State Of West Bengal & Ors vs Bireswar Dutta Estate Pvt. Ltd. & Ors

STATE OF WEST BENGAL & ORS. .......APPELLANTS

Versus

BIRESWAR DUTTA ESTATE PVT. LTD. & .....RESPONDENTS ORS.

O R D E R

Premises No.32A, Brabourne Road, Kolkata, which had

been requisitioned for housing the Headquarters of Traffic

Police Guard in the year 1958 was derequisitioned on

25.3.1992. The possession of the property continued with

the police department and it was proposed to be acquired

and Preliminary Notification dated 28.9.1994 was issued

under Section 4(1) of the Land Acquisition Act, 1894,

('Act' for short). The said acquisition proceedings lapsed

as the final declaration was not issued within one year.

Subsequently another preliminary notification dated

4.3.1996 was issued under section 4(1) of the Act. The said

notification was published in the State Gazette dated

25.3.1996. The notification was published in two

newspapers circulating in the locality on 9.3.1996 and

10.3.1996. As there was a misprint in the date of the

Gazette, an erratum notification was published in the

Calcutta Gazette on 1.4.1997. Public Notice of the

substance of the said notification was published in the

locality on 30.6.1997. The final declaration dated

11.8.1997 under Section 6 of the Act was published in the

Gazette on 12.8.1997.

2. Respondents 1 and 2, who are the owners of property

filed Civil Suit No.235 of 1996 in the Calcutta High Court

against the State of West Bengal on 22.8.1996 seeking

possession of the said property and mesne profits. In the

said Suit, the High Court issued an interim order dated

25.9.1997 directing the parties to maintain status quo as

on that date. Ultimately, the Suit was decreed by a

learned Single Judge of the High Court on 9.9.1998, with a

direction to the defendant in the suit to deliver

possession and declaring the final Notification gazetted

on 12.8.1997, issued under section 6 of the Act to be

invalid. The learned Single Judge held that the final

declaration published on 12.8.1997 was made after the

expiry of one year from the date of publication of the

preliminary notification and therefore it was invalid. The

State filed an appeal against the said judgment and in the

said appeal a Division Bench of the High Court granted

interim stay of the judgment dated 9.9.1998 of the learned

single Judge, on 15.2.1999. Ultimately, the Division Bench

allowed the appeal by judgment dated 29.7.1999 affirming

the finding that appellant was bound to deliver possession,

but however holding that the final declaration published on

12.8.1997 under Section 6 of the Act was valid. The

appellants issued a notice under section 9 and 10 of the

Act on 20.9.1999. The Award was made on 24.2.2000.

Possession of the premises was taken under section 16 of

the Act on 24.2.2003.

3. The acquisition was challenged by respondents 1 and 2

by filing a writ petition (W.P. No.1225 of 2000),

contending that (i) the final notification under section 6

of the Act made more than one year from the date of

publication of the preliminary notification was invalid;

and (ii) the acquisition had lapsed under section 11A of

the Act, as award was no made within two years of

publication of the declaration. A learned Single Judge, by

judgment dated 18.11.2002, dismissed the writ petition.

Respondents 1 and 2 filed an appeal before the appellate

Bench of the Calcutta High Court. The appellate Bench, by

the impugned judgment dated 2.9.2003, allowed the appeal on

the following two grounds: (i) The final declaration under

Section 6 of the Act was invalid, as it was published after

the expiry of one year from the date of publication of the

preliminary notification under Section 4(1) of the Act; and

(ii) The Award dated 24.2.2000 by the Land Acquisition

Officer was passed beyond a period of two years from the

date of the publication of the final declaration dated

11.8.1997 and consequently, the acquisition lapsed.

4. Feeling aggrieved the appellants have filed this

appeal by special leave. The appellants have challenged

both the findings of the Division Bench. Therefore, two

questions arise for our consideration.

(i) Whether the final declaration was made after the

expiry of one year from the date of publication of

preliminary notification?

(ii) Whether the Award was made beyond two years from the

date of the publication of the final declaration?

Re : Question (i)

5. Section 4(1) of the Act provides that whenever it

appears to the appropriate Government that land in any

locality is needed for any public purpose or for a company,

a notification to that effect shall be published in the

Official Gazette and in two daily newspapers circulating in

locality and the Collector shall cause public notice of the

substance of such notification to be given at convenient

places in the said locality, the last of the dates of such

publication and the giving of such public notice, being

referred to as date of the publication of the notification.

In this case the date of publication of the preliminary

notification would be 30.6.1997, as that was the date of

the public notice of the substance of the preliminary

notification given at convenient places in the locality,

and that was the last of the dates of publication and

public notice.

6. In view of the above, though the date of preliminary

notification is 4.3.1996 and was published in the Gazette

on 25.3.1996, as public notice of the substance of the said

notification was given in the locality only on 30.6.1997,

the date of publication of the notification for the

purpose of Section 4(1) of the Act, would be 30.6.1997 -

the date on which the public notice was given in the

locality. Final declaration was made on 12.8.1997 within

two months from the date of publication of the preliminary

notification. The contention that the final notification

was made beyond one year from the date of publication of

the preliminary notification is therefore, without basis.

7. The High Court proceeded on a wrong assumption that

the public notice of the substance of the preliminary

notification should be published in the locality within one

year from the date of publication in the Gazette. We find

that there is no such requirement under Section 4(1) of the

Act. Section 4(1) does not specify the period within which

public notice of the substance of the notification should

be put up in convenient places of the locality. The one

year period referred to in Section 6 of the Act is the

period within which the final declaration has to be made

from the date of publication of the preliminary

notification. Publication of the notification under section

4(1) of the Act is defined as the last of the three dates,

that is (i) publication in the Gazette, (ii) publication in

two newspapers, and (iii) public notice of the substance of

the notification in convenient places in the locality. If

there is a gap of more than one year from the date of

publication of preliminary notification in the Gazette and

issue of public notice of the substance of such

notification in the locality, it would not affect the

validity of the preliminary notification but will only

postpone the date of preliminary notification for other

purposes like determination of market value under section

23 of the Act. As 30.6.1997 is the date of publication of

the preliminary notification and not 4.3.1996, the first

ground on which the appellate Bench of the High Court has

invalidated the acquisition cannot be sustained.

Re : Question (ii)

8. It is not in dispute that the High Court had issued an

order of status quo in regard to the acquisition of land on

25.9.1997 and the said order of status quo came to an end

when the suit itself was decreed on 9.9.1998 in favour of

respondents 1 and 2. If the period between 25.9.1997 and

9.9.1998, during which the order of status quo was in

effect, is excluded, it is seen that the Award dated

24.2.2000 was made within two years from 12.8.1997 - the

date of publication of the final declaration. The total

period that elapsed between date of publication of

declaration and the date of award is 2 years 6 months and

12 days. The order of status quo was in force for a period

of 11 months and 14 days. If that period is deducted, we

find that the Award was made within 1 year 6 months and 28

days.

9. One incidental question that is raised by

respondents 1 and 2 is whether the order of status quo

could be considered to be an interim stay of proceedings to

be taken in pursuance of the declaration, for the purpose

of Section 11A of the Act. In this context we may refer to

the decision of the this Court in M. Ramalinga Thevar Vs.

State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court

held that if there is a stay of dispossession, that would

amount to stay of the declaration. This Court observed :

"As per the Explanation to Section 11-A of the Land Acquisition Act, 1894 the period of exclusion from the time is the period during which 'any action or proceedings' to be taken in pursuance of the said declaration is stayed. Undoubtedly, one of the actions contemplated pursuant to the declaration is

taking possession of the land, though such action is a post-award step in normal circumstances, in emergent circumstances it can as well be a pre-award step. Nonetheless, taking possession is one of the actions to be adopted as a follow-up measure pursuant to the declaration envisaged in Section 6 of the Act. The consequence mentioned in Section 11-A is a self- operating statutory process and, therefore, it can operate only when the conditions specified therein conjoin together. The consequence would step in only when there is fusion of all the conditions stipulated therein. If there is any stay regarding any of the actions to be taken pursuant to the declaration then the consequence of lapse would not happen."

10. The validity of the final declaration published

on 12.8.1997 was the subject matter of the civil suit for

possession of the property in question, filed by

respondents 1 and 2. As noticed above, the learned Single

Judge, while decreeing the said suit for possession, held

that the declaration gazetted on 12.8.1997 was invalid. The

appellate bench however upheld the validity of the said

declaration. In such a suit, when the High Court directed

status quo, it meant that respondents 1 and 2 as the

plaintiffs-owners and the State as the defendant, could not

do any act with reference to the property in question.

Apparently in view of the status quo order, the State did

not do any act or make the award in regard to the property

from 25.9.1997 till 9.9.1998, as it was prohibited from

making an award by the status quo order. Thus when there

was an order of status quo, for all purposes, the

appellants were prohibited from taking any further

proceedings in pursuance of the declaration in regard to

the property in question. Therefore, the said period of

status quo will have to be excluded, for calculating the

two years period under Section 11A of the Act. Therefore,

even the second ground on which the High Court found the

acquisition to be invalid cannot be sustained.

11. Consequently, the appeal is allowed, the order dated

2.9.2003 of the Division Bench of the High Court is set

aside and the order dated 18.11.2002 of learned single

Judge dismissing the writ petition of respondents 1 and 2

is upheld.

......................J. ( R.V. RAVEENDRAN )

New Delhi; ......................J. October 21, 2010. ( H.L. GOKHALE )