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High Court of Calcutta
K.J. Sengupta & Md. Abdul Ghani, JJ.
State of West Bengal – Appellant
Versus
Micheal Regionald Simon De'souza – Respondent
F.M.A. No. 20 of 1999
Decided On: Feb 04, 2010
LAND ACQUISITION - REQUISITION - CONTINUANCE - PUBLIC PURPOSE - ACQUISITION PROCEEDINGS - CHALLENGE - ESTOPPEL - VESTING OF TITLE - APPEAL - MAINTAINABILITY - REVIEW APPLICATION - DISMISSAL - MERGER DOCTRINE.
Fact of the Case:
The writ petition challenged the acquisition of a property under the Land Acquisition Act, 1894, on the ground that the property was requisitioned under the Defence of India Rules and was not derequisitioned before the acquisition proceedings were initiated. The writ petition was allowed by the Trial Court, and the State Government appealed.
Finding of the Court:
The Court held that the requisition of the property was done by the Provincial Government, not the Central Government, and, therefore, the State Government was competent to initiate acquisition proceedings under the Land Acquisition Act, 1894. The Court also held that the acquisition proceedings were not amenable to challenge after the declaration under section 6 of the Act had been published and the award had been passed. The Court further held that the appeal was maintainable even though a review application against the impugned judgment had been dismissed, as the dismissal of the review application did not merge the original judgment.
Issues: 1. Whether the requisition of the property was done by the Central Government or the Provincial Government? 2. Whether the State Government was competent to initiate acquisition proceedings under the Land Acquisition Act, 1894, in respect of a property that was requisitioned under the Defence of India Rules? 3. Whether the acquisition proceedings were amenable to challenge after the declaration under section 6 of the Act had been published and the award had been passed? 4. Whether the appeal was maintainable even though a review application against the impugned judgment had been dismissed?
Ratio Decidendi: 1. The Court held that the requisition of the property was done by the Provincial Government, not the Central Government, as evidenced by the requisition orders issued by the First Land Acquisition Collector, who was an official of the Provincial Government. 2. The Court held that the State Government was competent to initiate acquisition proceedings under the Land Acquisition Act, 1894, in respect of a property that was requisitioned under the Defence of India Rules, as the requisition was done by the Provincial Government and not the Central Government. 3. The Court held that the acquisition proceedings were not amenable to challenge after the declaration under section 6 of the Act had been published and the award had been passed, as the declaration was conclusive evidence of the public purpose of the acquisition and the award vested the title to the property in the State. 4. The Court held that the appeal was maintainable even though a review application against the impugned judgment had been dismissed, as the dismissal of the review application did not merge the original judgment, and the right of appeal was independent of the right of review.
Final Decision: The Court allowed the appeal, set aside the judgment of the Trial Court, and directed the Land Acquisition Judge to proceed with the acquisition proceedings expeditiously.
K.J. Sengupta, J.
1. THIS appeal was against judgment and order of learned Single Judge dated 11th October, 1996 whereby and where under the land acquisition proceeding under the Act 1 of 1894 was quashed and also directed de-requisition of the property in question and to hand over possession of the same to the writ petitioner within the stipulated time mentioned therein. However, liberty had been given to the State to initiate fresh acquisition proceeding if necessary in accordance with law after de- requisition and making over possession of the said land.
2. THE short fact leading to filing of the writ petition as above and also preferring the appeal is set out hereunder.
On 1st April, 1942 the First Land Acquisition Collector Government of West Bengal passed an order in exercise of the power under Rule 75A of the Defence of India Rules, framed under section 2(5) of the Defence of India Act, 1939 whereby and where under the 3rd, 4th and 5th floor of premises No. 10, Madan Street, Calcutta 700 012 (here in after referred to as the said premises). There after, on or about 10th January, 1943 1st, 2nd and 4th floor of the said premises was requisitioned and the same was allotted to Air Raid Personnel. Thus on or about 10th January, 1943 requisition of the said premises in its entirety was completed. On 6th February, 1947, there had been an agreement for rent compensation between the Governor for the Province of Bengal and the owner of the premises, for payment and the said rent compensation under the agreement, was to be paid by the Revenue Department of the Provincial Government. The said Requisition of Land (Continuance of Powers) Act under D.I. Act continued till 1947. On 1st April, 1951 the Requisitioned Land (Continuance of Powers) Amendment Act, 1951 came into force and the requisition already done under the D.I. Rules was to continue so far as it relates to land requisitioned by and under the authority of the Central Government. On 24th April, 1953 the State Government informed the owner in question that the requisition would continue. On or about 14th April, 1946 the writ petitioner approached the State Government for release of the said premises however, on refusal of the State the owner filed writ petition on 19th August, 1973 for de-requisition of the same unsuccessfully. In the writ petition, it was one of the prayers that the requisition be declared null and void. In 1973 an appeal was preferred against the said judgment and order dismissing the writ petition however, the said appeal was withdrawn by the writ petitioners.
3. AFTER the factual development as aforesaid on 19th July, 1972 Finance (Taxation Department) had required the Government to acquire the said premises. On 18th January, 1974 notice under section 4 of the Land Acquisition Act, 1894 was published in Calcutta Gazette and objection was filed by the owners viz. writ petitioners against the said acquisition on 29th May, 1974. AFTER considering objection the declaration under section 6 of the said Act was published on 10th June, 1975 thereby it was declared that the said premises was needed for public purpose. The owner of the property filed claim for compensation before the L.A. Collector on 15th February, 1976 and after issuance of notices under sections 9(3) and (4) of the Act 1 of 1894 and after hearing, the award was made on 12th February, 1979 assessing compensation of Rs. 11,20,721.00/-. On 26th March, 1979 being dissatisfied with the quantum of the award the writ petitioner made reference to the Collector under section 18 of the said Act for adjudication of the legitimate amount of compensation to the Land Acquisition Judge. The compensation amount of the award of Rs. 11,30,971/- was deposited with the Reserve Bank of India on 4th April, 1979. On 10th May, 1979 notice was issued to take possession of the said premises formally. On 18th May, 1979 writ petitioner purported to file written undertaking to give vacant possession of all the four
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