Full Judgment Text
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PETITIONER:
THE NAIHATI MUNICIPALITY AND ORS
Vs.
RESPONDENT:
CHINMOYEE MUKHERJEE AND ORS
DATE OF JUDGMENT: 06/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 359 1996 SCALE (6)1
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the Division Bench of the Calcutta High Court dated July
26, 1979 made in C.R. No.2030 (W) of 1978. The admitted
facts are that a resolution was passed by the appellant-
municipality for rehabilitation of the hawkers by acquiring
the land in question. By that date the municipality did not
have sufficient funds to meet the acquisition costs. As a
consequence, the hawkers, union was requested to contribute
the fund to meet acquisition costs. In furtherance thereof,
the hawkers union deposited with the municipality a sum of
Rs.3,90,000/- for the acquisition of the land. The said
amount was credited to the funds of the municipality.
Thereafter a reference made to the Government requesting to
acquire the land. In furtherance thereof, the Government
issued notification under Section 4(1) of the land
Acquisition Act 1874 (1 of 1894) (for short the Act’) on
August 1, 1974 and acquired the plots of land bearing Nos.
412 to 426,497, 2400 to 2407 admeasuring about 4.717
hectares of the land in the village Kantalpara, P.S. Nahati
Municipality. Declaration under Section 6 came to be
published on November 9, 1976. Both the notification and the
declaration came to be challenged in the writ petition.
The High Court concluded in its judgment that though
there was initial resolution passed by the municipality to
acquire the land there was no final resolution directing the
Commissioner to spend the money from the fund of the
municipality. The hawkers themselves deposited the money
with the municipal Corporation. The Government imposed a
condition that the said amount should be used only for the
purpose of acquisition of land for rehabilitation of the
hawkers. The appropriate provisions contained in the
Municipality Act have not been complied with. Under those
circumstances, there is no public purpose indeed for
acquiring the land. Accordingly, the declaration under
Section 6 came to be quashed. Thus this appeal by special
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leave.
We have been taken through the reasoning of the learned
Judges and have also heard contentions of the learned
counsel for the parties. We are of the view that High Court
was not right in its approach in dealing with the matter.
The rehabilitation of the hawkers by acquiring the land is
indisputably of the public purpose; otherwise it would he a
perpetual nuisance to the residents of the municipal area if
hawkers were permitted to hawk the goods on public pavement
obstructing the traffic flow in the city. Therefore it can,
by no stretch of imagination, considered that it is not a
public purpose. The question then is: whether the part or
whole of the compensation would come from the funds of the
local authority? The second proviso to sub-section (1) of
Section 6 deals that according to which no such declaration
shall be made unless the compensation to be awarded for such
property is to be paid by a Company or wholly or partly out
of public revenues or some funds controlled or managed by a
local authority, Indisputably municipality is a local
authority and to funds are controlled or managed by the
municipality. In view of the fact that at the relevant point
of time the municipality did not have necessary funds to
meet the cost of acquisition, they had requested hawkers’
union to contribute the money for the acquisition.
Consequentially, Rs. 3,90,000/- came to be handed over to
the Municipal Commissioner who had deposited the same into
the funds of the municipality. Thereby, the amount had
formed and fused into integral part of the municipal funds.
It is true that the Government had put restriction that the
said money would be used only for the public purpose. It
would be obvious that since municipality did not have the
required funds, the Government had imposed a condition that
the money contributed by the hawkers should be used only for
the purpose of cost of the acquisition apprehending that the
same may be directed to other purpose. The meat of the
matter is that after the deposit by the hawkers, they have
no right to withdraw the said amount which formed part of
the funds of the municipality. The High Court, therefore,
was not right in holding that the amount has not become part
of the funds managed or controlled by the local authority
within the meaning of second proviso of sub-section (1) of
Section 6.
The appeal is accordingly allowed. The order of the
High Court is set aside. The Writ Petition stands dismissed.
No costs.