Calcutta High Court (Appellete Side)
Development Authority & Ors vs Hasibur Rahaman Sardar & Ors on 26 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
FMA 177 of 2024
With
IA No.: CAN 1 of 2024
The Special Secretary, Kolkata Metropolitan
Development Authority & Ors.
Vs.
Hasibur Rahaman Sardar & Ors.
With
COT 81 of 2024
With
IA No.: CAN 1 of 2024
The State of West Bengal & Ors.
Vs.
The Special Secretary, Kolkata Metropolitan
Development Authority & Ors.
For the Applicants : Mr. Kishore Dutta, Ld. Advocate General
Mr. Satyajit Talukder, Adv.
Mr. Arindam Chatterjee, Adv.
For the Private : Mr. Sakti Mukherje, Ld. Sr. Adv.
Respondent No. 1 Mr. Amit Kumar Pan, Adv.
Mr. Syed Julfikar Ali, Adv.
Mr. Shubrojyoti Mookherjee, Adv.
For the State : Mr. Rabindra Narayan Dutta, Adv.
Mr. Arkodoy Mukherjee, Adv.
Hearing Concluded on : June 19, 2025
Judgement on : June 26, 2025
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.06.26
16:47:10 +05'30'
2
DEBANGSU BASAK, J.:-
1. Appellants have assailed a judgment and order dated
December 1, 2023 passed in WPA 28121 of 2022. State of
West Bengal and its functionaries have preferred a cross
objection there to. Both have been heard analogous.
2. By the impugned judgment and order, learned Single
Judge has directed the Collector under the Land Acquisition
Act, 1894, Howrah to issue a formal order of derequisition in
respect of the plots in question in favour of the writ petitioner
within two months from the date of communication of the
judgment. State respondents have been granted opportunity
to initiate fresh acquisition proceedings in respect of the plots
within the timeframe of two months, in accordance with law.
3. Learned Advocate General appearing for the appellants
has contended that, an acquisition proceeding under the West
Bengal Land (Requisition and Acquisition) Act, 1948 being LA
Case No. LA-II/29/1 of 1986-87 was initiated for acquiring
land measuring 21.245 acres of mouza Pakuria comprising of
several plots including RS Plot Nos 845, 846 and 847.
4. Learned Advocate General has contended that, order
under Section 3(1) of the Act of 1948 was issued on May 23,
3
1988 and served upon the recorded owners/occupiers
including the vendors of the writ petitioner. Possession of the
land had been taken on May 22, 1988. Notification under
Section 4(1a) of the 1948 Act had been published in the
Calcutta Gazette extraordinary on December 14, 1989. Since,
the acquisition proceeding could not be completed within the
life time of the Act of 1948, the same had been switched over
to the Land Acquisition Act, 1894 by invoking the amended
provisions of Section 9(3) (A) and (B) of the Act of 1894. Notice
under Section 9(3) and (4) of the Act of 1894 dated January
22, 2004 had been issued to the recorded owner/occupiers.
5. Learned Advocate General appearing for the appellants
has contended that, the appellants being the requiring
authority deposited the amount towards the costs of
acquisition with the concerned Collector. Collector had
declared award on September 30, 2004 in which Vendors of
the writ petitioners were amongst the awardees. He has
pointed out that, out of the 128 plots of land involved and
total number of awardees being 311, 129 awardees had
accepted and received the compensation amount. On 19
awardees having not received the same including the erstwhile
4
vendors of the writ petitioners, the compensation amount has
been deposited with the Land Acquisition Tribunal under the
provisions of the Act of 1894.
6. Learned Advocate General appearing for the appellants
has contended that, possession taken and awards passed, the
plots stood vested with the State. State of West Bengal
thereafter had conveyed the land in question by a registered
deed dated November 3, 2004 to the appellants.
7. Learned Advocate General has contended that, the writ
petitioner claimed to have purchased the subject plots in
April, 2022. He has referred to the reliefs sought for in the writ
petition. He has pointed out that, the vendors of the writ
petitioners questioned the requisition proceeding by way of a
writ petition being CO No. 13775 (W) of 1994. Such writ
petition had been disposed of on April 29, 1997. While
disposing of such writ petition on April 29, 1997, High Court
had set aside the possession taken on requisition but allowed
the State to proceed with the acquisition of the land, in
accordance with law.
8. Learned Advocate General appearing for the appellants
has contended that, the land acquisition proceedings in CO
5
No. 13775 (W) of 1994 was different than the land acquisition
proceedings involved herein. Therefore, according to him, the
decision rendered in CO No. 13775 (W) of 1994 has no
manner of application to the land acquisition proceedings
involved in the present appeal and cross objection.
9. Learned Advocate General appearing for the appellants
has submitted that, although the order dated April 29, 1997
passed in CO No. 13775 (W) of 1994 was the basis of the writ
petitioner in the writ petition, in the affidavit in reply, the writ
petitioner sought to take shelter under the judgement and
order dated September 29, 2008 passed in WP No. 654 (W) of
2004. However, he has contended that, no effort was made to
amend the writ petition to substantiate such allegation. In any
event, the judgement and order dated September 25, 2008
passed in WP No. 654 (W) of 2004 related to a challenge to the
notice issued under the Act of 1894 and that the land
acquisition proceedings were not under challenge. Therefore,
according to him, the judgement and order dated September
25, 2008 passed in WP No. 654 (W) of 2004 does not assist
the writ petitioner.
6
10. Learned Advocate General appearing for the appellants
has submitted that, upon publication of the notice under
Section 4 (1 a) of the Act of 1948 the land stood vested with
the State under Section 4 (2) of the Act of 1948. He has
contended that on publication of such notice, the period of
requisition ended. Notice under Section 4 (1 a) of the Act of
1948 had been published on December 14, 1989. Land had
therefore stood vested and once vested cannot be divested. He
has relied upon 2020 Volume 8 Supreme Court Cases 129
(Indore Development Authority vs Manoharlal and ors.) in
support of such contention.
11. Learned Advocate General appearing for the appellants
has has referred to Section 4 and 7A of the Act of 1948. He
has contended that, by virtue of Section 7A notice issued
under Section 4 of the Act of 1948 ceased, however, the
vesting continued. He has referred to Section 9 (3B) of the Act
of 1894 in this regard. He has contended that, there is
difference between the vesting under the Act of 1894 and the
Act of 1948. He has contended that, vesting under the Act of
1894 takes place when possession is taken under Section 16
thereof after compliance with the provisions contained in
7
Sections 4, 5, 5A, 6, 9, 11 and 12 whereas vesting under the
Act of 1948 is a fiction of law which takes place upon
publication of the notice under Sections 4 of the Act of 1948.
12. Learned Advocate General appearing for the appellants
has contended that, Section 11 A of the Act of 1894 was
inserted by the Land Acquisition (Amendment) Act, 1984 while
Section 7A was inserted by the West Bengal Land (Requisition
and Acquisition) (Amendment) Act, 1996. He has contended
that, Section 7A did not provide for lapse of either vesting or
acquisition proceedings. According to him, vesting continues
to remain even with the lapse of notice published under
Section 7A of the Act of 1948. According to him, since the
vesting remained, only the assessment of compensation is
required to be done. According to him, December 14, 1989
when that is the date of publication of the notice under
Section 4 of the Act of 1948 is the date of reference for the
purpose of calculation of compensation.
13. Learned Advocate General appearing for the appellants
has contended that, Section 9 (3B) of the Act of 1894 applies
at the vesting stage whereas Section 9 (3A) thereof applies at
the requisition stage under the Act of 1948. He has contended
8
that, the intention of the legislature in incorporating Section 9
(3A) and (3B) to section 9 of the Act of 1894 is to provide an
opportunity of hearing to the land losers before assessment of
compensation. In the facts of the case, he has pointed out
that, notice under section 9 (3) and (4) of the Act of 1894
dated January 22, 2004 was issued to the recorded
owner/occupiers of the land which can be construed to be a
notice under section 9 (3B) of the Act of 1894 and the
proceedings to be converted from the Act of 1948 to the Act of
1894. Award passed by the Collector on September 30, 2004,
in such perspective has to be construed to be within the
prescribed time and the same does not fall within the mischief
of Section 11 A of the Act of 1894. Therefore, he has
contended that, the award is valid.
14. Learned Advocate General appearing for the appellants
has contended that, there is no statutory format for issuance
of a notice under Section 9(3A) or 9 (3B) of the Act of 1948. In
any event, nor non-issuance of notice under Section 9 (3A) or
9 (3B) could not vitiate the proceeding or affect the rights of
the writ petitioners.
9
15. Learned Advocate General appearing for the appellants
has contended that, assuring that no effective notice was
served upon the predecessors in the interest of the petitioner,
then also, the same does not vitiate the proceeding or the
award. He has relied upon All India Reporter 1962 Mysore
169 (M/s. Hunuikeri Bros., vs. Asst.
Commissioner,Dharwar Division, and Anr.) and 2010
Volume 13 Supreme Court Cases 98 (May George versus
Special Tahsildar and Others) in support of his contention
that, the Act of 1894 does not prescribe for any prejudicial
consequence in case of notice under Section 9 (3) of the Act of
1894 not being served upon the person interested. He has
contended that, law laid down in May George (supra) was
followed in 2013 Volume 11 Supreme Court Cases 296
(Ram Prakash Agarwal and Anr. vs. Gopi Krishnan (Dead
Through Lrs.) and ors.), 2024 SCC online SC 258 (State of
Haryana vs. Ashok Khemka and Anr.) and Indore
Development Authority (supra).
16. Learned Advocate General appearing for the appellants
has contended that, since the writ petitioners are post vesting
purchasers and therefore, they have no locus to challenge the
10
acquisition proceedings. In support of such contentions, he
has relied upon 1996 Volume 3 Supreme Court Cases 124
(U.P. Jal Nigam, Lucknow through its Chairman and Anr.
vs. Kalra Properties (P) Ltd., Lucknow and Ors.), 1996
Volume 11 Supreme Court Cases 698 (Star Wire (India)
Ltd. vs. State of Haryana and Ors.), 2013 Volume 14
Supreme Court Cases 737 (Bangalore Development
Authority vs. Vijaya Leasing Limited and Ors.), 2008
Volume 9 Supreme Court Cases 177 (Meera Sahni vs.
Lieutenant Governor of Delhi and Ors.), 2019 Volume 10
Supreme Court Cases 229 (Shiv Kumar and Anr. vs. Union
of India and Ors.), 2022 Volume 10 Supreme Court Cases
519 (Delhi Development Authority vs. Damini Wadhwa
and Ors.), 2024 Volume 3 Supreme Court Cases 731 (Delhi
Development Authority vs. Narendra Kumar Jain and
Ors.), and 2012 Volume 12 Supreme Court Cases 133 (V.
Chandrasekaran and Anr. vs. Administrative Officer and
Ors.).
17. Referring to the ratio laid down in Indore
Development Authority (supra) learned Advocate General
appearing for the appellants has contended that, if an award
11
is made as on January 1, 2014 being the date of
commencement of the Act of 2013 and, compensation has not
been paid then also there is no lapse. Similarly, if
compensation is being paid, and possession is not taken then
also there is no lapse. He has contended that, non-deposit of
compensation in court does not result in the lapse of land
acquisition proceedings.
18. Learned Advocate General appearing for the appellants
has contended that, the judgement and order dated
September 25, 2008 passed in WP No. 654 (W) of 2004 does
not operate as res judicata for the appellants or the state
authorities in the instant case. He has contended that, the
writ petition is not hit by the principle of res judicata. He has
relied upon 1970 volume 1 Supreme Court cases 613
(Mathura Prasad Bajoo Jaiswal and Ors. vs. Dossibai N.B.
Jeejeebhoy), 2005 Volume 5 Supreme Court Cases 390
(Shakuntala Devi vs. Kamla and Ors.), 2002 Volume 3
Supreme Court Cases 496 (Haryana Financial
Corporation and Anr. vs. Jagdamba Oil Mills and Anr.),
2004 Volume 1 Supreme Court Cases 551 (V. Rajeshwari
vs. T.C. Saravanabava), 2023 SCC Online SC 356 (Prem
12
Kishore & Ors. vs. Brahm Prakash & Ors.), 2010 Volume
12 Supreme Court Cases 400 (Surendra Nath Pandy and
Others vs. Uttar Pradesh Cooperative Bank Limited and
Another), and 2010 Volume 14 Supreme Court Cases 420
(Union of India and Others vs. O.P Nijhawan and Others)
in this regard.
19. Learned Advocate appearing for the State (cross
objector) has submitted that, State is adopting all the
arguments and contentions advanced on behalf of the
appellants by the learned Advocate General.
20. Learned Advocate appearing for the State has referred
to a list of dates in his written notes on arguments. He has
contended that, the writ petitioners have no right to challenge
the land acquisition proceedings even if such proceedings are
deemed to be lapsed in view of the fact that, the writ
petitioners are post vesting purchasers. In support of the
proposition that, a post vesting purchaser has no locus standi
to challenge the acquisition proceedings learned Advocate
appearing for the State has relied upon 2024 Volume 7
Supreme Court Cases 370 (Government of NCT of Delhi
and Another vs. BSK Realtors LLP and Another), 2024
13
Volume 3 Supreme Court Cases 721 (Delhi Development
Authority vs. Narendra Kumar Jain), 2023 Volume 12
Supreme Court Cases 756 (Delhi Development Authority
and Shyamo and Others), 2022 Volume 8 Supreme Court
Cases 771 (Delhi Development Authority vs. Godfrey
Phillips(I) Limited and Others), All India Reporter 2024 J
& K 114 (Sh. Chaman Kumarand Ors. vs. UT of J. and K.
and Ors.) and All India Reporter 2011 SC 3558 (A.P
Industrial Corporation Ltd. vs. Chantamemani
Narasimha Rao & Ors.).
21. Learned senior advocate appearing for the writ
petitioner has referred to the prayers made in the writ
petition. He has submitted that, the challenge in the writ
petition is the omission on the part of the authorities
concerned to issue a formal order of release in spite of the
judgement and order dated April 29, 1997 passed in CO No.
13775 (W) of 1994 declaring the acquisition itself to be void.
He has pointed out that, the land in question is RS the Nos.
845 (33.5 decimals), 846 (4 decimals) and 847 (9 decimals)
aggregating to about 46.50 decimals situated at Mouza
Pakuria.
14
22. Learned senior advocate appearing for the writ
petitioner has submitted that, the predecessor in title of the
writ petitioner filed a writ petition being CO No. 13775 (W) of
1994, alleging that there was no notice under Section 3 (1) or
Section 4 of the Act of 1948 served upon the predecessor in
title. He has referred to the stand taken by the State in the
affidavit used in CO No. 13775 (W) of 1994. He has submitted
that, the claim of acquisition under Section 4 (1A) of the Act of
1948 in respect of plot Nos. 845 and 846 was under challenge
in such writ petition. He has referred to the judgement and
order dated April 29, 1997 passed in CO No. 13775 (W) of
1994. He has contended that, by the time, the judgement and
order dated April 29, 1997 was passed, the Act of 1948 had
expired on April 1, 1997.
23. Learned senior advocate appearing for the writ
petitioner has contended that, State accepted the directions
issued in the judgement and order dated April 29, 1997
passed in CO No. 13775 (W) of 1994. He has referred to a
letter dated March 2, 2001 and the follow-up letter dated
August 13, 2022 in this regard. He has contended that, by
15
such letters, State had admitted that the land in question had
to be released to the writ petitioner.
24. Learned senior advocate appearing for the writ
petitioner has contended that, although the judgement and
order dated April 29, 1997 passed in CO No. 13775 (W) of
1994 permitted the State to proceed afresh, having declared
the proceedings up to the date of the judgement and order,
void, State did not proceed afresh but sought to convert
proceedings under the Act of 1948 to be one under the Act of
1894. He has contended that, since, the judgement and order
dated April 29, 1997 had declared the proceedings under the
Act of 1948 to be void, the same could not have been validly
converted. In support of such contention, he has relied upon
2011 Volume 3 Calcutta High Court Notes 555 (State of
West Bengal vs. Sabita Mondal).
25. Learned senior advocate appearing for the writ
petitioner has contended that, both the requisitions and the
acquisition proceedings under the Act of 1948 were stillborn.
Judgement and order dated April 29, 1997 passed in CO No.
13775 (W) of 1994 had attained finality. Since, State did not
issue a formal order of release, the writ petition had to be
16
filed. In such writ petition an interim order dated December
21, 2022 was passed against which, an appeal was filed. By
an order dated March 1, 2023, the Division Bench had set
aside the interim order and directed the learned Single Judge
to hear the writ petition on the point of interim order again.
26. Learned senior advocate appearing for the writ
petitioner has referred to an order dated September 25, 2008
passed in WPA No. 654 of 2004. He has also referred to the
judgement and order dated February 21, 2013 passed by the
Division Bench. He has pointed out that, the Special Leave
Petition filed by the appellants directed against the judgement
and order dated February 21, 2013 was dismissed by the
Supreme Court on July 4, 2013.
27. Learned senior advocate appearing for the writ
petitioner has referred to an order dated January 21, 2025
passed in the present appeal by the coordinate bench. He has
also referred to affidavit of the State filed pursuant thereto
and in particular to paragraphs 7 and 8 thereof. He has
contended that, in such affidavit, State has acknowledged
that, the land acquisition case was initiated under Act of 1948
and that, no fresh notice under Section 4 and 6 of the Act of
17
1894 were issued. He has submitted that, the proceedings
under the Act of 1948 was declared void by the judgement and
order dated April 29, 1997 passed in CO No. 13775 (W) of
1994. Subsequent thereto, no further notice was issued under
the Act of 1894.
28. State government had undertaken two land acquisition
proceedings under the Act of 1948 being LA Case No. 27/1
(Act II)/CMDA of 1984-85 for plot Nos. 845, 846 and 847 and
LA Case No. 29/1 (Act II) of 1984-85 for plot Nos. 1441, 1442,
1443, 1444, 1445, 1446, 1447, 13281, 1332, 1371 for the
construction of West Howrah Township Project. in order to
increase the employment opportunities for the youth by
establishing commercial and industrial estate and for creation
of better living in rural areas. Initially, State had requisitioned
such properties at the behest of the appellants.
29. According to the State possession of the land in
respect of LA Case No. 29/1 had been made over to the
appellants, being the requiring authority, on May 24, 1988.
According to the State, a notification dated May 24, 1989 had
been issued under Section 4 (1 a) of the Act of 1948 which
was published in the Calcutta Gazette on December 14, 1989.
18
30. Predecessor in title of the writ petitioner had filed a
writ petition being CO No. 13775 (W) of 1994 challenging the
acquisition proceedings in respect of plot Nos. 845, 846 and
847. Such writ petition was disposed of by a judgement and
order dated April 29, 1997. Relevant portion of such
judgement and order dated April 29, 1997 is as follows: –
“In this writ petition the purported requisition of the lands of
the writ petitioners under the provisions of West Bengal Land
(Requisition and Acquisition) Act 1948 has been challenged.
The petitioners alleged that the lands of the writ petitioners as
mentioned in the writ petition were purported to be
requisitioned under the provisions of the said Act without
service of any notice and/or any order made under the
provisions of the said Act to the writ petitioners. Though the
State respondent filed an affidavit-in-opposition to this writ
petition contending that the lands of the writ petitioners were
acquired under the provisions of said West Bengal Land
(Requisition and Acquisition) Act of 1948 but no order made
under sub-Section 1 of Section 3 for requisition of the same
and/or for acquisition under Section 4 of the said Act upon
requisition of the lands in question have been disclosed in the
said affidavit-in-opposition except a copy showing taking over
possession of the lands in dispute. It is settled principle of law
that nobody should be deprived of his property without due
process of law. Since, there is no material either to show that
there was an order for requisition of the lands in question or
the same was served upon the writ petitioners, so this writ
petition succeeds and the possession, if any, taken by the
respondent authorities without due process of law shall stand
19set aside. However, the aforesaid order will not prevent the
respondent authorities to proceed in accordance with the
provisions of law for the purpose of acquisition of the lands in
question of the writ petitioners.
Thus this writ petition is disposed of.”
31. Judgment and order dated April 29, 1997 has
categorically held that there was no order of requisition and
that possession taken was illegal. State did not refer any
appeal from the judgement and order dated April 29, 1997.
Rather, there are two letters dated March 2, 2001 and August
30, 2022 by which, the authorities have decided to the
derequisition/relinquish the plots. By the order dated March
2, 2001 the appellants has forwarded the application for
derequisition to the State for necessary action. State by the
letter dated August 30, 2022 has asked the appellants as to
the status of the plots in questions.
32. In the present appeal, the coordinate bench by an
order dated January 21, 2025 had called upon the State to
submit a report in the form of an affidavit with regard to the
steps taken subsequent to the judgement and order dated
April 29, 1997 in respect of the plots concerned. Pursuant to
such order dated January 21, 2025, State by an affidavit
20
dated February 7, 2025 has stated that, in respect of the land
acquisition case initiated under the Act of 1948 in 1986-87,
no fresh notice under section 4 and 6 of the Act of 1894 were
issued and/or published in the Calcutta Gazette.
33. In such affidavit dated February 7, 2025, State
however has sought to dispute that, the plots concerned in the
writ petition were not part of LA Case No. 27/1 but was
involved in LA case No. 29/1. Writ petitioner has however
disputed this claim of the State.
34. Be that as it may, the fact remains that the High Court
in a writ petition involving the 3 concerned plots of land, being
CO No. 13775 (W) of 1994, by the judgments and order dated
April 29, 1997 passed in presence of the State, has held that
there was no order for requisition of the plots involved, and
directed the State to make over possession to the writ
petitioner therein being the predecessor in interest of the writ
petitioner herein. State did not act in terms of the liberty
granted to proceed in accordance with the law for the purpose
of acquiring the plots in question.
35. State has claimed that there were in aggregate two
acquisition proceedings being LA Case No. 27/1 and LA Case
21
No. 29/1 in respect of the same project. In respect of these
two acquisition proceedings, four writ petitions including the
present writ petition under consideration, had been filed
before the High Court.
36. The first writ petition in point of time, was CO No.
13775 (W) of 1994 which had been disposed of on April 29,
1997 and concerns the subject plots in question in this
appeal.
37. The next writ petition in order of time is WP No. 654 of
2004 (M/s. Rungta Agencies Ltd and others versus State of
West Bengal) which was disposed of by a judgement and order
dated September 25, 2008. By such judgement and order, the
learned Single Judge had held that, the plots of land involved
therein were not acquired in accordance with law. Learned
Single Judge had directed release of such plot of land in
favour of the writ petitioners therein. Both the appellants
before us as well as the State had carried appeals against the
judgement and order dated September 25, 2008 passed in WP
No. 654 of 2004 being APO No. 66 of 2009 and APO No. 67 of
2009. Both such appeals had been disposed of by a judgement
and order dated February 21, 2013. The appeal court has held
22
that, notice under section 9 (3B) was never given. Appeal
court has affirmed the judgement and order dated September
25, 2008 passed in WP No. 654 of 2004.
38. The next writ petition in order of time is WP No. 3719
(W) of 2005. Such writ petition was also allowed by directing
the authorities to release the land in question to the
subsequent purchasers. Appeal preferred there from being
FMA 1120 of 2010 was disposed of by an order dated January
3, 2013 by directing the acquiring authorities to hear the
subsequent purchasers on the basis of the notice dated May
17, 2004. Special leave petition preferred against the order
dated January 3, 2013 was dismissed.
39. Parties before us are bound by the judgement and
order dated April 29, 1997 passed in CO No. 13775 (W) of
1994 which had directed the authorities to make over
possession of the plots of land in question to the predecessor
in interest of the writ petitioner herein, after holding that
there was no requisition proceeding. Such direction not being
complied with, the subsequent writ petition was filed in
respect of the same plots, by persons claiming to be the
owners thereof.
23
40. It is in this factual matrix that, the contention that, a
writ petition is not maintainable by a person claiming to be a
purchaser subsequent to the vesting, is required to be
considered.
41. In the facts and circumstances of the present case, the
High Court has held that, there was no requisition
proceedings for the plots of land concerned. Such finding is
binding upon the parties before us. Such finding was rendered
on a writ petition filed by the predecessor in title to the writ
petitioner before us.
42. There being no requisition proceedings in respect of
the 3 plots of land involved, and the State having stated in
their affidavit affirmed as February 7, 2025 that as notice
under Sections 4 or 6 of the Act of 1894 being issued, the
question of vesting of the same with the State, free from all
encumbrances does not arise. Vesting not having taken place,
the predecessor in title was entitled to deal with the 3 plots of
land including selling the same which, the predecessor in title
did to the writ petitioner. Such sale cannot be said to be
invalid or the writ petitioner before us not to have acquired
any right, title and interest in respect of such plots of land.
24
Writ petitioner before us cannot be considered to be a “post-
vesting” purchaser with no vesting taking place prior to his
purchaser.
43. Authorities cited at the bar that a post-vesting
purchaser has no locus standi to question a
requisition/acquisition proceeding are not attracted to the
facts and circumstances of the present case, as there was no
vesting of the plots of land concerned.
44. Appellants and State have cited various authorities on
the issue of res judicata. The last of such authorities cited, in
order of time, is BSK Realtors LLP (supra) which has held
that, a previous decision of a competent court on facts which
are foundation of right and relevant law applicable to
determination of transaction which is the source of right, is
res judicata. The previous decision on the matter in issue is a
composite decision. Decision of law cannot be dissociated
from decision on facts on which the right is founded. A
decision on an issue of law will be res judicata in a
subsequent proceeding between the same parties, if cause of
action of subsequent proceeding is the same as in previous
proceeding, but not when cause of action is different, nor
25
when law has since the earlier decision, been altered by a
competent authority, nor when the decision relates to
jurisdiction of courts to try the earlier proceeding, nor when
earlier decision declares valid a transaction which is
prohibited by law.
45. In the facts and circumstances of the present case, the
cause of action of the writ petitioner is not different from that
of the earlier writ petitioner being its predecessor in title. Law
applicable, since the earlier decision has not been altered by a
competent authority, High Court which had decided the
earlier writ petition cannot be said to be without jurisdiction
or had by its earlier decision declared a transaction valid
which is prohibited by law.
46. None of the grounds which exempts the applicability of
the principles of res judicata as noted in BSK Realtors LLP
(supra) stands attracted in the facts and circumstances of the
present case.
47. Intricacies of Section 9 of the Act of 1894 including the
authorities of May George (supra) and the line of cases
following it, need not be considered as, the High Court had set
aside the requisition/acquisition proceeding in respect of the
26
plots of land by the judgement and order dated April 29, 1997
passed in CO No. 13775 (W) of 1994. State has admitted in its
affidavit affirmed on February 7, 2025 that, no fresh notice
under section 4 and 6 of the Act of 1894 were issued and/or
published in the Calcutta Gazette, in respect of the plots of
land involved.
48. There being no requisition/acquisition proceedings in
respect of the plots of land involved, State and the appellants
are in wrongful possession thereof.
49. Learned Single Judge by the impugned judgement and
order has directed the authorities to issue formal order of de-
requisition of the plots involved to the writ petitioner. Learned
Single Judge has also granted liberty to the State to initiate
fresh acquisition proceeding.
50. The parties before us being bound by the order dated
April 29, 1997 passed in CO No. 13775(W) of 1994 which has
held that there was no requisition proceeding and in view of
the affidavit of the State affirmed on February 7, 2025 we
modify the directions of the learned Single Judge relating to
the issuance of formal order of derequisition to one of a
direction to make over actual physical possession of the plots
27
to the writ petitioner within four weeks from date. Other
direction of the learned Single Judge is affirmed.
51. In view of the discussions above, we do not find any
merit in the appeal or the cross objection.
52. In view of the discussions above FMA 177 of 2024,
COT 81 of 2024 along with all connected applications are
disposed of without any order as to costs.
[DEBANGSU BASAK, J.]
53. I agree.
[MD. SHABBAR RASHIDI, J.]