Case: Kolkata Metropolitan Development Authority Vs. Pradip Kumar Ghosh and Ors

1. Aggrieved by the quashing of land acquisition proceedings initiated under the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as the Act) notice Under Section 4(1)(a) was published in the Gazette on 14.10.1996 and also notice Under Section 5 of the Act. The property in question had been requisitioned under the provisions of the Act by the issuance of notification Under Section 3(1) since requisition continued for long for 14 years. It was questioned by filing a writ petition i.e. CR 15177 (W) of 1979 disposed of on 10.9.1993. The High Court of Calcutta did not quash the notification issued Under Section 3(1), passed an order directing the concerned authorities to acquire the properties in question if so desired within a period of 6 months from the date of communication of order and if the authorities did not acquire the property within the time specified the Land Acquisition Collector was directed to release the property under requisition and restore possession of the same to the writ Petitioner.2. Thereafter there was some delay in initiating the land acquisition proceedings. The notification Under Section 4(1)(a) of the Act had been issued on 14.10.1996 for the acquisition of premises No. 11, Sarat Bose Road, Kolkata. Questioning the same, fresh petition-Writ Petition No. 4361 (W) of 1997 was filed. Award was passed determining the compensation in a sum of Rs. 7,69,950/-. The writ petition was dismissed by the Single Bench vide order dated 11.3.1998. It was held by the Single Bench that in case the order dated 10.9.1993 was not complied, by the concerned authorities they would be liable for contempt of court and may be dealt with in accordance with law in the contempt proceedings, but the mere fact that possession of the property was not restored, in view of the order passed on 10.9.1993 the same would not disentitle the authority in taking steps for acquisition of the property.3. As against dismissal of the writ petition, appeal MAT No. 1165/1998 had been preferred before the Division Bench. The Division Bench has allowed the same vide impugned judgment and order. The Government of West Bengal had conveyed the property by registered deed of conveyance on 21.12.2004 to Kolkata Metropolitan Development Authority for development. A Division Bench of the High Court has allowed the appeal. It was held that requisition Under Section 3(1) of the Act deemed to have been lapsed, as such the acquisition was illegal. Aggrieved thereby the appeal has been preferred by the Kolkata Metropolitan Development Authority.

Reasoning: It is apparent from the aforesaid provisions that the property that is under requisition can only be acquired. Requisition is a sine qua non for a property as on the date when notification Under Section 4 is issued. Section 3 had been omitted w.e.f. 1.4.1994. However the property was requisitioned before the provision was omitted.11. Sections 3 and 4 of the Act are relevantIt is apparent that Section 6 requires an order to be passed by the State Government for release of the property from requisition. Government has to conduct an inquiry if any, considered necessary then the release order has to be passed and possession of the property has to be delivered Under Section 6. Section 6(2) also provides that even if possession has been delivered pursuant to a release order, the same shall not prejudice any right in respect of such land, if any other person may be entitled by due process of law to enforce against the person to whom possession of land was delivered.13. The High Court in the instant case has not directed delivery of possession and possession had not been handed over. Thus by virtue of the provisions contained in Section 6, until and unless release order is passed and delivery of possession pursuant thereto takes place, the requisition would continue.There is no dispute with the proposition laid down in Comptroller and Auditor-General of India (supra) and Andi Mukta Sadguru (supra) that mandamus can be issued for doing the positive act or a legal duty cast upon an authority.The Supreme Court laid down in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. (2002) 4 SCC 638  , that no further mandamus could have been issued for release of payment in implementation of its earlier order. Once the decision on which it was based that is Venkatagiri case stood wiped off thus the mandamus became unenforceable. The Court further held that if the law which was declared invalid by the High Court is held constitutionally valid, effective and binding by the Supreme Court, then the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The mandamus would not survive in favour of those parties against whom appeals were not filed. This Court examined the question whether while issuing a mandamus, the earlier judgment notwithstanding having been held to be rendered ineffective, can still be held to be operative. This Court in Director of Settlements v. M.R. Apparao (supra) observed:In other words, the judgment of the Andhra Pradesh High Court in Venkatagiri case holding the Amendment Act to be constitutionally invalid, on being reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid, the said dictum would be valid throughout the country and for all persons, including the Respondents, even though the judgment in their favour had not been assailed. It would in fact lead to an anomalous situation, if in the case of the Respondents, the earlier conclusion that the Amendment Act is constitutionally invalid is allowed to operate notwithstanding the reversal of that conclusion in Venkatagiri case and only in Venkatagiri case or where the parties have never approached the Court to hold that the same is constitutionally valid. This being the position, notwithstanding the enunciation of the principle of res judicata and its applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the Respondents on the basis of the judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have uniformity of the law and to have universal application of the law laid down by this Court in Venkatagiri case it would be reasonable to hold that the so-called direction in favour of the Respondents became futile inasmuch as the direction was on the basis that the Amendment Act is constitutionally invalid, the moment the Supreme Court holds the Act to be constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the Respondents could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri case.19. This Court has laid down that the High Court erred in issuing mandamus in respect of a right which ceased to exist and was not available on the date on which mandamus had been issued afresh. In our opinion to enforce an order it should be effective on date mandamus is sought to be enforced. It can be interdicted by another order or by statutory intervention.29. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity.Firstly the court had not quashed the order of requisition. Apart from that, the court has not ordered that on lapse of 6 months period granted for acquisition and further period of 6 months property shall stand derequisitioned. The direction was issued to the L.A.C. to release the property in question from requisition. It was not an automatic consequence of the command issued. Thus if the property had not been released Under Section 6 of the Act obviously the requisition continued and statutory power of acquisition could have been exercised.24. In the instant case as the High Court has not quashed the notification Under Section 3 and till derequisition was actually made, once statutory power had been exercised Under Section 4 which could be exercised when requisition continues and that as a matter of fact, continued as the court had not culled out the consequence, there was no automatic consequence of the derequisition on lapse of specified time. Proceedings Under Section 6 were required to be undertaken. No order of release was passed. Requisition continued until the date of acquisition notification and there was no time limit for initiating acquisition under the Act. The statutory provision would not be stultified by the command so issued by the High Court in view of the decision of this Court in Jacob (supra). Though, Single Judge has opined that considering the order, it would be a case of violation of the order to be dealt with under the Contempt of Courts Act. However, in our opinion, when statutory provision had been invoked for acquisition, there is no question of applicability of contempt of court also as laid down in Jacob (supra).23. In General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob s/o Kochuvarkey Kalliath (dead) by L.Rs. and Ors. (2003) 9 SCC 662     this Court considered the question of issuance of direction by the High Court to complete acquisition proceedings and pass an award within a specified period with a view to avoiding further delay. This Court held that it would not disable the authorities to exercise power Under Section 11-A where under a longer period was available for passing an award. This Court also held that direction or order couldnt be read to stultify any authority from exercising its powers under the statute or deprives a statutory provision of its enforceability. This Court also considered the question of limitations of mandamus and also issue of liability under the Contempt of Courts Act, and held that there was no violation of either in exercise of statutory powers despite court order. This Court observed:7. As for the plea raised on behalf of the Respondents that since the Court directed the passing of the award by 3-9-1992 which time was subsequently extended up to 3-12-1992, irrespective of the provisions contained in the Act or for that matter even if what was said by the Court was right or wrong, the order passed by the Court was very much binding inter partes and the Appellant could not have legitimately passed an award at any time beyond 3-12-1992. Strong reliance has been placed upon the decision reported in N. Narasimhaiah (1996) 3 SCC 88.   This was a case wherein the exercise of power Under Section 17(4) dispensing with enquiry Under Section 5-A was quashed by the High Court and liberty was given to the State to proceed further in accordance with law i.e. to conduct the enquiry Under Section 5-A and if the Government forms an opinion that the land is required for a public purpose, issue a fresh declaration Under Section 6. The question, which loomed large for consideration, was as to whether the limitation prescribed under Clause (ii) of the first proviso to Sub-section (1) would still remain operative and be capable of being complied with. This Court observed that running of the limitation should be counted from the date of the order of the court received by the Land Acquisition Officer and declaration is to be published within one year from that date. This was for the reason that the Court having quashed the earlier declaration Under Section 6 when directed an enquiry Under Section 5-A to be conducted and to proceed afresh from that stage, the limitation prescribed for issuing Section 6 declaration would apply to the publication of declaration Under Section 6(1) afresh and to be complied with from the date of receipt of a copy of the order of the Court. This decision is of no assistance whatsoever to the Respondents in the present case. Notwithstanding the statutory period fixed, further time came to be granted due to intervention of court proceedings in which a direction came to be issued to proceed in the matter afresh, as directed by the Court, apparently applying the well-settled legal maximactus curiae neminemgravabit: an act of the court shall prejudice no man. In substance what was done therein was to necessitate afresh calculation of the statutory period from the date of receipt of the copy of the order of the court. Granting of further time than the one stipulated in law in a given case as a sequel to the decision to carry out the dictates of the court afresh is not the same as curtailing the statutory period of time to stultify an action otherwise permissible or allowed in law. Consequently, no inspiration can be drawn by the Respondents in this case on the analogy of the said decision.8. Reliance placed on the decision reported in M.M. Krishnamurthy Chetty (1998) 9 SCC 138     is equally inappropriate and ill-conceived. That was a case wherein a learned Judge of the High Court, while setting aside the order passed by the statutory authorities under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961, remanded the case for fresh consideration specifically in the light of an earlier judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer 84 MLW 69. While the remand proceedings were pending before the authorised officer, this Court reversed the aforesaid judgment in Authorised Officer v. S. Naganatha Ayyar (1979) 3 SCC 466     and the authorised officer decided the ceiling limit in the remit proceedings in terms of the decision of this Court and not as per the directions of the High Court to determine the same in the light of the earlier High Court judgment. It was held in that case that the order of the High Court directing the authorised officer to examine the dispute in the light of the earlier High Court decision reported in Naganatha (supra) having become final in the absence of any challenge thereto despite the reversal of the earlier High Court judgment by this Court, this Court observed that even orders which may not be strictly legal become final and are binding on the parties if they are not challenged before the superior courts. This Court, while rendering the said decision, was concerned with a direction of the High Court to do a particular thing in a particular manner and unless the binding judgment between parties was set at naught to enable the authority to do it in any other way, it had to be done in a particular manner so directed by the Court or not at all. So far as the case on hand is concerned, since the Court in the earlier proceedings had intervened at the instance of the Respondents the Court was directing the authorities concerned to complete the process within a particular time to avoid further delay and ensure expeditious conclusion of the proceedings. There is nothing to indicate in the order of the High Court stipulating or extending the time for passing the award, that beyond the time so permitted, it cannot be done at all and the authorities are disabled once and for all even to proceed in the matter in accordance with law, if it is so permissible for the authorities under the law governing the matter in issue. The Court cannot be imputed with such an intention to stifle the authorities from exercising powers vested with them under statute or to have rendered an otherwise enforceable statutory provision, a mere dead letter. Neither from the nature and purport of the earlier orders passed nor from their contents, is there any scope for inferring the imposition of a total embargo upon the competent authorities, to exercise the statutory powers indisputably vested with and available to such authorities under the statute, at the time of such exercise.25. Reliance has been placed on Patasi Devi v. State of Haryana (2012) 9 SCC 503     that it was a colourable exercise of power. In the said case this Court found that the acquisition was made in order to oblige the colonizer that was not for a public purpose. The facts are different in the instant case. The property had been acquired for the purpose of systematic development of Calcutta and the same has been handed over to Kolkata Metropolitan Development Corporation for the said purpose. Thus it could not be said that there was colourable exercise of power in the instant case.26. It was also submitted on behalf of Respondents that even if the order is void, it is required to be so declared by the competent forum.It is not permissible to ignore it.In the instant case ratio of the aforesaid dictum is not applicable and it is not the case that the order was void but statutory power has been exercised and considering the nature of command that has been issued in the previous order dated 10.9.1993, the decision in Krishnadevi (supra) is not attracted to the case.There is no question of applicability of res judicata in the instant case. As statutory power has been exercised the statutory action is not stifled by the order of the court. It was stated that the land was proposed to be sold but the Appellants had made it clear that they are not going to sell the property. This Court had held in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996) 11 SCC 501     where the land has been acquired for public purpose may be used for another public purpose; diversion to private purpose is only interdicted.28. In view of the aforesaid discussion, we find that the Division Bench of the High Court has erred in law in quashing the acquisition.