Bengal Housing Board Vs.
Bhanwar Lal Mundhra & Ors  INSC 578 (9 July 1997)
RAMASWAMY, D.P. WADHWA
appeal is directed against the judgment dated June 7, 1996 of a Division Bench of the Calcutta High Court, which
judgment was passed in appeal against the judgmentdated April 18. 1994 of the
learned Single Jundge allowing the writ petition of the first respondent.;
however the second round of litigation between the parties.
respondent who was the petitioner sought caushing of the arlier order dated
December 21. 1981 passed by the Collector and Additional Distric Magistrae,
Highly under Section 3(1) of the West Bengal Land (Recuisition and Acquisition)
Act, 1948 (for short the Act) requesitioning 0.63 acres of land of that patitioner
bearing plot No. 1790 Mouza Monoharour. J.L. No. 98 in the district of Hooghly.
terms of this order the possession of the land was taken over on January 7.
1982. As a matter of fact hte order of requisition pertained to 21.41 acres of
land of various plot numbers which included the plot of the petitioner. The
report of the process server shows that the notice requisitioning the land was
served by means of affixation with seal and the sionatures of witnesses, by
going to the places mentioned int he orer requisitioning the land. The
petitioner filed the writ petition in the Calcutta High Court challenging the
order of requisition dated December 21 1981 on the ground that sussession of
the land was taken over without the service of the order on him which was the mandetory
requirement of law. By judgment dated February 23, 1983, the learned Judge of the High
Court disposed of the writ petition with the following order:
this writ application one of th egrievances of the writ petitioner is that
though he is the owner of the plot in question, the respondents are trying to
take possession of those lands in purported exercise of their powers under
Section 3(1) of the West Bengal land (Requisition and Acquisition) Act, 1948
without serving him with a notice of controverting the above contentionof thepetitioner
the respondents assert that the notice has duly been served upon the recorded
owner and is the petitioner was not the recorded owner he waws not served with
any notice. It however, appears that by a registered deal dated November 7, 1965 the petitioner purchased the plot
in question from the reconded owner and as such the petitioner is entitled to a
statutory notice under the Act. In such circumstances. I f\direct the
respondents to serve a copy of the notice of requisition upon the petitioner
and thereafter proceed in accordance with law. Let status quo in respect of theplot
in question in respect of theplot in question in respect of the plot in question
be maintained till such service of notice. Let it be recorded that I have not
decided any of the other points raised by the parties in support of their
respective contentions. Let is also be recorded that such service of notice
will not ipso facts give any right to the petitioner to calim any compensation
if the land is subsequently accuired.
the court directed maintenance of status quo possession of the land remained
with the State.
order of requisitioning was again seved on the petitioner by the order dated February 25, 1983 on said to hav ebeen received by thepetitioner
on March 24, 1983, On April 5. 1983 the petitioner
again filed another writ petition (C.R. No. 3210 (W) of 1983) in the Calcutta Hihg
Court challenging the order of requisition on three grounds, namely that (i) no
notice was served prior to taking over she possession of the land in question.
(ii) that there was a total non application of mind on the part of the
Collector in issuing the requisitioning notice and (iii) the purpose. This writ
petition was disposed of by judgment dated April 18, 1994 of the learned Single
Judge, as noted above, holding that no notice was served on the petitioner
before taking over the possession of the land in question and that there was no
application of mind on the part of the Collector in issuing the order requisiioning
the land that the purpose for which the equisition was made was not a public
meanwhile, however, by gazettee notification dated June 6, 1985 published on June 12, 1985 in the Calcutta
gazette ortraordinary issued under SEctor 4 of the Act the State Government
acquired all thelands including that of the petitioner which was subject matter
of requisition. The appellant West Bengal Housing Board filed an appeal before
the Division Bench of Calcutta High Court against the judgment dated April 18, 1994 of the learned singes Judge. This
appeal was dismissed by the impugned judgment dated June 7, 1996 on the limited ground that the order requisitioning the
land was not served upon the petitioner before taking over the possession which
was mandatory required under Section 3 of Act. It would appear the Division
Bench did not consider other two grounds on which writ petition had been
allowed by the learned single Judge.
at this stage set out the relevant provisions of law and the operative portion
of the orders requisitioning and then acquiring the land.
3 of the Act reads as under:
to requisition; (1) If the State Government is of the opinion that it is
necessary so to do for maintaining supplied and services assential to the life
of the community (or for increasing employmers tunities for the people by astablishing
commercial estates and industrial) estates in dirrerent areas) or for providing
proper faciliteis for transport, communication, irrigation or cranagu, or for
the creation of better licing conditions in rural or urar, areas, not being an indusrail
or other areas excluded by the State Government by a notification in this
behalf, by the construction or re construction of dwelling places in such areas
9 or for purposes connected therewith or incidental thereto), the State
Government may, by order in writing, requsition any land and may make such
further orders as appear to it to as necessary or expedient in connection with
that no land used for purpose of religious worship or used by an educational or
charitable institution shal be requisitioned under this section.
Collector of a district, (an Additional District Magitrate or the First Land
Acquisition Collector. Calutta) whe authorised by the State Government in this
behalf, may exercise within his jurisdiction the powers conferred by
order under sub-section (1) shall be served in the prescribed manner on theowner
of the land and where the order relates to land in occupation (of an occupier,
not being the owner of the land, also on such occupier).
any person falls to comngly with an order made under sub- section (1) the
Collector or any person authorised by him in writing in this behalf shall
execute the order in such manner as be considers expedient and may.- (a) If he
is Magistrate, enforce the dilivery of possession of the land in respect of
which the order has been made to himself, or (b) If he is not a Magistrate,
apply to a Magistrate or, in Calcutta ad defined in clause (11) of Section 5 of
the Calcutta Municipal Act 1951, to the Commissioner of OLICE
Acquisition of land - (1) where any land has been requisitioned under SEction
3, the State Government may use or deal with such land for any of the purposes
referred to in sub-section (1) of Section 3 as may appear to it to be expedient
(1a) The State Governemnt may acquire any land requisitioned under Section 3 by
publishing a notice in the Official Gatette that such land is required for a
public purpose referred to in sub-section (1) of Section 3.
Where a notice as aforesaid is published in the Official Gazette, the requisitiond
ladn shall, on and from the beginning of the day on which the notice is so
published, vest absolutely in the (State Government free from all incombrancas
and teh period of requsition of such land shall end." Rule 3 of West Bengal land (Requisition &
Acquisitions, Rules, 1948 deals with manner of service of orders and is a
Manner of Service of Orders - An order under sub-section (1) of section I shall
be served on the owner of the land and where the order relates to land in
occupation of an occupier not being the owner of the land, aldo on such
delivering or tendering a copy therefore, endorsed either by the person authorised
by the Act to make the order or by the Collector, to the person on whom the
order is to be served or his agent. or (b) by fixing a copy thereof or the
outer door of soe conspicuous part of the mouse is which the person on whom the
order is to be served ordinarily resides or carries on business or personally
works for pain, or (c) by sending the same to the person on whom the order is
to be served by registered post with acknowledgement due, or (d) by fixing a
copy thereof in some conspicuous part of the land to which the order relates
and also in some conspicuous place of the office or the Collector."
Extract of order under Section 3 of the Act, "Wereas in mv opinion it is
necessary for the purpose of maintaning supplies and services essential to the
life of the community/providing proper facilities for
transport/communication/irrigation/ drainage vir, for imolementation of the
housing project at Monoharour to requisition th land (s) described in the
whereas State Government has by notification No.20500 L A dated 3.12.63
published in the Calcutta Gazette Part I of the 26th December, 1963, at page
2578 authorised me toexercise the powe conferred by sub-section (1A) of Section
3 of the West Bengal Land (Requisition and Acquisition0 Act. 1948 (West Bengal
Act II of 1948).
therefore, in exercise of the power conferred by sub-section (1A) of Section 3
of the West Bengal Land (Requisition and Acquisition) Act.
1948 West Bengal Act II of 1948 read with the authority so vested in me as
aforesaid 1 do hereby requisition the land's mentioned in the schedule below overlead
and make the following further order namely.
that possession of the land will be taken on 7.1.82 at 1 p.m. will be taken on
7.1.82 at 1 p.m. and 2) that the owner/occupier/tenant of the said land shall
furnish me such information relating to said land as will be necessary from
time to time.' Extract from the gazette notification under Section 4 of the
Y No. 3528 L.A. (II) 4H- I/81 - 6th June 1985
- whereas 8.2216 hectares (20.34 acres). more or less. of land situate in the
village of Monoharour, described below, have been requisitioned under
sub-section (1) of Section 3 of the West Bengal (Requisition and Acquisition)
Act, 1948, by the person authorised under Section 3(1A) of the said Act for the
public purpose of creating better living condition in urban or rural areas by
construction and reconstruction of dwelling places in such are aor for purpose
connected therewith and incidental thereto, viz. for implementation of housing
therefore, notice is hereby given that in pursuance of section 4 of the said
Act the Governor acquires such land being required for a public purpose as
notice is given under the provisions of sub-section (1A) of Section 4 of the West Bengal Land (Requisition and Acquisition) Act.
(West Bengal Act II of 1949). to all whom it may concern.
of the land may be inspected in the office of the Collector, Hooghly." It would appear that neither
the State Government nor the Collector and Additional District Magistrate, Hoohly
appeared before the High Court. The writ petition was defended by the appellant
WEst Bengal Housing Board and on this ground, a prasumption was sought to be
raised that there was no application of mind by the parties in requisitioning
the land and that notice had not been property served in accorcance with Rule 3
before taking over possession of the land.
Bengal Housing Board has been consituted under the West Bengal Housing Board
Act, 1972. It is a body corporate having perpatual succession and a common seal
and my sue and be sued in its corporate name and shall be competent to acquire
and hold property both movable and immovable, anter into contract and do all
things necessary for the purposes of the Act. This Housing Board Act provides
as to how the Housing Board is to be constituted, prescribes power and duties
of the Housing Board and appointment of all its staff including the Housing
Commissioner etc. Under Section 17 of the Houding Board Act, the Housing Board
exercises powers, sibject to the provisions of that Act. It may ingur
expenditure and undertake works for the framing and execution of such housing
schemes as it may consider necessary and such housing schemes may include
housing schemes in relation to lands and buildings vested in or in the
possession of the State Government. The State Government may also entrust the Housing
Board the framing and executionof any Housing scheme, whether provided for by
the Act or not, and the Housing Board shall schemes and on such terms and
conditions the State Government may think fit to impose. SEction 18 of the
Housing Board Act provides matters to be taken into consideration for the
housing schemes. Under Section 29 of the Housing Board Act, the State
Government may transfer to the Housing Board on such terms and conditions as
may be prescribed such assets and liabilities of the State Government and
thereupon these stand vested and transferred to the Housing Board. It is not
necessary for us to state the various provisions of the Housing Board Act
except to say that the Housing Board it is a statutory body with the Minister incharge
of the housing department of the State Government as the Chairman of the
not disputed that the land in question was transferred to the Housing Board,
the appellant herein, by the state Government for execution and completion of
the housing scheme known as "Dankuni", in Mouza Monoharour in the
writ petition. It submitted that it was possessed of all the records of the
State Government as well as of the Collector and Additional District
Magistrate. Hooghly which were produced in court during
the course of hearing. In this view of the matter the appearance of the State
Government or the Collector-cum-Additional District Magistrate, Hooghly, need not have been insisted upon
and no adverse presumption could have been raised. Be that as it may when the
present special leave petition was filed liberty was granted to State
Government to file its counter.
pursuant to that an affidavit was filed by the Land Acquisition Officer under
the Collector, Hooghly. This affidavit has been filed on
the basis of the official record, It has been mentioned that on January 4, 1982
the order requisitioning the land was duly served under Section 3(2) of the Act
upon all the owners/occupiers of the lands as per the Records of Right
available with the Collector by affixing a copy thereof on the conspicuous part
of the land and the Collector's office in terms of Rule 3(d) of the Rules. It
is stated, it was only after due service of notice under Section 3(2) of the
Act read with Rule 3(d) of the Rules that possession of the land was taken. It
has also been stated that it was wrongly alleged on the part of the petitioner
that neithr the State nor the Collector filed any affidavit before the High
Court and that Mr. Tapas Kumar Chakraborty, Collector, hooghly duly swore an
affidavit on October 23, 1993 on behalf of the State Government and collector, hooghly.
The affidavit of the Land Acquisition Officer further states as under:
appeal was filed by the West Bengal Housing Board as it was the principal
aggrieved party as by that time a part of the housing project had been
completed and the land was required for the purpose of providing the residents
with an approach road to the hearby national highway.
land was essentially required for the purpose of setting up a merker complex
and for providing an access road to more than 5000 residents of the Dankuni
fact, the only road leading to the national highway passes through this plot of
land. This is an existing road and people and using this only road since the
inception of the project. Ifthe road is now closed, the project will be a
land-locked one and the residents will have no access to and from the project.
housing facilities in order to create better living conditions for the people
is a public purpose of great inportance and there was sufficient material befopre
the requisitioning authority to form an opinion under the Act. The requisition
was done by the Collector on behalf of the State Government and all the
necessary papers were available with the court. West Bengal Housing Board did
not construct "Dankuni" Housing Project with the motive of making
higher profit. By constructing the said project in a predominantly rural area,
housing board was only fulfilling its obligation under the Act towards creating
better living conditions for the people.
project has not vst been fully completed.
the residential flats have been constructed. The approach road and the marker
complex have to be provided to satisfy the essential requirements of more than
5000 residents of the housing complex.
further look a Dankuni Housing project may also be relevant. It is stated that
"Dankuni" is about 30 kms. away from the city of Clacutta and is well connected with road and
railway with the city of Calcutta. It si within the purview of both
urban and rural areas. The West bengal Housing Board took up the implementation
of housing project in the urban and rural areas of the State of West Bengal and
the Housing Board intended to implement housing complex in Dankuni at Mouza Monoharour
by construction about 1100 dwelling units for weaker section of the community
including a market complex, doctor's clinic, road, drainage etc.to cater to the
needs of about 6000 inhabitants living in the project. The State Government
granted approval to the Dankuni housing project and accordingly it was decided
to acquire land measuring 21.41 acres including the land suibject matter of
these proceedings. It is further submitted that from 1983 o 1994 during the pendency
of the writ petition in the High Court construction work started in phases.
There was different categories of flats viz., Higher Income Group (Upper)
Higher Income Group (lower), Middle Income Group and the lower income ground.
Flats which are earmarked for the income group of below Rs. 72,00/- per annum
cost Rs. 20,000/- to Rs. 18,000/- per annum cost Rs, 60,000/- flats for the
income group of Rs, 18,000 and above per annum cost Rs. 93,000/- and flats for
the income group of Rs. 30,000/- per annum to cost Rs. 1.80,000/-, wide
publicity had been given inviting applications from public for allotmetn of
flats and it is stated that 1000 flats had already constructed and possession
taken over by the allottees who are living there.
the learned single Judge decided the first writ petition he had directed
maintenance of status guo till service of notice requisitioning the land.
Thereafter notice requistioning the land was served upon the petitioner.
furtther was to be done as far as the State authorities were concerned as the
possession of the land had earlier been taken though the learned judge had
directed serving a copy of the notice of the requisitioning order upon the
petitioner and thereafter to proceed in accordance with law. As a matter of
fact what we find is that service of the hotice for requisitioning of the land
had already been earlier served on the petitioner as required under Section
3(2) of the Act read with Rule 3(d) of the Rules.
land was subsequently acquired under Section 4 of the Act. From the record it
could not be said that the land was not requisitioned and subsequently aquired
for any public purpose. Public purpse of construction of houses for weaker ection
is very much there. We fail to see if in the context of construction of houses
for weaker sections of society it can be said that public purpose stand
frustrated. Further, the Housing Board is not always enjoined to construct
houses for a particular section of scoeity. It is a matter commen knowledge
that there is an acute shortage of houses and to meet that end the Housing Boardes
in States have been constituted.
have examined impugned order requisitioning the land and also the pazette
notification acquiring the land and we are unable to concur with the view taken
by the High Court that notive had not been properly served or that there was no
application of mind on the part of the Collector in requisitioning the land or
that the purpose for which the requisition was made was not a public purpose.
Construction of approach road in the housing project, provision for market
complex, doctor's clinic, drainage ect. form part of the housing project and
cannot be considered in isotation.
is the public purpose for which the land in question had been requisitioned, a purpost
which in a public purpose.
also usefully refer to the judgment delivered by us today in batch of appeals
arising out of SLF (C) Nos. 12914/96 etc. etc, entitled West Bengal Housing
Board etc. vs. Brijendra Prasad Gupta & Ors. etc.
appeal is accordingly allowed, the judgments of the learned single Judge and
that of the Division Bench in appeal are set aside and the writ petition filed
by the first respondent is dismissed. There will be no order is to costs.