TMI Blog1997 (7) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... rth), West Bengal. This land belonged to one Chandra Kala Parasrampuria and Ranjana Kaushal and was recorded in their names in the revenue Record of Rights. Respondents 1 and 6 to 18 (for short the writ petitioners') purchased this land in the year 1988 and on or about February 15, 1990 they applied for mutation of the land in their names. Even after purchase of the land they had paid rent of the land in the name of Chandra Kala Parasrampuria and others, the original owners and were granted receipts in the names of the original owners. It is stated that it was on September 7, 1995 that a certificate of mutation had been issued by the prescribed authority under Section 50 of the West Bengal Land Reforms Act in favour of the writ petitioners. Their names also appeared in the revised settlement record where after they paid rent. We are mentioning this fact as it was contended that the application of the writ petitioners for mutation was ultimately allowed. The writ petition in the High Court itself came to be filed on March 27, 1995. Before we examine as to how the land came to be requisitioned and then acquired under provisions of the Act, we may set out the relevant provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the purpose referred to in sub-section (1) of Section 3 as may appear to it to be expedient. (1a) The State Government may acquire any land requisitioned under Section 3by publishing a notice in the Official Gazette that such land is required for a public purpose referred to in sub-section (1) ofSection 3. (2) Where a notice as aforesaid is published in the Official Gazette, the requisitioned land 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 incumbrances and the period of requisition of such land shall end. Rule 3 of the West Bengal Land (Requisition Acquisition Rules, 1948 deals with manner of service of orders and is an under: 3. Manner of Service of Orders - An order under sub-section (1) or section 3 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, also on such occupier. (a) by delivering or tendering a copy thereof, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land and thus entitled to notice. It was observed that the expression owner occurring in the said section must be given the meaning in which it is understood in common parlance and that there was no warrant for importing the provisions of the WB Land Reforms Act in construing the said expression. The Division Bench also observed that it was incumbent upon the authorities to make inquiries in order to ascertain who were the owners and that the authorities must be deemed to have constructive notice of the ownership of land by the writ petitioners by reason of registration of their respective sale deeds. It was thus held that non-service of such notice on the writ petitioners rendered the whole requisition order bad in law. The Division Bench further held that the purpose for which the requisition had been made, was not a public purpose within the meaning of the Act and that the circumstances of the case did not justify the invocation of the provisions of the Act which was intended for a special purpose and the exercise by the authorities of the powers under the Act was in fact a colourable exercise or power. The Bench further held that the Act did not even provide for the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orking of the Government offices it appears to have no place. Of course, the Collector could have asked for a report from the prescribed authority concerned if any application for mutation of the land was pending with him. But that would be expecting too much from the Collector. It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons. We are of the opinion the requirements of the law were met when notices were served upon the recorded owners as per Record of Rights. Again we do not think in a case like the present one, it is for the Collector to make enquiries from registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari (Smt.) and another vs. Amritsar Improvement Trust, Amritsar (1996 11 SCC 644) (infra) this Court observed that the public authorities were not expected to go on making enquiries in the Sub-Registrar's office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the Record of Rights as to who were owners of the land sought to be requisitioned and prudence did not require any further enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the principal Act should be construed as if the said section had not been omitted. The Act was further amended on October 8, 1996 by providing certain procedure for warding compensation etc. In any event these two amendments would have no application in the present case inasmuch as the notice of requisition under Section 3(1) of the Act was issued on April 2, 1992 and gazette notification for requisition of the land was published on July 22, 1994. It is submitted that the West Bengal Housing Board Act (for short `the Housing Board Act') was enacted on October 13, 1972 with a view to solve the acute problem of shortage of housing, which called for greater and quicker attention, Mr. Gupta, learned senior counsel appearing for the Housing Board submitted that it had not been possible for the State to make the desired expeditious progress in regard to the construction of houses because of inadequate resources and also because of the prevailing rules and procedures which was a time consuming process. He said the Housing Board was in a better position to undertake housing and allied projects on a much larger scale and would be able to secure adequate funds by raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27A power has been conferred on the Housing Board constituted under the Act to entrust existing of new joint sector company with housing schemes. This section 27A is as under: 27A. Power to entrust existing, of new, joint sector company with housing scheme. -- Notwithstanding anything contained in this Act, the Board may, if it considers PDS necessary so to do in the public interest and is s satisfied that an existing, or new, joint sector company is willing to comply, or has complied. with such terms and conditions as the State Government may think fit to impose, entrust, with the previous approval of the State Government, any existing, or new, joint sector company with any housing scheme for execution, and different existing, or new, joint sector companies may be so entrusted with different housing scheme for execution. It may be noted that under the Housing Board Act, Housing Board (or Board) has been constituted which is a body corporate having perpetual succession and a common seal and may sue and be used in the corporate name and shall be competent to acquire and hold property both movable and immovable, enter into contract and do all thing necessary for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Limited was incorporated as the existing joint sector company with 49.5% share-holding by each of the Housing Board and the Peerless General Finance Investment Co. Ltd. and one per cent by he State of West- Bengal. By the order and notification dated July 22, 1994 made under Section 4 of the Act, the State Government acquired the aforesaid 1.82 acres of land for construction of housing complex. The notification was duly published in the official gazette and on and from the said date the lands vested absolutely in the State Government under sub-section (2) of Section 4 of the Act. By a subsequent notification dated December 9, 1994 made under Section 29 (1) of the Housing Board Act the State Government transferred 11 acres of land which included land measuring 1.82 acres, subject matter of the present proceedings, to the Housing Board. Under Section 29(1) of the Housing Board Act, the State Government is empowered to transfer to the Housing Board all such assets and liabilities of the State Government as if may decide so to do which stand vested and transferred to the Housing Board. On March 29, 1995 formal permissive possession of 11 acres of land which had now included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in collaboration with the West Bengal Housing Board. On 3.9.93 State Government selected 4 private companies who were willing to form joint sector companies in collaboration with West Bengal Housing Board and out of the said 4 private companies, the Committee appointed for the said purpose by the State Government selected two companies one of them being Peerless General Finance and Investment Co. Ltd, and such selection was duly approved by the State Government. II. The joint sector company namely Bengal Peerless Housing Dev.Co. Ltd. is run by an independent Board of Directors. The Board of Directors consist of 7 (seven) Directors out of which 4 (four) Directors (two of them are Ex-Secretaries, Housing Department, Govt. of West Bengal and other two are Ex-Commissioners of Housing Board, who are still the Board members of West Bengal Housing Board) are nominated by the State Government. The Chairmen of the joint sector company is nominated by the State Government and thereby the State Government nominees are in the majority in the Board. III. The said joint sector company has the overall responsibility for the construction and implementation of the housing project which shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject. VI. It is submitted respectfully that the housing scheme which is now being implemented is predominantly and wholly for the benefit of the common people and preeminently for public purpose. VII. From the facts, it will thus clearly appear that the land for which the project is being constructed belongs to West Bengal Housing Board and the joint sector company have been entrusted only to implement the housing project of the Govt. of West Bengal and such work is being done as per the scheme framed under the West bengal Housing Board Act approved by the West Bengal Housing Board and under the overall guidance and control of the State Government/Housing Board. Funds for the construction have been provided for by Peerless General Finance and Investment Company Limited to the joint sector company and also recovered advances from the prospective allottees by dwelling units. The only financial contribution of the Government through Housing Board is to the acquisition of equity shares of the joint sector company to the extent of ₹ 10.0 lacs. The supplementary affidavit aforesaid also sets out the scheme of the Housing project and also the considerations which were tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any dwelling unit within he urban area of Calcutta from any other source because of high price of such flats which are beyond the reach of common people. Accordingly, sale price of the flats for the LIG MIG dwelling units were fixed at a rate as low as ₹ 349.00 and Rs. 509.00 per s.ft and market study reveals that in no other metropolis, even in Calcutta, flats are provided at this rate when market price of building materials have gone high beyond expectation. In this scheme 73% of such units are planned for this section of society. II. No price escalation shall be charged and flats are to be handed over at a fixed price and within the scheduled date. III. The prices of the flats are on the plinth area as per National Building Code and not on Super built-up area. IV. The construction work started in January, 1995 and substantial progress has been made so that all the flats can be handed over to the respective allottees on or before 1998 as promised. It is respectfully submitted that any scheme to solve the housing problem would promote a public purpose. Such a scheme need not be undertaken by the State directly but may well be implemented under the supervisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the authority proposes to recover betterment tax requiring such person to show cause within thirty days form the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made. The objection of the appellant in that case was that since his name was entered in the revenue record he had a right to the notice. It appeared when notice under sub- section (1) of Section 17 was issued the name of the appellant was not found entered in the assessment list of the local authority or in the land revenue register making him primarily responsible to pay land revenue. The Court observed that existence of the name of such person in the concerned record before publication of the notification under Section 17(1) was a condition precedent and the authority was not required to make a roving inquiry as to who is the person entitled to a notice. The Court agreed with the judgment of the karnataka High Court rejecting the contention of the appellant that the authority the contention of he appellant that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the chairman. In that case the disputed property was a vacant site and the appellant had purchased the same on January 24, 1985. Amritsar Improvement Trust had framed a scheme under Section 36 of the Act which was given due publicity and objections invited. Thereafter proceedings were taken up for acquisition of the land proposed to be acquired under the scheme. The scheme was approved by the Government on March 19, 1985. After the purchase was made by the appellant his name was not mutated in the records of the Municipality and the question before the Suoreme Court was whether the failure to serve the notice on the appellant vitiated the approved scheme. Facts are not quite clear from the judgment as to whom notice had been served but one can safely assume that in had been served on the person who was the erstwhile owner of the property before it was purchased by the appellant. The Court held that in these circumstances failure to serve notice on the appellant did not vitiate the approved scheme. The Court also observed that the principle that the registration of sale was constructive notice had no application to such a situation. The court on the argument of he appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely by the High Court or the Supreme Court, Regarding the necessity for requisitioning it must necessarily be left to the State Government. It is true that there is no express provision to make a representation against an order of requisition but there is no bar to a representation being made after an order is served under s. 3(2) of the Act. In H.D. Vora vs. State of Maharashtra and others. (AIR 1984 SC 866) relying on the earlier judgment of the Court in State of Bombay vs. Bhanji Munji (1955 1 SCR 777: (AIR 1955 SC 41) which was a case under the Bombay Land Requisition Act, 1948, the Court observed that it was not necessary that the order of requisition must explicitly set out the public purpose for which it was made and that the only requirement of the law was that the requisitioning must be made for a public purpose and that so long as there was a public purpose for which an order of requisition was made, it would be valid, irrespective of whether such public purpose was recited in the order of requisition or not. But then the State Government has to show that the order of requisition was made for a public purpose and that necessary facts showing the public purpose for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary control. It is certainly a public purpose to provide houses to the community especially to poor people for whom the prices are beyond their means and they would otherwise be never able to acquire a house. What has been done in the present case is that the profit earned on sale of flats of HIG have been pumped into to subsidise the prices of the houses failing in LIG and in this there would certainly be element of profit both for the Housing Board as well as the private company in the joint venture for selling flats of HIG. We fail to see how public purpose is not being served in the present case. Court must shake off its myth that public purpose is served only if the State, or the Housing Board or the joint sector company does not earn any profit. There cannot be any better authority than the State or the statutory corporation to supervise or monitor the functions of the joint venture company. Courts will certainly step in if the public purpose is sought to be frustrated. In the present case Directors appointed by the Housing Board/State on the Board of Directors of he Joint Venture Company would certainly see that no run away profit is earned and that sale price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave to process by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity : see the speech of Lord Scarman in Reg. Secretary of State for the Environment, Ex parte Nottinghamshire County Council (1986) A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament power save in a case where it is obvious that the public body, consciously or unconsciously, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project Anupama by this joint sector company, in the given circumstances, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and conditions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Housing Board to get the housing project executed through a joint sector company is quite understandable. We also find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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