- (1.) THE facts in this case are briefly as follows: There is a Society registered under the Societies Registration Act (Act XXI of 1860) known as "the Society of Farmers and Rural Industrialists (hereinafter referred to as "the Society" ). The Society approached the Government of West Bengal for the purpose of compulsory acquisition of some land for the establishment of an agricultural colony and for creating better living condition therein. A tentative proposal with a lay-out plan was submitted to the Collector of 24 Parganas. The request was that 58. 90 acres of land in villages Ghola and Natagarh within the jurisdiction of Khardah P. S. should be acquired at the costs of the Society. The scheme was later on modified and the area that was to be acquired was scaled down to 28. 59 acres On the 4th of February 1955 a notification was issued under section 4 of the West Bengal Land Development and Planning Act, 1948 (herein after referred to as "the Act" ). A copy of this notification is at page 21 of the paper book. The notification states that the land was needed for the establishment of an agricultural colony and creation of better living conditions in the villages Ghola and Natagarh. The area to be acquired is stated to be 28. 59 acres. It appears that a large portion of this belonged to the petitioner company, the Bejoy Laxmi Cotton Mills Ltd. It is stated on behalf of the company that the land had been purchased by the company for the purpose of erecting factory buildings, roads, quarters for the labourers, etc. and that as a result of compulsory acquisition of the greater part of its lands, that object has been frustrated. It is stated however on behalf of the respondents that the land that was being acquired was not the land where on the factory was situated. It is said that in fact there was only a roofless steel structure and a few sheds so far as the factory was concerned, and the land under acquisition was "the land abandoned and unused on the western side of the factory's main land with dilapidated structures. " The notification under section 4 of the Act was published in the Calcutta Gazette dated the 17th February, 1955. On or about tie 10th March, 1955 the substance of the notification was published by the Collector as required by section 4 of the Act. The Government thereafter directed the Society to prepare a development scheme and submit the same to the Collector to enable him to hear objections under the Rules framed under the Act. On or about the 21st March, 1955 the Society submitted a development scheme and on the 18th of April, 1955 the Collector issued notice under Rule 5 (2) of the Rules, inviting objections by the end of May, 1955, against the scheme. About 30 petitions of objection were filed and heard but at that stage the petitioner company did not file any objection. It was sometime in the first week of June, 1955 that the company filed its objections. Although the objections are belated it is stated that the Collector heard the objections and even made a local inspection. By his report dated the 15th October, 1955 the objections were overruled. The Society was informed that the entire area notified was not needed but that 6. 96 acres out of the total notified area cl 28. 59 acres was cancelled and that the rest was going to be acquired and the Society was to pay a sum of Rs. 59,679 and odd as costs of acquisition. On or about the 10th of February, 1956 the Land Planning Committee at its 316th meeting considered the matter and recommended that the development scheme as modified should be approved and a declaration should be made under section 6 of the Act. The recommendation of the Land Planning Committee together with some office notes was placed before Sri Rai Mohan Samanta who was then acting as the Assistant Secretary of the Government of West Bengal in its Land and Land Revenue Department. Sri Samanta has filed an affidavit affirmed on the 12th of August, 1957 and ha says there that he approved of the development scheme although no written order was made. On the 19th April, 1956 a letter was written by Sri Samanta as Assistant Secretary to the Secretary of the society, stating that the detailed scheme and the lay-out plan had been approved by Government and that the Society should submit a draft agreement. On the 21st July, 1956 a declaration was issued under section 6 of the Act in respect of 21. 63 acres of land situate in villages Ghola and Natagarh. On the same day another notification was issued to the effect that a copy of the agreement between the Government and the Society was open for inspection by the public. On the 28th of August, 1956 notice to take possession was issued under Rule 8 of the Land Development and Planning Rules (hereinafter referred to as "rules" ). Under that Rule, as soon as a declaration under section 6 had been published the Collector may cause a public notice to be given at convenient places in respect of any waste or arable land including any beel, baor, tank or other watery area and the land may be taken possession of within three days from the date of such notice. In the notice it was stated that possession should be taken on the 4th of September, 1956. This Rule was however issued on the 3rd of September, 1956 and the taking of possession has been restrained.
(2.) IN the petition, reference has been made to two other notifications issued under section 4 of the Act, namely, notification dated the 24th January, 1956 relating to 8. 55 acres of land required for the purpose of settling immigrants, and another dated the 28th February, 1955 in respect of 14. 46 acres, required for a similar purpose. I find however that these two notifications have nothing to do with the subject matter of this application and need not be considered any further.
(3.) IN the petition, several grounds have been taken but only one has been pressed at the hearing and it is this: Under section 5 of the Act, a development scheme is prepared and submitted to the State Government, which has to be sanctioned by it. Under section 6 of the Act, when a development scheme is sanctioned under section 5, the State Government has further to be satisfied that any land in the notified area for which such scheme had been sanctioned was needed for the purpose of executing such scheme. After it is so satisfied, a declaration may be made to the effect that such land was needed for a public purpose. It is therefore argued that the State Government has to exercise two functions. Firstly, it has to sanction the scheme and secondly it has a duty to be satisfied about certain things mentioned above, before a declaration is made under section 6. It is argued that in the present case it cannot be said that the Government sanctioned any scheme nor can Government be said to have been satisfied before issuing the declaration under section 6 of the Act. Originally there was a counter-affidavit filed by Sri B. M. Ganguly, Assistant Secretary to the Land and Land Revenue Department, who merely said that on the 21st July, 1956 the matter was fully considered by Sri S. Banerjee, the Secretary, Land and Land Revenue and an order was made by him on behalf of the Government to issue the declaration under section 6 which was duly published in the Calcutta Gazette on the 9th of August, 1956. This was of course quite inadequate information, upon which the point could not be determined. However, the respondents in their affidavits asked for leave to refer to the records and certain records were produced. Directions were then given for filing further affidavits and two affidavits have been filed, one by Sri S. Banerjee, Secretary, Land and Land Revenue Department, Government of West Bengal and another by Sri Rai Mohan Samanta who was at the relevant time acting as the Assistant Secretary, Government of West Bengal in the said department. It appears from the affidavits that the statement of Mr. Ganguly was not accurate, but that whatever action has been taken in the matter, including the sanctioning of the scheme and being satisfied for the purpose of issuing the declaration under section 6, was done by Sri Samanta as an Assistant Secretary in the Land and Land Revenue Department. The question is as to whether Sri Samanta had authority to do so and whether there has been a sufficient compliance with the law. The stand taken by Mr. Gupta on behalf of the petitioner is that the Assistant Secretary had no power to accord sanction or to be satisfied and that in any event such sanction and satisfaction cannot be said to be that of Government and consequently the law has not been satisfied. It is this question which has to be investigated. Article 154 of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. It had been held that a Minister of State is an officer subordinate to the Governor. We next come to Article 166 (3) of the Constitution which runs as follows:- "the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion". ;