaf."
Mr. Bhattacharya submitted that the section contemplates that such requisition can be made provided the State Government forms the opinion that it was necessary to requisition the land for the objects stated therein. The section provides for alternative objects and requisition can be made for one or more of the same. The authority concerned has in his order merely quoted the section and put the objects of requisition in alternative manner. Various objects have been specified with an oblique. That shows that the authority concerned did not apply his mind but has blindly set out all the purposes in the order. Accordingly, there was non-application of mind in making the said order and the condition precedent for the exercise of the power under Section 3 has not been complied with.
(3.)The real submission of Mr. Bhattacharya centres around the language of the order. Accordingly. I asked Mr. Bhattacharya to produce the copy of the order served on the petitioner in this case. From the copy so produced, it was clear that the copy annexed to the petition was not the correct copy of the order served. Having regard to the same, I called for the original order of requisition in this case from the records of the, respondents which was produced before me. From there it appears that the language of the order was to the following effect. I have produced the same as it is, including the crossed out (here underlined) portion :--
"Whereas in my opinion it is necessary for the purpose of maintaining supplies and services essential to the life of the community providing proper facilities for transport/communication/irrigation/drainage viz. for excavation of Distributory No. 25 (Minor N. 1) of Kotulpur Branch Canal from Chainage 79.40 to Chainase 145.11 to requisition the lands in connection with the Kangsabati Reservoir Project described in the schedule below/overleaf."
From it is quite clear that the contention of Mr. Bhattacharya to this effect is not well-founded and it is misconceived. This requisition was made and the required opinion was formed on the basis that the requisition of the lands concerned is necessary for the purpose of a canal in connection with Kangsabati Project and that is for the purpose of providing proper facilities for irrigation/drainage. Accordingly, there is no merit in this contention of the petitioner and I reject the same. I hold that the condition precedent to the exercise of power under Section 3 has been duly complied with in this case and that the order has been passed on proper application of mind.