JUDGMENT
1. The Court: The writ petitioners are the owners of premises No. 14 Hare Street, Calcutta (hereinafter referred to as the ‘said premises’). The premises consists of an area of 10 Collahs 7 Chittacks 15 Sq. ft. of land and a three storied building standing thereon situate In BED Bag in close proximity to Telephone Bhawan the GPO and the Reserve Bank of India and other important office complexes. On or about 2.3.44 the entire second floor of the said premises was requisitioned under the Defence of India Act which came into effect from 2.3.42 at the rate of occupation charges of the said floor of Rs. 272 per month payable according to English Calendar month. The same was subsequently followed to be continued by a requisition order under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 and the same is under the possession of the Department of the State Government. In the said occupied portion of the second floor of the premises. West Bengal Cernmic Development Corporation, a Unit of Cottage and Small Scale Industries Limited has been occupying the said premises. A writ petition was moved challenging the order dated 13.9.59 which was issued for requisition of the entire second floor under the said Act of 1947 which was subsequently numbered as Matter No. 3601 of 1990. The High Court at Calcutta was pleased to quash the order of requisition of the second floor of the said premises and respondents were directed to hand over possession.
2. Thereafter, by a notification bearing No. Calcutta No. 8603 LA(H)/ SC/-19/90 dated 17.8.90 issued by Land Acquisition Collector, Calcutta, the respondents authorities purported to acquire the entirely of the second floor of the said premises under Land Acquisition Act. The same was followed up by filing of another writ petition under Article 226 of the Constitution of India wherein the notification dated 27.8.90 was challenged and by an order dated 5.9.91 the High Court, Calcutta quashed the said notification dated 27.8-90. It has been contended that In terms of section 10B of the said Act of 1947 when an order of requisition of any premises continued for a period more than 25 years, the State Government would be required to hand over the possession of said premises after coining into
force of the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1986. Sometimes in June, J993, the petitioners filed another petition under Article 226 of the Constitution of india in the High Court at Calcutta with a prayer that respondents be directed to hand over possession forthwith and to pay compensation at the rate of Rs. 10 per Sq, ft. for use and occupation of second floor of the said premises. By an order dated 18.8.93 Tarun Chatterjee, J. disposed of the said writ petition by making the rule absolute with a direction upon the respondents to deliver possession to the writ petitioners within 4 months from the date of communication of the order with a rider clause that during the period of continuance of the said 4 months it would be open to the concerned respondents to acquire the property in accordance with law. Against the said order an appeal was taken out and a Division Bench of the High Court at Calcutta by an order dated 18.4.94 disposed of the said appeal by directing the respondent authorities to pay by way of ad-interim measure a monthly compensation at the rate of Rs. 10 per Sq. ft. and the direction was passed upon the respondents to complete the acquisition proceedings within 6 months from the date thereof falling which the respondents would be liable to hand over vacant possession. In the meantime, on 5.8.94 the respondent No. 3 published a notification bearing Calcutta No. 2024–LA(II)/5C-19/90, dated 19.7.94 in the Calcutta Gazette whereby it was stated that the said premises is likely to be taken on behalf of the State Government for public purpose for providing permanent accommodation for Unit of Cottage and Small Scale industries and also for West Bengal Ceramic Development Corporation. It was further mention in the notification dated 19.7.94 that respondent No. 3, namely, the First Land Acquisition Collector, Calcutta in exercise of his power conferred by sub-section (4) of section 17 of the Land Acquisition Act, the Governor Is pleased to direct that provisions of section 5A of the said Act of 1894 shall not apply to the said premises. The respondents, however, filed an application before the Division Bench for extension of time to complete acquisition proceeding and by an order dated 15.11.94 the High Court rejected such prayer and dismissed the safd application. The respondent No. 3, as mentioned earlier, Issued a declaration bearing No. Calcutta No. 3122-LA/5C-19/90, dated 16.6.95 Issued under section 6 of the said Act and the same was published in the Calcutta Gazette on 18.7.95. Thereupon by a notice dated 10.10.95, the Land Acquisition Collector intimated the petitioners that the possession of the premises would be handed over to the petitioners on 16.10.95 at 1.00 p.m. but the same was not delivered to the petitioners. In view of the alleged non compliance of the order passed by the Division Bench of this High Court the petitioners filed an application for contempt and while disposing of the said contempt proceeding, the Divisions Bench extended time to complete the proceedings for acquisition in respect of said premises till 31.12.95. On 29.12.95 the petitioners received a copy of the Memo bearing No. 411(16)/ 2, dated 28.12.93 issued by the said respondent No. 3 addressed to the Special Land Acquisition Judge, Alipore whereby the petitioners were informed that an ex-parte award for a sum of Rs. 52,39,306.74 has been made by the said respondent in respect of the said premises and the cheque for the aforesaid amount has been deposited by the respondent No. 1 to the said Authority. The said award was passed ex-parte without any opportunity of representation nor it transpires that any notice notifying the
intention to proceed ex-parte has been ever issued. A prayer for postponement of the hearing made by the petitioners through their Advocate-on-Record vide his letter dated 8.12.95, in the meantime, stood rejected. The petitioners, without prejudice to their right, sometime on 28.2.96 have filed an application under section 18 of the said Act. In this writ petition inter alia amongst others a prayer for issuance of Writ of Mandamus was made to cancel and/or to revoke the notification bearing Calcutta No. 2024-LA (II)/5C 19/90, dated 19.7.94 issued by the respondent No. 3 published in the issue of Calcutta Gazette on 5.8.94 and for revocation of declaration contained in Calcutta Gazette No. 3122-LA/5C-19/90, dated 16.6.95 issued by the said respondent No. 3 under section 6 of the L.A. Act published in the Calcutta Gazette on 18.7.95 and for other ancillary and/or analogous reliefs.
3. As referred to earlier, one of the major challenges which was thrown is about the notification dated 19.7.94 as stated earlier issued by the respondent No. 3 published in the issue of Calcutta Gazette on 5.8.94 which is marked as annexure ‘C’ appended to the writ petition. From the perusal of the contents of the said notification as published in the Calcutta Gazette, it appears that there was a reference made therein that in exercise of powers contained in terms of sub-section (4) of section 17 of the Land Acquisition Act, the Governor is pleased to direct that the provisions of section 5A of the Act shall not apply to the lands as prescribed in the Schedule mentioned therein to which, in the opinion of the Governor, the provisions of subsection (1) of section 17 of the said Act are applicable, in view of the challenge thus thrown, there were contentions and counter-con ten lions raised by the learned counsel appearing for the parties with regard to construction of section 17(4) of the Land Acquisition Act Section 17(4) as it is couched refers to the provisions of sub-section (1) and sub-section (2) of section 17 and where the said sub-sections are applicable, then only the question of invocation of the non application of provisions of section 5A shall apply. As a result of the same it is necessary to carefully go through the provisions as separately contained under sub-section (1) and (2) of aforesaid section 17 of the Act section 17(1) provides that in case of urgency whenever the appropriate Governments so directs on the expiry of 15 days from the publication of the notice mentioned in section 9(1) can take possession of any waste or arable land needed for the public purpose or for a company. Section 17(2) stipulates whenever owing to any sudden change in the channel of any navigable river or other unforseen “emergency it becomes necessary for any Railway Administration to acquire immediate possession of any land for the maintenance of traffic or for the purpose of making thereon a river side or Ghat Station or of providing convenient connection with or access to any such Station the Collector may after the publication of the notice, mentioned in sub-section (1) and with the previous consent of the appropriate Government, enter upon and take possession of land which shall thereupon vest in the Government free from all encumbrances. It is contemplated in the Act that after publication of preliminary notification issued under section 4 of the Land Acquisition Act, a right of objection is being conferred on the person affected or any person who is interested in the land in question which afflicted by notification under section 4 and he can raise such objection within a period of 30 days from the date of issuance of such objection. The same has got to be followed by due opportunity of
hearing to be given to the objectors raising objection under provisions of section 5A of the Land Acquisition Act. The said objection be speaks of a valuable right of a person interested in the land being afflicted by the notification and the same when it is threatened to be taken away it will have a tendency to make and invoke into a valuable right conferred under the statute in favour of the person interested in the land. The right of objection and/or hearing can be taken away or abridged on the formation of opinion on the part of the appropriate Government provided the urgency is fulfilled in terms of section 17(1) or 17(2) of the Act. So far as section 17(1) of the Act is concerned, it only stipulates the provisions of urgency but section 17(2) tends to elaborate immediate necessity necessitating the formation of opinion of urgency owing to sudden change of the force of river or unforseen emergency or necessary for Railway Administration for maintenance of a traffic or a river side ghat station or for making provisions of convenient connection or any access to such station. A comparative reading of Clauses 1 and 2 tends to suggest that provisions engrafted under section 17(2) are of such nature that it cannot brook delay of the period of enquiry under section 5A of the Act. The said sub-section is indicative of Imperative urgency because of Imminent situation warranting interference for taking over the land in question to meet that unforseen circumstances which have taken place suddenly. Even, a moments delay or compliance of procedural prodastlnation (sic) may fraustrate the very purpose to deal with such situation as contemplated under section 17(2) of the Act. Section 17(2) unequivocally provides for imminent danger and/ or threat due to unforseen circumstances which have got to be dealt with by utmost promptitude on the part of the authorities. Section 17(1) only makes a mention of urgency without adumberating the Illustrative factors as elucidated under section 17(2) and as such the question may arise as to whether the expression ‘urgency’ as contemplated under section 17(1) stands on the same parity of fooling to that of section 17(2). It provides for a clue for the conspectus of analysis as to whether sections 17(1) and 17(2) are Inter-related or they are independent of each other. This court is made to ponder as to why sections 17(1) and 17(2) have been bifurcated and they hove not been incorporated in a composite amalgam. Is it with a view that the legislature in its wisdom has bifurcated section 17(1) and 17(2) into separate clauses keeping in view the degree of difference about urgency in section 17(1) and in section 17(2)? it is significant to mention that section 17(4) refers to the removal of the embargo of the compliance of section 5A both in cases covered by sub-section (1) and sub-section (2) of section 17. This court while keeping this point in the background of its analysis has been confronted by number of decisions relied on behalf of the writ petitioners. Mr. Malllck, the learned counsel appearing on behalf of the writ petitioners has referred to the case of Natwarlal Jajerambhat Patel v. State of Gujarat & Others, and it has been contended by placement of reliance on the said decision that the phrase ‘in case of urgency’ in section 17(4) has to be read in the light of the provisions of section 5A of the Act. The urgency contemplated by the provisions of sections 17(1) and 17(4) of the Act must be of such a character that it cannot brooke the delay of the period of enquiry under section 5A of the Act. If delay is caused, the purpose of acquisition will be threatened to be affected. The urgency must be such that the purpose of acquisition cannot wait for the period of 30 days. A further reference was made to the
case of Y.N. Mahqfan & Another v. State of Maharashtra & Others where Division Bench of the said High Court has observed that while applying the urgency clause as contemplated under section 17(4) the State should take considerable care and responsibility. Application for urgency cannot be a substitute of laxity on the part of the State administration. The Acquiring authority is considered to be the best judge of the situation and its decision basically subjective would normally not be interfered with by the High Court but where no factor is disclosed and no consideration revealed and the court is left in the dark, then, the application of urgency clause may be put to serious jeopardy. In the background of the above decisions as referred to being relied on by the petitioners, this court of its own wants to consider some of the decisions of the apex court touching on the said point. In this context, a reference may be made to the decision in a case of Deepak Pahwa & Others v. Lieutenant Governors of Delhi & Others where the following words as contained in the relevant section, namely, ‘the issue of the notification’ can only signify the completion of the prescribed process rather the twin process of inviting the interested public of the proposed acquisition in the manner provided by section 4(1), that is, by publication in the official Gazette and giving public notice in the locality. It has been further observed in the said decision that very often persons interested in the land proposed to be acquired make various representations against the proposed acquisition. This is bound to result in multiplicity of enquiries, communications and discussions leading invariably the delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. Even a reference was made in the said judgment about the case of Kastreddy Papalah v. Government of Andhra Pradesh where a reference was made about the delay on the part of the lardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of issuance of the notification and to hold there was never any urgency. This court of Us own wants to make a further reference to the case of Kajasthan Housing Board & Others v. Sri Kfshan & Others, , where it was held that Government’s satisfaction about urgency as contemplated in section 17(4) of the connected Act regard being subjective when there is material upon which satisfaction could have been formed fairly, court would not interfere not would it examine the materials as an appellate authority to see existence of urgency. There is no doubt that an enquiry under section 5A ought to have been held to be a valuable right given to the persons interested. it has been argued by the learned counsels appearing for the petitioners that there was no such urgency as to call for dispensing with the provisions of section 5A of the Land Acquisition Act as it has not so urgent as to brooke and delay and therefore the invocation of urgency was not called for. it is needless to reiterate the salient observations made by the apex court that urgency must exist on the date of issue of the notification. Mere pre-notification delay would not render the invocation of the urgency provisions void. Shorn of repetition it is necessary to keep in mind that in terms of section 17(1) in cases of urgency as contemplated under the said provisions of section 17(4), section 17(1) may come into play and appropriate Government may direct that the provisions of section 5A shall not apply. Similarly, the said clause of section 17(4) will
apply also in cases covered by section 17(2) of the Act. Section 17(2) contemplates cases which do not brooke for any delay for which immediate intervention is necessary by way of taking over of the possession and the same was attempted to be Illustrated in the said provisions of section 17(2) by taking note of different contingencies. There is no doubt that when Immediate steps are required for the appropriate authorities for acquisitions to step into possession and it cannot brooke for any delay, it can waive the provisions of section 5A and it can skip over the same and proceed straight from section 4 to section 6 without taking note of objection under section 5A. The contingent events of Immediate imperative need have been covered and contemplated under section 17(2). Similarly, section 17(4) has been made applicable with regard to the cases covered under section 17(1) which only makes reference without illustration about cases of urgency which is dependent on the subjective satisfaction of the authorities. If there are materials on record warranting an inference to be drawn by the appropriate authority either way about urgency, the same is not required to be interfered with as objective considerations and not the germane consideration but non consideration on the part of the appropriate authority is the sina qua non to attract the provisions of section 17(4) of the Act as it has been hinted and indicated earlier that there is difference of degree in a scale of measurement with regard to the barometer of extent to urgency as contemplated in section 17(1) and section 17(2) of the Land Acquisition Act. There is reason to believe that the urgency as contemplated under section 17(1) does not stand on the same parity of footing to that of section 17(2). Section 17(1) obviously include such other cases which are not covered by section 17(2) but they are also considered to be urgent by the appropriate authorities on the available materials before it for which it deems fit to issue the notification in the Official Gazette. The same was followed by declaration also published in the Gazette that it is needed for public purpose for permanent accommodation for unit of Cottage and Small Scale industries and also for West Bengal Ceramic Development Corporation. It is not out of context to re-mention that the Division Bench of this High Court by an order dated 18.4.94 while disposing of an appeal directed the respondents to complete the acquisition proceedings within 6 (six) months from 18.4.94 and If the same could not be completed, the respondents would be required to hand over possession. In the meantime, before expiry of the aforesaid period of 6 (six) months, the respondent No. 3 published a notification in the Calcutta Gazette on 19.7.94 that the premises would be taken on behalf of the State Government for the reasons mentioned therein. The respondents insplle of filing of their application before the Division Bench for extension of time to complete the acquisition proceeding, the same was turned down by the Division Bench. It was followed by initiation of a proceeding for contempt and the time was extended till 31.12.95. On 29.12.95 the petitioners received a copy of the Memo bearing No. 411(16)/ 2, dated 28.12.93 issued by the respondent No. 3 whereby the petitioners were informed that an exparle award for a sum of Rs. 52,39,306.74 has been made by the said respondent in respect of the said premises and a cheque of the aforesaid amount has been deposited by the respondent No. 1 to the said authority. The writ petitioners without prejudice to their right sometime on 28.2.96 have filed an application under section 18 of the Land Acquisition Act objecting to the amount as covered by the award passed by the Collector. The same having been filed, it becomes doubtful as to
whether it is open to the petitioners to object to the validity of the acquisition proceeding as section 18 is limited to the objection about the adequacy of the amount of compensation mentioned in the award. It is abundantly clear that some urgency has arisen for perpetuation of possession covered by the proposed acquisition on an urgent basis as a sequel to a protracted legal proceeding. In view of the materials there before the authority it cannot be denied that it is a case of no materials about formation of opinion on the part of the appropriate authority about urgency. The adequacy of materials and the propriety of inference drawn by the appropriate authority is not open to be assailed in Writ Jurisdiction in view of the decisions referred to earlier as indicated by the apex court.
4. A further reference may be made to the case of Chameli Slngh & Others v. State of U.P. & Another and the observations made by the apex court in para 14 of the said Judgment are relevant for the purpose of analysis of the present controversy. Accordingly, the said paragraph 14 of the judgment is quoted hereunder:–
“The question, therefore, is whether invocation of urgency clause under section 174 dispensing with inquiry under section 5A is arbitrary or is unwarranted for providing housing construction for the poor. In AJlatoon v. Lt. Governor, Delhi a Constitution Bench of this court had upheld the exercise of the power by the State under section 17(4) dispensing with the inquiry under section 5A for the planned development of Delhi. In Smt. Pista Devl’s case , this court while considering the legality of the exercise of the power under section 17(4) exercised by the State Government dispensing with the inquiry under section 5A for acquiring housing accommodation for planned development of Meerut, had held that providing housing accommodation is national urgency of which court should take judicial notice. The pre-notification and post-notification delay caused by the concerned officer does not create a cause to hold that there is no urgency. Housing conditions of Dallts all over the country continue to be miserable even till day is a fact of which courts are bound to take judicial notice. The ratio of Deepak Pahwa’s case (supra) was followed. In that case a three judge Bench of this court had upheld that notification issued under section 17(4), even though lapse of time of 8 years had occurred due to inter-Departmental discussions before receiving the notification. That itself was considered to be a ground to invoke urgency clause. It was further held that delay on the part of the lethargic officials to take further action in the matter of acquisition was not sufficient to nullify the urgency which existed at the time of the issuance of the notification and to hold that there was never any urgency. In Joge Ram v. State of Haryana this court upheld the exercise of the power of urgency under section 17(4) and held that the lethargy on the part of the officers at an early stage was not relevant to decide whether on the day of the notification there was urgency or not. Conclusion of the Government that there was urgency, though not conclusive, is entitled to create weight. In Deepak Pahwa’s case (AIR 1984 SC 2025} this court had held that very often persons interested in the land proposed to be acquired may make representations to the concerned authorities against the proposed writ petition that is bound
to result fn multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often delay makes the problem more and more acute an increases urgency of the necessity for acquisition. Rajasthan Housing Board v. Shri Kisham this court had held that it must be remembered that the satisfaction under section 17(4) is subjective one and that so long as there is material upon which Government could have formed the said satisfaction fairly, the court would not interfere nor would it examine the material as an appellate authority. In State of U.P. v. Keshav Prasad Singh this court had held that the Government was entitled to exercise the power under section 17(4) invoking urgency clause and to dispense with inquiry under section 5A when the urgency was noticed on the facts available on record. In Narayan Goutrtd Gauate’s case (supra) a three Judges Bench of this court had held that section 17(4) cannot be read in isolation from section 4(1) and section 5A of the Act. Although 30 days from the notification under section 4(1) are given for filing objections under section 5A inquiry thereunder unduly gets prolonged. It is difficult to see why the summary inquiry could not be completed quite expedi-tlously. Nonetheless, this court held the existence of prima facie public purpose such as the one present in those cases before the court, could not be successfully challenged at all by the objectors. It further held that it was open to the authority to take summary inquiry under section 5A and to complete inquiry very expedltlously. It was emphasised that:
“…The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under section 5A of the Act should be eliminated. It is not Just the existence of an urgency but the need to dispense with an inquiry under section 50A which has to be considered.”
5. In every acquisition by its very compulsory nature for public purpose the owner may be deprived of the property, the means of livelihood. The State in exercise of its powers of eminent domain for public purpose so long as the exercise of the power is for public purpose, the individual’s right of an owner must yield place to the larger public purpose.
6. It is clear from the notification published in Calcutta Gazette on 5.8.94, public purpose has been described as for providing permanent accommodation for the unit of Cottage and Small Scale industries, Bangashree also for West Bengal Ceramic Development Corporation in the premises in question. There is no iota of doubt that the requirement for the aforesaid purpose as contained in the notification under reference as published in the Calcutta Gazette ex facie bespeaks itself for public purpose which has been delineated in the notification itself and as a sequel to that the declaration dated 14.6.96 was published in the Calcutta Gazette issue of 18.7.95. It is no use referring to the catena of decisions as it is well-known proposition in law that for public purpose as contemplated under section 4(1), notification can be issued in the official gazette and as such it is settled position that Government would be best authority to determine whether the purpose in question is a public purpose or not. It is well-known that public purpose is an elastic concept having no rigid meaning. The
concept varies at time, state of society and its needs. There are galore of cases on the concept of public purpose starting from the case of Somawanti v. State of Punjab, . The notification under section 6 of the Land Acquisition Act is conclusive that for the purpose of that land is needed for ‘public purpose’ so far as section 4 of the Evidence Act is concerned. It is well recognised that existing purpose is not bar for acquisition for fresh public purpose as laid down is the case of Syed Abdul Caffar v. State of West Bengal, reported in 73CWN, 649. There is no manner of doubt that perpetuation of existing purpose appears to be a public purpose in the estimation of the concerned authorities of the State.
7. There is another objection raised on behalf of the writ petitioners that in terms of the provisions of section 17(3A) of the Land Acquisition Act. before taking of possession a certain percentage of compensation has to be paid. From the perusal of the Scheme of section 17 of the Act it appears that secdon 17(3) of section 17(3A) will come into ptay when it is preceded by sudden dispossession. Here, in this case, there is no. question of dispossession accruing suddenly to the detriment of the writ petitioners as possession has been with the State respondent for long in different capacities. Unless dispossession is sudden resulting in damages to the owner or the occupier of the property. It is not clear as to whether the question of payment of compensation in terms of the aforesaid provisions of section 17(3) or section 17(3A) will arise. Section 17(4) as engrafted altogether belongs to a separate form of species which is unrelated to other provisions of section 17, namely, from section 17(1) onwards upto the beginning of section 17(4). Section 17(4) has only restricted applications to dispense section 5A of the Land Acquisition Act and as such though section 17(4) is related to section 17(1) to all the sub-sections under section 17 but section 17(4) is only directly linked up with dispensation of section 5A and as such it has an independent limb of its own. In that view of the matter, this court does not feel impressed that the respondents can be pinned down with duly of application of procedural formalities as laid down in the relevant section. If section 17(4) is construed to be founded on an independent limb, furthermore. In view of submissions of the writ petitioners to the reference under section 18 of the Land Acquisition Act, their rights, if at all any, must be deemed to have been treated to have been abandoned when the writ petitioners have objected to the amount mentioned in the award which is only within the limited scope of reference under section 18. then preceding Chapter relating to acquisition must be treated to be close. A new Chapter is unfurled with reference to the award under section 18. It is not necessary to mention that section 12 of the Land Acquisition Act indicates when the award of the Collector shall be final. After the curtain is dropped on the finality of acquisition and new phase is opened by way of requirements with regard to the dispute about the quantum of the award, then, the petitioners cannot be permitted to re-open the question of validity of the acquisition. The writ petition accordingly stands dismissed on contest for the reasons as indicated hereinbefore. There shall, however, be no order as to costs.
8. Petition dismissed