Dulal Kar Modak Vs. State of West Bengal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/863578
SubjectProperty
CourtKolkata High Court
Decided OnJan-19-2001
Case NumberC.O. No. 17473(W) of 1992
JudgeDilip Kumar Seth, J.
Reported in(2001)2CALLT336(HC)
ActsRequisition and Acquisition of Immovable Property Act, 1952 - Sections 3, 5, 6, 6(1), (1A), (4), 7 and 23;; Property Requisitioned under Defence of India Act, 1969;; Requisitioned Land (Continuance of Powers) Act, 1947 - Section 24;; Defence of India Rules, 1939;; Requisitioned Land (Continuance of Powers) Ordinance, 1946;; Requisitioning and Acquisition of Immovable Property Act, 1970
AppellantDulal Kar Modak
RespondentState of West Bengal and ors.
Appellant Advocate Mr. Mrinal Kanti Das and ;Mr. Subhabrata Das, Advs.
Respondent AdvocateMr. Somen Dasgupta and ;Mr. Uday Chakraborty, Advs.
Cases ReferredKamala Bala Sen v. State of West Bengal
Excerpt:
- d.k. seth, j.1. the land of the petitioner measuring about 0.345 was requisitioned under the defence of india act on 27.6.1945 and the possession was taken for the public purpose by the respondents. subsequently the defence of india act having stood repealed, the requisition continued by virtue of the requisitioned land (continuance of powers) act. 1947 replacing 1946 ordinance with the same title. with the enactment of the requisitioning and acquisition of immovable property act, 1952 the property requisitioned continued under the previous act was validated by reason of section 3 of the said 1952 act and the said requisitioned land (continuance of powers) act, 1947 was repeated by section 24 thereof. the petitioner contends that no compensation has ever since been paid. only in 1992 the petitioner was informed that out of the said property 0.434 decimal was released in favour of the petitioner in terms of section 6 of the 1952 act.2. mr. das, learned counsel appearing on behalf of the writ petitioner contends that this was really a property transaction, inasmuch as, the possession was never handed over to the petitioner but the facts remain that the land is being occupied by squatters. according to him, the possession is to be restored to the petitioner in the position on which the possession was taken at the time of initial requisition. simple de-requisition or release will not serve the purpose. in such circumstances, he made two alternative prayers (1) that the possession of the property may be given in the same state in which it was taken from the petitioner and (2) compensation for the period during which the petitioner was kept out of possession be calculated and paid to him or alternatively the respondent may acquire the property and pay compensation in accordance with law in case the possession is not possible to be handed over to the petitioner.3. mr. dasgupta, learned senior counsel appearing for the state on the other hands points out that the total area of 1.37 acres of land was acquired. out of the said area being 0.445 was acquired by the respondent. therefore, the rest of the area either to be released or de-requisitioned or in the alternative it can be acquired.4. mr. dasgupta, learned counsel, further points out that having regard to section 6 of the 1952 act this property cannot be acquired under section 7 of the 1952 act. however, it has to be acquired under the land acquisition act, mr. das gupta, however has not explained as to how it has to be done. mr. dasgupta, in his usual fairness has taken a fair stand that it is the law that will govern the situation. having regard to the facts and circumstances of this case and the state being not an ordinary litigant it cannot oppose the situation unless it is permissible in law.5. i have heard both the learned counsel for the parties. this case in fact relates to a little complicated situation. in the case of kamala bala sen v. state of west bengal reported in 1976(1) clj 178 cited by mr. das, learned counsel for the petitioner, history of the legislation has since been traced as it appearing from paragraph 2 thereof. he contends relying on the said decision that in a similar situation the court has held that such acquisition could be made only under sub-section (1) of section 4 of 1948 act.6. it appears that the defence of india act, 1939 was continued and amended from time, to time and the possession of the requisitioned land which was acquired under the defence of india rules, 1939 framed under the defence of india act, 1939 was allowed to be continued by reason of the enactment of the requisitioned land (continuance of powers) ordinance, 1946. by reason of section 23 of the 1952 act, the land requisitioned under the defence of india act, 1939 or the rules framed thereunder and the possession whereof was continuing under the requisitioned land (continuance of powers) act, 1947 were validated under the 1952 act and the 1947 act stood repealed by reason of section 24 thereof. thus the land acquired is to be governed by 1952 act.7. section 3 of the said act empowers requisition and section 5 prescribes the right over the requisitioned property while section 6 empowers release from requisitioning by the central government which runs as follows:'6. release from requisitioning--(1) the central government may at any time release from requisition any property requisitioned under this act and shall, as far as possible, restore, the property in as a good condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force: provided that where the purposes for which any requisitioned properly was being used cease to exist, the central government shall, unless the property is acquired under section 7, release that property, as soon as may be, from requisition. (1a) notwithstanding anything contained in sub-section (1), the central government shall release from requisition,-- (a) any property requisitioned or deemed to be requisitioned under this act before the commencement of the requisitioning and acquisition of immovable property act, 1970, on or before the expiry of a period of seventeen years from such commencement: (b) any property requisitioned under this act after such commencement, on or before the expiry of a period of seventeen years from the date on which possession of such property was surrendered or delivered to, or taken by, the competent authority under section 4, unless such property is acquired under section 7 within the period of seventeen years aforesaid. (2) where any property is to be released from requisition under subsection (1) or sub-section (1a) the competent authority may, after such inquiry, if any, as it may in any case consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the properly shall be given and such possession shall, as far as practicable, be given to the person from whom possession was taken at the time of the requisition or to the successors-in-interest of such person. (3) the delivery of possession of the property to the person specified in an order under sub-section (2) shall be a full discharge of the central government from all liability in respect of property, but shall not prejudice any rights in respect of the property which any person may be entitled by due process of law to enforce against the person to whom possession of the property is given. (4) where any person to whom possession of any requisitioned property is to be given is not found and has no agent or other person empowered to accept delivery on his behalf, the competent authority shall cause a notice declaring that the property is released from requisition to be affixed on some conspicuous part of the property and shall also publish the notice in the official gazette. (5) when a notice referred to in sub-section (4) is published in the official gazette, the property specified in such notice shall cease to be subject to requisition on and from the date of such publication and shall be deemed to have been delivered to the person entitled to possession thereof and the central government shall not be liable for any compensation or other claim in respect of the property for any period after the said date. (6) where any property requisitioned under this act or any material part thereof is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was requisitioned by reason of fire, earthquake tempest, flood or violence of any army or of mob or other irresistible force, the requisition shall, at the option of the central government, be void. provided that the benefit of this sub-section shall not be available to the central government where the injury to such property is caused by any wrongful act or default of the government'. 8. a plain reading of the said provision shows that by reason of subsection (1a) there are certain mandatory provisions when the central government is obliged to release the property from requisitioning as contemplated in clauses (a) and (b). in the present case it is contended that clause (b) is applicable. in fact, clause (b) prescribed that such release is to be effected after 17 years from the date on which possession of such property was surrendered or delivered to, or taken by the competent authority under sub-section 4. even if i take it that such possession is deemed to have been taken on the date when the 1952 act had come into force even before, the 17 years lapsed in 1969. sub-section (1a) specifies the provision of such acquisition, in case acquisition has not been made in terms of section 7 of 1952 act in that event the property can no more be retained as requisitioned land and it was required to be released.9. it is an admitted fact as is appearing from the communication made to the petitioner in 1992 that the state released the land in 1993. even then it was long after 17 years. therefore, the same cannot be said to be a released within the meaning of sub-section (1a) of section 6 of the said act.10. thus as contended by mr. das, it seems that the release was not within the jurisdiction of the authority since they could have released immediately after the expiry of 17 years. in any event, for the purpose of release of the land certain procedures have been laid down in section 6 of the said act. mr. das, contends that no such step has ever been taken under section 6 of the said act. even if it was taken, no communication had ever been made to the petitioner. at the same time, mr. dasgupta, has not been able to produce anything to show that steps had been taken. however, it is an admitted position that 0.445 acres of lands in plot no. 184 of mouza ledlisole, p.s. khatra, bankura, were acquired which is not in dispute between the parties. so far as the remaining portion of the land is concerned, the land having been released in terms of sub-section 1(a) of section 6 of the act, the central government is liable to pay compensation for the deprivation of the possession of the land to the petitioner. there nothing to show that after such release, possession was handed over to the petitioner in the same position on which it was requisitioned. there is nothing to show that such possession has been given to the petitioner. thus the property will be deemed to be in possession of the government even till today.11. since there cannot be any acquisition in terms of section 7 of 1952 act by reason of the discussion made above and at the same time the property having been retained by the government for such a long time andthe fact that the land is occupied by the squatters and the petitioner is asking for return of the land, it would be open to the state to take appropriate steps either to return the land after removing the squatters and deliver the possession to the petitioner in the same state on which it was requisitioned upon payment of compensation for the period since when the land was requisitioned till the delivery of the possession or to acquire the said land, if they are so advised, under any of the provision of law for the time being in force. it may be noted that there will be two part of possession, one in respect of acquisition of the land, if it is so acquired by the state government to determine in accordance with law under which the acquisition might be effected and the other part is the compensation payable for the period the land was requisitioned and possession was taken.12. in case the state government decides to acquire the property in that event the state should do so within a period of three months from date of communication of this order.13. it is mode clear that i have not entered into the merit of the case. it would be open to the central government to take steps in accordance with law. since the respondent has not used any affidavit, the allegation made in the writ application shall deemed to have not been admitted by the respondents, uncontroverted.the writ application is thus disposed of. there will be no order as to costs.14. petition disposed of
Judgment:

D.K. Seth, J.

1. The land of the petitioner measuring about 0.345 was requisitioned under the Defence of India Act on 27.6.1945 and the possession was taken for the public purpose by the respondents. Subsequently the Defence of India Act having stood repealed, the requisition continued by virtue of the Requisitioned Land (Continuance of Powers) Act. 1947 replacing 1946 Ordinance with the same title. With the enactment of the Requisitioning and Acquisition of immovable Property Act, 1952 the property requisitioned continued under the previous Act was validated by reason of section 3 of the said 1952 Act and the said Requisitioned Land (Continuance of Powers) Act, 1947 was repeated by section 24 thereof. The petitioner contends that no compensation has ever since been paid. Only in 1992 the petitioner was informed that out of the said property 0.434 decimal was released in favour of the petitioner in terms of section 6 of the 1952 Act.

2. Mr. Das, learned counsel appearing on behalf of the writ petitioner contends that this was really a property transaction, inasmuch as, the possession was never handed over to the petitioner but the facts remain that the land is being occupied by squatters. According to him, the possession is to be restored to the petitioner in the position on which the possession was taken at the time of initial requisition. Simple de-requisition or release will not serve the purpose. In such circumstances, he made two alternative prayers (1) that the possession of the property may be given in the same state in which it was taken from the petitioner and (2) compensation for the period during which the petitioner was kept out of possession be calculated and paid to him or alternatively the respondent may acquire the property and pay compensation in accordance with law in case the possession is not possible to be handed over to the petitioner.

3. Mr. Dasgupta, learned senior counsel appearing for the State on the other hands points out that the total area of 1.37 acres of land was acquired. Out of the said area being 0.445 was acquired by the respondent. Therefore, the rest of the area either to be released or de-requisitioned or in the alternative it can be acquired.

4. Mr. Dasgupta, learned counsel, further points out that having regard to section 6 of the 1952 Act this property cannot be acquired under section 7 of the 1952 Act. However, it has to be acquired under the Land Acquisition Act, Mr. Das Gupta, however has not explained as to how it has to be done. Mr. Dasgupta, in his usual fairness has taken a fair stand that it is the law that will govern the situation. Having regard to the facts and circumstances of this case and the State being not an ordinary litigant it cannot oppose the situation unless it is permissible in law.

5. I have heard both the learned counsel for the parties. This case in fact relates to a little complicated situation. In the case of Kamala Bala Sen v. State of West Bengal reported in 1976(1) CLJ 178 cited by Mr. Das, learned counsel for the petitioner, history of the legislation has since been traced as it appearing from paragraph 2 thereof. He contends relying on the said decision that in a similar situation the Court has held that such acquisition could be made only under sub-section (1) of section 4 of 1948 Act.

6. It appears that the Defence of India Act, 1939 was continued and amended from time, to time and the possession of the requisitioned land which was acquired under the Defence of India Rules, 1939 framed under the Defence of India Act, 1939 was allowed to be continued by reason of the enactment of the Requisitioned Land (Continuance of Powers) Ordinance, 1946. By reason of section 23 of the 1952 Act, the land requisitioned under the Defence of India Act, 1939 or the Rules framed thereunder and the possession whereof was continuing under the Requisitioned Land (Continuance of Powers) Act, 1947 were validated under the 1952 Act and the 1947 Act stood repealed by reason of section 24 thereof. Thus the land acquired is to be governed by 1952 Act.

7. Section 3 of the said Act empowers requisition and section 5 prescribes the right over the requisitioned property while section 6 empowers release from requisitioning by the Central Government which runs as follows:

'6. Release from requisitioning--(1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore, the property in as a good condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force:

Provided that where the purposes for which any requisitioned properly was being used cease to exist, the Central Government shall, unless the property is acquired under section 7, release that property, as soon as may be, from requisition.

(1A) Notwithstanding anything contained in sub-section (1), the Central Government shall release from requisition,--

(a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of the Requisitioning and Acquisition of immovable Property Act, 1970, on or before the expiry of a period of seventeen years from such commencement:

(b) any property requisitioned under this Act after such commencement, on or before the expiry of a period of seventeen years from the date on which possession of such property was surrendered or delivered to, or taken by, the competent authority under section 4, unless such property is acquired under section 7 within the period of seventeen years aforesaid.

(2) Where any property is to be released from requisition under subsection (1) or sub-section (1A) the competent authority may, after such inquiry, if any, as it may in any case consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the properly shall be given and such possession shall, as far as practicable, be given to the person from whom possession was taken at the time of the requisition or to the successors-in-interest of such person.

(3) The delivery of possession of the property to the person specified in an order under sub-section (2) shall be a full discharge of the Central Government from all liability in respect of property, but shall not prejudice any rights in respect of the property which any person may be entitled by due process of law to enforce against the person to whom possession of the property is given.

(4) Where any person to whom possession of any requisitioned property is to be given is not found and has no agent or other person empowered to accept delivery on his behalf, the competent authority shall cause a notice declaring that the property is released from requisition to be affixed on some conspicuous part of the property and shall also publish the notice in the Official Gazette.

(5) When a notice referred to in sub-section (4) is published in the Official Gazette, the property specified in such notice shall cease to be subject to requisition on and from the date of such publication and shall be deemed to have been delivered to the person entitled to possession thereof and the Central Government shall not be liable for any compensation or other claim in respect of the property for any period after the said date.

(6) Where any property requisitioned under this Act or any material part thereof is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was requisitioned by reason of fire, earthquake tempest, flood or violence of any army or of mob or other irresistible force, the requisition shall, at the option of the Central Government, be void.

Provided that the benefit of this sub-section shall not be available to the Central Government where the injury to such property is caused by any wrongful act or default of the Government'.

8. A plain reading of the said provision shows that by reason of subsection (1A) there are certain mandatory provisions when the Central Government is obliged to release the property from requisitioning as contemplated in clauses (a) and (b). In the present case it is contended that clause (b) is applicable. In fact, clause (b) prescribed that such release is to be effected after 17 years from the date on which possession of such property was surrendered or delivered to, or taken by the competent authority under sub-section 4. Even if I take it that such possession is deemed to have been taken on the date when the 1952 Act had come into force even before, the 17 years lapsed in 1969. Sub-section (1A) specifies the provision of such acquisition, in case acquisition has not been made in terms of section 7 of 1952 Act in that event the property can no more be retained as requisitioned land and it was required to be released.

9. It is an admitted fact as is appearing from the communication made to the petitioner in 1992 that the state released the land in 1993. Even then it was long after 17 years. Therefore, the same cannot be said to be a released within the meaning of sub-section (1A) of section 6 of the said Act.

10. Thus as contended by Mr. Das, it seems that the release was not within the jurisdiction of the authority since they could have released immediately after the expiry of 17 years. In any event, for the purpose of release of the land certain procedures have been laid down in section 6 of the said Act. Mr. Das, contends that no such step has ever been taken under section 6 of the said Act. Even if it was taken, no communication had ever been made to the petitioner. At the same time, Mr. Dasgupta, has not been able to produce anything to show that steps had been taken. However, it is an admitted position that 0.445 acres of lands in Plot No. 184 of Mouza Ledlisole, P.S. Khatra, Bankura, were acquired which is not in dispute between the parties. So far as the remaining portion of the land is concerned, the land having been released in terms of sub-section 1(A) of section 6 of the Act, the Central Government is liable to pay compensation for the deprivation of the possession of the land to the petitioner. There nothing to show that after such release, possession was handed over to the petitioner in the same position on which it was requisitioned. There is nothing to show that such possession has been given to the petitioner. Thus the property will be deemed to be in possession of the Government even till today.

11. Since there cannot be any acquisition in terms of section 7 of 1952 Act by reason of the discussion made above and at the same time the property having been retained by the Government for such a long time andthe fact that the land is occupied by the squatters and the petitioner is asking for return of the land, it would be open to the State to take appropriate steps either to return the land after removing the squatters and deliver the possession to the petitioner in the same state on which it was requisitioned upon payment of compensation for the period since when the land was requisitioned till the delivery of the possession or to acquire the said land, if they are so advised, under any of the provision of law for the time being in force. It may be noted that there will be two part of possession, one in respect of acquisition of the land, if it is so acquired by the State Government to determine in accordance with law under which the acquisition might be effected and the other part is the compensation payable for the period the land was requisitioned and possession was taken.

12. In case the State Government decides to acquire the property in that event the state should do so within a period of three months from date of communication of this order.

13. It is mode clear that I have not entered into the merit of the case. It would be open to the Central Government to take steps in accordance with law. Since the respondent has not used any affidavit, the allegation made in the writ application shall deemed to have not been admitted by the respondents, uncontroverted.

The writ application is thus disposed of. There will be no order as to costs.

14. Petition disposed of