Calcutta High Court (Appellete Side)
Authority vs Pawan Kumar Chowdhury And Ors on 16 July, 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
MAT 1878 of 2024
With
CAN 1 of 2024
The Chairman, Kolkata Metropolitan Development
Authority
Vs.
Pawan Kumar Chowdhury and Ors.
With
MAT 2294 of 2024
With
CAN 1 of 2024
CAN 2 of 2024
State of West Bengal and Ors.
Vs.
Sri Pawan Kumar Chowdhury and Ors.
For the Appellant-KMDA : Mr. Kishore Dutta, Ld. Adv. Gen.
In MAT 1878 of 2024 Mr. Satyajit Talukdar, Adv.
Mr. Arindam Chatterjee, Adv.
For the Writ Petitioners/ : Mr. Debayan Bera, Ld. Sr. Adv.
Respondents Mr. Swapan Kumar Kar, Adv.
For the State in :Mr. Pantu Deb Roy, Ld. AGP.
MAT 1878 of 2024 Mr. Subrata Guha Biswas, Adv.
For the State/Appellants :Mr. Rabindra Narayan Dutta, Adv.
In MAT 2294 of 2024 Mr. Arkoday Mukherjee, Adv.
Hearing Concluded on : June 12, 2025
Judgement on : July 16, 2025
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.07.16
13:42:33 +05'30'
2
DEBANGSU BASAK, J.:-
1. Two appeals have been heard analogously as they
emanate out of the same impugned judgement and order
dated August 23, 2024 passed in WPA No. 10244 of 2016.
2. By the impugned judgement and order, learned Single
Judge has set aside the acquisition in respect of the plots
concerned and directed making over of possession thereof to
the writ petitioners.
3. Learned Advocate General appearing for the appellants
in MAT No.1878 of 2024 (hereinafter referred to as the first
appeal for the sake of convenience) has referred to the
sequence of events. He has submitted that, acquisition
proceedings were initiated under the West Bengal Land
(Requisition and Acquisition) Act, 1948 in 1986-87 in respect
of the plots concerned. Possession of the plots along with
other plots had been taken on May 24, 1988. Notification
under Section 4(1a) of the Act of 1948 had been published in
the Calcutta Gazette, Extraordinary on December 14, 1989.
Since the acquisition proceedings could not be completed
within the lifetime of the Act of 1948, the same had been
3
switched over to the Land Acquisition Act, 1894 by invoking
the amended provisions of Section 9 (3B) of the Act of 1894.
4. Learned Advocate General appearing for the appellants
in the first appeal has contended that, the acquiring authority
issued a notice dated May 17, 2004 to the predecessors in
interest of the writ petitioners as they were found to be the
persons interested during the course of hearing under Section
9 (3B) of the Act of 1894. The writ petitioners had filed a
representation dated December 19, 2004 to the notice dated
May 17, 2004 claiming to be the purchasers of the subject
land. Acquiring authority had declared the award on October
11, 2004.
5. Learned Advocate General appearing for the appellants
in the first appeal has contended that, the writ petitioners
filed a writ petition being WP No. 3719 (W) of 2005 challenging
the notice dated May 17, 2004. Appellants in the first appeal
were not made parties in such a writ petition. Such writ
petition had been disposed of on February 1, 2010 holding
that the notice dated May 17, 2004 cannot be said to be a
notice under Section 9 (3B) of the Act of 1894 and that, the
land were not acquired in accordance with law.
4
6. Learned Advocate General appearing for the appellants
in the first appeal has submitted that, the judgement and
order dated February 1, 2010 was challenged both by the
appellants in the first appeal as well as the State separately.
In such appeals, by a judgement and order dated January 3,
2013, the judgement and order dated February 1, 2010 of the
learned Single Judge had been set aside. The writ petitioners
had preferred a Special Leave Petition directed against the
judgement and order dated January 3, 2013 which was
disposed of on December 16, 2014 by granting liberty to the
writ petitioners to move the authority in terms of the liberty
granted by the High Court by its order dated January 3, 2013.
7. Learned Advocate General appearing for the appellants
in the first appeal has contended that, the writ petitioners
filed a fresh representation dated January 13, 2015. Such
representation was disposed of by the concerned Collector on
February 16, 2015 upholding the validity of the award
declared on October 11, 2004 and holding that the writ
petitioners were post vesting purchasers and therefore, the
question of release of the land to them does not arise.
5
8. Learned Advocate General appearing for the appellants
in the first appeal has contended that, challenging the
decision of the Collector dated February 16, 2015 a writ
petition being WPA 10244 of 2016 was filed by the writ
petitioners which has resulted in the impugned judgement
and order.
9. Learned Advocate General appearing for the appellants
in the first appeal has contended that, upon publication of the
notice under Section 4(1a) on December 14, 1989 of the Act of
1948 the land stood vested with the State under Section 4 (2)
of the Act of 1948. Relying upon 2020 Volume 8 Supreme
Court Cases 129 (Indore Development Authority vs
Manoharlal and ors.) learned Advocate General appearing
for the appellants in the first appeal has contended that, land
once vested cannot be divested unless there is a specific
provision of law to such effect and that, there is no such
provision either in the Act of 1894 or in the Act of 1948.
10. Learned Advocate General appearing for the appellants
in the first appeal has submitted that, with the application of
Section 4 of the Act of 1948 requisition ceases. By operation of
Section 7A notice issued under Section 4(1a) of the Act of
6
1948 ceases, however, the vesting continues. He has referred
to Section 9 (3B) of the Act of 1894 in support of his
contention. He has contended that, upon issuance of the
notice under Section 4(1a) of the Act of 1948 vesting
continued with the State.
11. Learned Advocate General appearing for the appellants
in the first appeal has contended that, vesting under Act of
1894 and under the Act of 1948 are completely different.
According to him, vesting under the Act of 1894 takes place
when possession is taken under Section 16 after compliance
with the provisions contained in Sections 4, 5, 5A, 6, 9, 11
and 12 whereas vesting under the Act of 1948 is a fiction of
law which takes place by publication of a notice under Section
4(1a) of the Act of 1948. He has compared the provisions of
Section 7A of the Act of 1948 which provides that notice shall
lapse while Section 11 A of the Act of 1894 which provides
that the entire proceedings for the acquisition of the land shall
lapse. He has pointed out that, Section 11 A of the Act of 1894
was inserted by the Land Acquisition (Amendment) Act, 1984
whereas Section 7A was inserted by the West Bengal Land
(Requisition and Acquisition) (Amendment) Act, 1996. He has
7
contended that, despite being related amendment, Section 7A
did not provide for lapsing of either vesting or the acquisition
proceedings. Therefore, with the lapse of notice published
under Section 7A the vesting remains untouched.
12. Learned Advocate General appearing for the appellants
in the first appeal has contended that, presumption that with
the lapse of notice under Section 4(1a) of the Act of 1948, the
vesting lapses, is contrary to law. He has contended that, if
the Legislature does not include what was virtually implied, it
is assumed that it was excluded.
13. Relying upon 2012 Volume 12 Supreme Court Cases
133 (V. Chandrasekaran and Anr. vs. Administrative
Officer and Ors.) learned Advocate General appearing for the
appellants in the first appeal has contended that, in view of
the admitted case that possession was taken, the land stood
vested and that the government cannot withdraw from the
acquisition. After vesting what remains is assessment of
compensation and that the date of reference is the main
decisive factor. Since, notice under Section 4 (1a) of the Act of
1948 was published on December 14, 1989 the same will be
8
the date of reference for the purpose of assessment of
compensation.
14. Learned Advocate General appearing for the appellants
in the first appeal has contended that, the applicability of the
provisions of Section 9 (3A) and 9 (3B) of the Act of 1894 is
dependent upon the stage of the proceedings under the Act of
1948, that is, whether it is at the requisition stage or vesting
stage. He has pointed out that the respective cut-off dates for
assessment of market value of the land are mentioned in both
the Sections.
15. Learned Advocate General appearing for the appellants
in the first appeal has contended that, when Section 9 (3B) of
the Act of 1894 is invoked, the provisions contained in
Sections 4 to 8 and 16 thereof are deemed to have been
complied with. He has contended that, when Section 9 (3A) of
the Act of 1894 is invoked, the provisions contained in
Sections 4 to 8 barring Section 16 of the Act of 1894 is
deemed to have been complied with. Thereafter, the Collector
has to make an award under Section 11 of the Act of 1894.
According to him, Section 9 (3B) applies at the vesting stage
whereas Section 9 (3A) applies at the requisition stage under
9
the Act of 1948. He has contended that, the intention of the
legislature in incorporating the amended provisions of
Sections 9 (3A) or Section 9 (3B) of the Act of 1894 is to
provide an opportunity of hearing to the landowners before
assessment of compensation. In the instant case, according to
him, opportunity was granted by issuing a notice dated May
17, 2004 to the predecessor in interest of the writ petitioners
and that, such predecessor in interest responded to such
notice also. The writ petitioners cannot claim that such notice
was nonest in the eye of law in absence of any statutory
requirement in that regard.
16. Learned Advocate General appearing for the appellants
in the first appeal has contended that the notice dated May
17, 2004 should be construed to be a notice under Section 9
(3B) of the Act of 1984 and the proceedings thereafter
converted from the Act of 1948 to the Act of 1894. The award
passed by the Collector on October 11, 2004 was within the
prescribed time and that the same does not fall within the
mischief of Section 11 A of the Act of 1894. Therefore,
according to him, award is valid.
10
17. Learned Advocate General appearing for the appellants
in the first appeal has contended that the writ petitioners
claim to have purchased the land in the years 2000 to 2002.
Notice under Section 4(1a) of the Act of 1948 having been
published on December 14, 1989, the writ petitioners are post
vesting transferees having no right to challenge the acquisition
proceedings on any ground nor can they claim lapse of such
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
11
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.).
18. Learned Advocate General appearing for the appellants
in the first appeal has contended that, notice under Section 9
(3) and (4) of the Act of 1894 were admittedly issued to the
writ petitioners. He has contended that there is no statutory
format for a notice under Section 9 (3A) or 9 (3B) of the Act of
1894. Non-issuance of notice under Section 9 (3A) or Section
9 (3B) of the Act of 1894 would not legally vitiate any
proceeding or affect the rights of the writ petitioners. He has
contended that, absence of notice under Section 9 (3B) of the
Act of 1894 did not cause any prejudice to the writ petitioners
since notice under Section 9 (3) and 9 (4) of the Act of 1894
were served upon the writ petitioners. 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
contentions.
12
19. Learned Advocate General appearing for the appellants
in the first appeal has drawn the attention of the court that
pursuant to the order dated February 20, 2025 passed in the
appeals, records of the land acquisition proceedings were
produced. Inspection thereof had been taken on behalf of the
writ petitioners. He has relied upon All India Reporter 1962
Mysore 169 (M/s. Hunuikeri Bros., vs. Asst. Commissioner,
Dharwar Division, and Anr.) and May George (supra) in
support of the proposition that, there is no statutory format
for a notice under Section 9 (3) of the Act of 1894 and that,
the writ petitioners have failed to demonstrate that they
suffered any prejudice by the alleged non issuance of the
notice under Section 9 (3B) of the Act of 1894.
20. Learned senior advocate appearing for the writ
petitioners has referred to the various provisions of the Act of
1894 including Section 3 thereof. He has submitted that, the
Act of 1894 was a temporary statute. Initially the life of
statute was up to March 31, 1951. Thereafter, the life of the
Act of 1948 had been extended from time to time and lastly till
March 31, 1997. Thereafter, no further extension has been
granted. He has pointed out that, the last extension was
13
granted by the West Bengal Land (Requisition and Acquisition)
(Amendment) Act, 1994 which was published on March 31,
1994. He has pointed out that, the West Bengal Land
(Requisition and Acquisition) (Amendment) Act, 1996 had
been passed to amend the Act of 1948 to introduce Section 7A
to the Act of 1948. Such amendment had come into force on
and from April 1, 1994. He has contended that, by virtue of
Section 7A of the Act of 1948, the Collector was required to
declare the award within 3 years from the date of notification
under Section 4 (1a) of the Act of 1948 and if such award was
not made within such period, the notice shall lapse. He has
pointed out that, under the proviso to Section 7A of the Act of
1948, in cases where such notice has been published more
than 2 years before the commencement of the Amendment Act
of 1994, an award shall be made within a period of one year
from the date of commencement of that Act, that is to say
that, where notices were published 2 years before April 1,
1994, the award was directed to be published on or before
March 31, 1995 otherwise the notice for acquisition shall
lapse.
14
21. Learned senior advocate appearing for the writ
petitioners has submitted that Land Acquisition (West Bengal
Amendment) Act, 1997 was enacted by which, Section 9, 11A,
23(1)(A) and 54 of the Act of 1894 were amended in its
application to the State of West Bengal. He has contended that
the purpose of the Amendment Act of 1997 was to complete
the requisition and acquisition proceedings which were
initiated under the Act of 1948 but could not be completed by
publishing the award within March 31, 1997.
22. Learned senior advocate appearing for the writ
petitioners has contended that, the vires of the first proviso
sub-Section (3B) of the Act of 1894 as amended by the
Amendment Act of 1997 was challenged by way of a writ
petition. He has relied upon 2002 Volume 3 Calcutta High
Court Notes 108 (Sabitri Devi and Others vs. State of
West Bengal) and contended that by a judgment and order
dated December 24, 2001 passed in such writ petition it was
held that, in cases where the notices under Section 4(1a) of
the Act of 1948 stood lapsed on March 31, 1997 as per the
provisions of Section 9(3B) of the Amendment Act of 1894 the
proviso will not be attracted. It will be attracted only in cases
15
where the notices under Section 4(1a) of the Act of 1948 have
survived March 31, 1997 and in all other cases, Section 9(3A)
of the Act of 1894 will apply.
23. Learned senior advocate appearing for the writ
petitioner has contended that, there was difference of opinion
regarding lapse of notice under Section 4(1a) of the Act of
1948 between two co-ordinate Division Benches and the
matter was referred to the Special Bench. He has referred to
2011 Volume 3 CHN (CAL) 555 (State of West Bengal vs.
Sabita Mondal) in this regard.
24. Learned senior advocate appearing for the writ
petitioners has contended that appeals directed against
Sabitri Devi And others (supra) were dismissed. Special
Leave Petition filed by the State challenging the judgment and
order dated June 17, 2011 of the Special Bench has been
dismissed with the certain directions.
25. Learned senior advocate appearing for the writ
petitioners has contended that, the Act of 1894 as applicable
to the State of West Bengal was amended by the West Bengal
Land Acquisition Laws (Amendment and Validation) Act, 2011
which was published in the Calcutta Gazette on May 19,
16
2012. By such amendment, validation of lapsed notices issued
under Section 4(1a) of the Act of 1948 was sought to be made.
A Division Bench in 2013 Volume 1 CHN (CAL) 444
(Mandodari Bhakat vs. State of West Bengal) has
considered the issue and held that there was no question of
validating any lapse proceedings.
26. Learned senior advocate appearing for the writ
petitioners has submitted that, Special Leave Petition directed
against Mandodari Bhakat (supra) was dismissed by a
common judgment and order dated March 09, 2018. Supreme
Court has observed that, it will be open for the State or the
Acquiring Authority to take steps under the provisions of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
27. Learned senior advocate appearing for the writ
petitioners has contended that, the authorities on the subject
were considered in WP No. 6705 (w) of 2018 (Mahadeb
Khan and Others. vs. The State of West Bengal and
others).
28. Referring to the merits of the case, learned senior
advocate appearing for the writ petitioners has submitted
17
that, the Land Acquisition Collector had erroneously held
that, the writ petitioners were post vesting purchasers. He has
pointed out that the notification for the acquisition was issued
on December 14, 1989 which is two years prior to the
commencement of the Amendment Act on 1994. Therefore, the
notice had lapsed on March 31, 1995 since no award was
declared by that day. He has relied upon Sabitri Devi And
others and Sabita Mondal (supra) in this regard. He has
contended that, award cannot be declared resorting to Section
9(3A) or 9(3B). He has pointed out that, although the Collector
claims that there was a notice under Section 9(3B) in fact, no
such notice was ever issued. Moreover, according to him,
notice for acquisition which stood lapsed on March 31, 1995
in view of Sabitri Devi And others (supra) and Mandodari
Bhakat (supra) vesting did not continue. Therefore, the
contention that the writ petitioners are post vesting
purchasers are without any substance.
29. Learned senior advocate appearing for the writ
petitioners has contended that, the vesting under the Act of
1948 is different from that of the Act of 1994. He has
contended that, the Act of 1948 was a temporary statute
18
under which the acquisition proceeding was initiated.
Schemes under the two Acts are completely different. Concept
of vesting under the two Acts are different. He has pointed out
that, both in Sabitri Devi And others (supra) and
Mandodari Bhakat (supra) it was held that the vesting did
not continue and that, in view of the lapse of the acquisition
proceedings under Section 7A of the Act of 1948 title of the
original owner revived.
30. Learned senior advocate appearing for the writ
petitioners has contended that, the ratio of Indore
Development Authority vs Manoharlal and ors. (supra) has
no manner of application in the present case.
31. Learned advocate appearing for the State has adopted
the submissions advanced by the learned Advocate General
appearing for the appellants in the first appeal. He has also
referred to the sequence of events with regard to the present
proceedings. He has contended that, the writ petitioners are
post vesting purchasers and have no right to challenge the
acquisition proceedings. He has relied upon 2024 Volume 4
Supreme Court Cases 721 (Delhi Development Authority
versus Narendra Kumar Jain and others) and 2023
19
Volume 12 Supreme Court Cases 756 (Delhi Development
Authority versus Shyamo and others) in support of such
contention.
32. In or about 1986/1987 State had initiated acquisition
proceedings of various plots of land at Mouza Pakuria, District
Howrah, including the land involved in the present appeals,
for West Howrah Township Project. Appearing parties have
admitted that, acquisition proceedings were initiated under
the provisions of the Act of 1948 in respect of the plots
concerned in these appeals.
33. State had taken possession of the land in question by
a possession certificate dated May 24, 1988 issued under
Section 3 of the Act of 1948. State had issued a notification
under Section 4(1a) of the Act of 1948 dated December 14,
1989 which was published in the Calcutta Gazette. By several
registered deeds the writ petitioners had purchased the land
in question from the recorded owners between the period
March 10, 2000 and February 28, 2002. By a notice dated
May 17, 2004, the Special Land Acquisition Officer (Howrah
Improvement Trust), Howrah had intimated the writ
petitioners that in course of hearing under Section 9 (3B) of
20
the Act of 1894, the writ petitioners were found to be persons
interested and therefore they were directed to be present at
the hearing. Writ petitioners filed representations dated
December 19, 2004. An award dated October 11, 2004 had
been declared.
34. The acquisition proceedings had commenced under the
Act of 1948 and with the Act of 1948 coming to an end, the
acquisition proceedings were sought to be continued under
the Act of 1894. While State and the appellants in the first
appeal have contended that, the continuation of the
acquisition proceedings under the Act of 1894 is valid, the
writ petitioners have contended that, State failed to continue
with the acquisition proceedings under the Act of 1894 as the
Act of 1894 was not invoked in accordance with law that is to
say within the validity period of the Act of 1948 which the
State and the appellants in the first appeal have contended
that the land stood vested with the State on completion of the
acquisition proceedings under the Act of 1894 the writ
petitioners have contended the proceedings under the Act of
1948 stood lapsed with no valid migration to the Act of 1894
taking place as ordained by statute.
21
35. Issue is whether the invocation of the Act of 1894 in
the facts and circumstances of the present case was within
time or validly done or not.
36. Issue as to whether the migration of the acquisition
proceeding from the Act of 1948 to the Act of 1894 as provided
by law, in the facts and circumstances of the present case,
was done or not, requires consideration, of both the law on
the subject, as well as the events occurring between the
parties.
37. The Act of 1948 came into being for the purpose of
equipping the State with an expeditious mechanism for
requisition and acquisition of land for certain purposes. It was
conceived of as a temporary statute. Section 1(4) of the Act of
1948 laid down the terminal date of the statute. Originally, it
was March 31, 1951. However such terminal date was
extended from time to time. The last extension was by the
West Bengal Land (Requisition and Acquisition) (Amendment)
Act, 1994 which extended the life of the Act of 1948 till March
31, 1997.
38. In order to facilitate completion of the acquisition
proceedings already initiated under the Act of 1948 and the
22
making and publishing of the award, and to allow migration
from the Act of 1948 to the Act of 1894 prior to the Act of
1948 expiring by efflux of time, both the Act of 1948 as well as
the Act of 1894 were amended.
39. By the West Bengal Land (Requisition and Acquisition)
(Amendment) Act, 1996 which incorporated Section 7A into
the Act of 1948. The Amendment Act of 1996 came into effect
on and from April 1, 1994. Section 7A of the Act of 1948 is as
follows: –
“7A. Award by Collector. – The Collector shall make an
award under sub-section (2) of section 7 within a period of
three years from the date of publication of the notice in the
Official Gazette under sub-section (1a) of section 4
(hereinafter referred to as to said notice), and if such award
is not made within the period as aforesaid, the said notice
shall lapse:
Provided that in a case where the said notice has
been published more than two years before commencement
of the West Bengal Land (Requisition and Acquisition)
(Amendment) Act, 1994 (West Ben. Act XIV of 1994), the
award shall be made within a period of one year from the
date of commencement of that Act.
Explanation.-In computing the period of three
years or one year, as the case may be, under this section,
the period during which any action or proceeding to be taken
in pursuance of the said notice is stayed by an order of a
Court having jurisdiction, shall be excluded.”
23
40. In one category Section 7A has carved out two
categories for the purpose of making and publishing the
award. Categorisation is on the basis of the duration of the
time period between the date of the notice under Section 4(1a)
of the Act of 1948 and the publication of the award. Section
7A of the Act of 1948 required the Collector to declare award
within 3 years from the date of notification under Section 4
(1a) of the Act of 1948. It provided for the default in making
the award within the stipulated period. Failure to make the
award within the stipulated period resulted in the lapse of the
notice under Section 4 (1a) of the Act of 1948.
41. In the second category Proviso to Section 7A of the Act
of 1948 stipulated that, where the notice under Section 4 (1a)
of the Act of 1948 was published more than 2 years before the
commencement of the West Bengal Land (Requisition and
Acquisition (Amendment) Act, 1994 the award shall be made
within a period of one year from the date of commencement of
the Amendment Act of 1994. In other words, award must be
published on or before March 31, 1995 in respect of the
notices which were published two years before April 1, 1994
and on the failure to do so, the notices shall lapse.
24
42. State Government amended the Act of 1894 in its
application to the State of West Bengal by the Land
Acquisition (West Bengal Amendment) Act, 1997 with effect
from April 1, 1997. Provisions of Section 9, 11A, 23 (1A) and
54 of the Act of 1894 were amended in order to complete the
requisition and acquisition proceedings which were initiated
under the Act of 1948 and could not be completed by
publishing an award within March 31, 1997.
43. Sub Section (3B) of Section 9 of the Act of 1894 was
amended by the Land Acquisition (West Bengal Amendment)
Act, 1997 to introduce one proviso to the existing 2 nd proviso
to such sub section.
44. Relevant to the context of the present appeals are sub
sub-Sections (3A) and (3B) of Section 9 of the Act of 1894
which are as follows: –
“3A. The collector shall also serve notice to the same
effect on all such persons known or believed to be interested
in any land, or to be entitled to act for persons so interested,
the possession whereof has already been taken on
requisition under section 3 of the West Bengal Land
(Requisition and Acquisition) Act, 1948 (hereinafter referred
to in this section as the said Act), as re-enacted by the West
Bengal Land (Requisition and Acquisition) Re-enacting Act,
1977, and, in every such case, the provisions of sub-section
25(1) of section 4, section 5, section 5A, section 6, section 7 and
section 8 of this Act shall be deemed to have been complied
with:
Provided that the date of notice under this sub-section
shall be the date of reference for the purpose of determining
the value of such land under this Act:
Provided further that when the Collector has made an
award under section 11 in respect of any such land, such
land, upon such award, vest absolutely in the Government,
free from all encumbrances.
3B. The Collector shall also serve notice to the same
effect on all such persons known or believed to be interested
in any land, or to be entitled to act for persons so interested,
the possession whereof has already been taken on
requisition under section 3 of the said Act and notice for
acquisition of such land has also been published under sub-
section (1a) of section 4 of the said Act, and, in every such
case, the provisions of section 4, section 5, section 5A section
6, section 7, section 8, and section 16 of this Act shall be
deemed to have been complied with.
Provided that the date of publication of notice under
sub-section (1a) of section 4 of the said Act shall be the date
of reference for purpose of determining the value of such land
under this Act:
Provided further that in every such case, the collection
shall make an award under section 11 in respect of such
land only for the purpose of payment of due compensation to
the persons interested in such land where such land has,
upon the Collector taking possession thereof, already vested
absolutely in the Government, free from all encumbrances.”
45. The amendments introduced to the two statutes
provide the migration gateway architecture for a requisition or
26
acquisition commencing under the Act of 1948 to be validly
concluded under the Act of 1894. The gateway created allows
one way traffic of migration from the Act of 1948 to the Act of
1894. The amendments mandated that failure to cross the
gateway within the time specified would result in the lapse of
the notice issued under the Act of 1948. In other words,
failure to crossover would result in the proceeding under the
Act of 1948 being rendered a nullity and void ab initio.
46. Vires of Section 9 (3B) of the Act of 1894 were
considered in Sabitri Devi (supra). Learned single judge
considered the interplay between the provisions of the Act of
1948 and the Act of 1894 which provided for the migration of
acquisition proceedings from the Act of 1948 to the Act of
1894. It held that, once the proceedings under the Act of 1948
lapsed under Section 7A thereof, the same cannot be revived.
47. The Full Bench of the Calcutta High Court has
considered the issue of lapse of requisition/acquisition
proceeding and interplay of the two statutes in Sabita
Mandal (supra). It held as follows: –
“19. Thus, the effect of the LAND ACQUISITION (WEST
BENGAL AMENDMENT) ACT, 1997 which came into
operation on the midnight between March 31, 1997 and April
271, 1997 prevented all those notices under sub-section (1a) of
section 4 issued after April 1, 1994 from being lapsed by
giving scope of revival by way of a notice under Sub-section
(3B) of section 9 of the said Act if award had not been
passed within three years from the date of publication of
such notice and which would otherwise lapse if the said Act
of 1997 would not come into operation at the midnight of
March 31, 1997.
20. However, in respect of those notices under sub-
section (1a) of section 4 which were issued prior to March 31,
1992 and in respect of which no award had been passed by
March 31, 1995, those notices had already lapsed and by
the Amendment Act 1997 of the Land Acquisition Act by the
West Bengal Legislature, no provision has been made for
revival of the lapsed notices which stood lapsed already on
March 31, 1997 for non-compliance of the provision of
Amendment Act of 1996. By the Amendment Act of 1997
only those notices under sub-section (1a) of section 4 which
would have lapsed on the midnight of March 31, 1997 or on
subsequent dates, have been saved.”
48. Issue of lapse of proceedings undertaken under the Act
of 1948 was considered in Mandodari Bhakat (supra). It
considered the Full Bench decision of Sabita Mandal (supra)
amongst other authorities, and held as follows: –
“46.It is significant to note that the validation is
confined to notice issued under the Principal Act i.e. under
the Land acquisition Act of 1894 as amended by Section 2
of 2011 Act inserting the second proviso and also as
amended by section 3 of the 2011 Act antedating the
commencement of 1997 Act are sought to be validated.
28
47.There is no question of validating any lapsed
proceeding under section 7A of Act II of 1948 and by no
imagination the 2011 Act having its retrospective
commencement from 1st April, 1997 can be said to have
revised and validated an acquisition which has lapsed on
or before 31st March, 1995 by operation of section 7A of Act
II of 1948.
48.It is to be noted that the laws providing for
compulsory acquisition are confiscatory in nature depriving
a person of his property without his consent and according
to settled principles such laws are to be strictly construed
and applied.
49.The learned Single Judge however, by the
impugned judgment and order under appeal dismissed the
writ petitions on the ground of delay which we are unable
to accept since the impugned acquisition notice issued
under Section 4(1a) stood lapsed due to non-publication of
award by 31st March, 1995 as declared by the Special
Bench on 17th June, 2011 and the writ petition was filed
before this Court in the month of August, 2011. The learned
Single Judge also held that the appellants/writ petitioners
herein are post vesting purchasers which is not factually
correct since the sale deeds in respect of most of the plots
in question were executed in the year 1985 before the
issuance of the notice of acquisition under section 4(1a).
The notice of acquisition under section 4(1a) was issued on
1st December, 1988.
50.In any event, notice of acquisition issued in the
present case under section 4(1a) had already lapsed by
operation of law since the said notice under section 4(1a)
was admittedly issued before 31st March, 1992 and no
award had been passed by 31st March, 1995.
29
51.In view of lapsing of the acquisition proceedings
under Section 7A of Act II of 1948, the title of the original
owner revives. Even if any portion of the land covered by
the notification issued under section 4(1a) was transferred
subsequently to any third person namely, in favour of any
one of the present appellants/petitioners then also after
lapsing of the acquisition proceedings title of the original
owner would revive. The subsequent purchaser and the
original owner will thereafter be entitled to work out their
respective rights in respect of the said land and we are not
inclined to decide the same at this stage since it is beyond
the scope of the present appeal.”
49. Supreme Court dismissed Special Leave Petition filed
against Mandodari Bhakat (supra) being Special Leave to
Appeal (C) Nos. 25739 of 2013, on March 9, 2018.
50. Mahadeb Khan (supra) followed Mandodari Bhakat
(supra). It held that, introduction of sub-section (3A) and (3B)
to Section 9 of the Act of 1894 does not save the lapse of the
proceedings.
51. Migration architecture put in place by the Land
Acquisition (West Bengal Amendment) Act, 1997 by
introduction of sub-section (3A) and (3B) to Section 9 of the
Act of 1894 dealt with both requisition and acquisition
undertaken in terms of the Act of 1948. Sub-section (3A) dealt
with a situation where, the proceeding under the Act of 1948
30
is at the requisition stage while sub-section (3B) dealt with the
situation where the proceeding under the Act of 1948 is under
the acquisition stage. Both the sub-sections required that
notices be issued by the Collector to the persons interested.
Both provided that, where the Collector made an award under
Section 11 of the Act of 1894, the land shall vest absolutely
with the government, free from all encumbrances.
52. Migration architecture for either a requisition or an
acquisition proceeding to migrate from the Act of 1948 to the
Act of 1894 requires a notice under Section 9 (3A) or 9 (3B) as
the case may be. In both scenarios, once such notice is
issued, the land would vest only upon an award being made in
terms of Section 11 of the Act of 1894.
53. This migration architecture noted in the two previous
paragraphs herein is required to be considered in light of
Section 7A of the Act of 1948. Section 7A of the Act of 1948
mandated that the Collector make an award under Section 7
(2) within a period of 3 years from date of the publication of
the notice in the official Gazette under sub-section (1a) of
Section 4. It provided that, in the event, such award is not
made within the period as stipulated therein, the notice under
31
Section 4 (1a) of the Act of 1948 would lapse. The proviso to
Section 7A of the Act of 1948 allowed the award to be made
within a period of one year from the date of commencement of
the West Bengal Land Requisition and Acquisition
(Amendment) Act, 1994, that is, 2 years from March 31, 1994.
54. Statutes noted above provide for the time period within
which the Collector is required to make and publish the award
in the scenarios specified. Default in making and publishing
the award within the time period stipulated, causes lapse of
the notice under Section 4 (1 a) of the Act of 1948.
55. Second proviso to sub-sections (3A) and (3B) of Section
9 of the Act of 1894 provide for vesting of the land only upon
the Collector making an award under Section 11 thereof.
56. The net result of the interplay between the provisions
of the Act of 1948 and the Act of 1894, as amended, in order
to allow for the lapse of the Act of 1948 by efflux of time and
to allow the continuation of requisition and acquisition
proceedings initiated under the Act of 1948, once it ceases to
have effect, is that, there has to be a notice under Section 9
(3A) or (3B) and an award passed within the time stipulated
for the vesting to take place. In the event of non-compliance of
32
any of such statutory provisions, the notice under Section 4 (1
a) of the Act of 1948 stands lapsed.
57. Records produced in Court have established that, a
notice claimed to be under Section 9 (3) and (4) of the Act of
1894 was issued to the writ petitioners on January 22, 2004
much after the lapse of the Act of 1948 on March 31, 1997.
The award is claimed to have been declared on October 11,
2004.
58. Therefore, there is no notice under Section 9 (3A) and
(3B) of the Act of 1894 within the validity period of the Act of
1948. Even if, one is to consider that, a notice under Section 9
(3) and (4) of the Act of 1894 to be a notice under Section 9
(3A) and (3B) thereof, then also, such notice in the facts and
circumstances of the present case is beyond the stipulated
period of the validity of the Act of 1948.
59. We hasten to add that, we are not suggesting or
subscribing to the view that, a notice under Section 9 (3) or (4)
of the Act of 1894 can or should be construed as a notice
under Section 9 (3A) and/or (3B) thereof as, such issue need
not be decided in the facts and circumstances of the present
case.
33
60. In the facts and circumstances of the present case, no
notice under Section 9 (3A) or 9 (3B) of the Act of 1894 was
issued within the validity period of the Act of 1948 for the
Collector to make and publish an award within the validity
period prescribed under Section 7A of the Act of 1948.
61. By reason of the absence of notice under Section 9 (3A)
or 9 (3B) the notice under Section 4 (1 a) of the Act of 1948
stood lapsed as on March 31, 1997, when the last date to
which, the Act of 1948 was valid.
62. On the expiry of March 31, 1997 with no valid
migration taking place from the Act of 1948 to the Act of 1894
in respect of the acquisition proceedings of the plots
concerned, the notice under Section 4 (1a) of the Act of 1948
stood lapsed.
63. In our view, once, the notice under Section 4 (1a) of
the Act of 1948 lapses then, all steps taken prior and post
thereto under the Act of 1948 stands nullified. Rights, title
and interest of the parties existing on the date on which, the
requisition proceedings were initiated under the Act of 1948
revives. In the eye of law, the land in question is required to be
34
treated as belonging to the owners as on the date of the
initiation of the proceeding.
64. State not complying with the mandatory provisions
relating to migration from the Act of 1948 to the Act of 1894
cannot be allowed to take shelter under the plea that, land
stood vested with the issuance of the notice under Section 4 (1
a) of the Act of 1948. Vesting as provided under Section 4 of
the Act of 1948 is subject to the acquisition proceedings being
completed within the validity period of the Act of 1948 and in
the event of failure to do so, then, within the time stipulated
for a valid migration of the proceedings from the Act of 1948
to the Act of 1894.
65. It is in this context, the 2nd proviso to sub sections
(3A) and (3B) of Section 9 of the Act of 1894 assumes
significance since it prescribes that, the award needs to be
made under Section 11 of the Act of 1894 for the land to vest
with the State, free from all encumbrances.
66. Therefore, there must be a valid migration from the Act
of 1948 to the Act of 1894 and an award passed under Section
11 of the Act of 1894 for a valid vesting to take place. Vesting
contemplated under Section 4 of the Act of 1948 will occur
35
only if, the acquisition proceedings are completed within the
validity period of the Act of 1948 or on valid migration from
the Act of 1948 to the Act of 1894.
67. In light of the discussions above, we are unable to
subscribe to the view of the appellants in the first appeal and
the State that, the land stood vested with the State and that,
the writ petitioners are to be considered as post-vesting
purchases and therefore without any right to challenge the
acquisition proceedings. Right, title and interest of the
vendors of the writ petitioners, to the subject plots, revived
immediately on lapse of the notice under Section 4 (1a) of the
Act of 1948 on March 31, 1997. Therefore, the vendors of the
writ petitioners possessed right, title and interest in respect of
the plots concerned to sell to the writ petitioners.
68. Since the writ petitioners cannot be said to be post-
vesting purchasers, as, on the date of purchase by the writ
petitioners, there was no vesting in the eye of law, the ratio
laid down in U.P. Jal Nigam, Lucknow through its
Chairman and Anr (supra), Star Wire (India) Ltd. (supra),
Bangalore Development Authority (supra), Meera Sahni
(supra), Shiv Kumar and Anr. (supra), Damini Wadhwa
36
and Ors. (supra), Narendra Kumar Jain and Ors. (supra),
V. Chandrasekaran and Anr. (supra), Narendra Kumar
Jain and others (supra) and Shyamo and others (supra)
are not attracted in the facts and circumstances of the present
case.
69. Similarly, since there is no vesting and since, there is
no valid award in the eye of law, the ratio laid down in Indore
Development Authority (Lapse-5) (supra) are not attracted in
the facts and circumstances of the present case. Likewise, V.
Chandrasekaran (supra) is not applicable. Post March 31,
1997, there being no vesting in the eye of law, possession of
the State or any other authority, over the subject plots,
claiming rights under the Act of 1948 or the Act of 1894, is
illegal.
70. Ratio laid down in M/s. Hunuikeri Bros., (supra) and
May George (supra) are not attracted since, State did not
take appropriate steps within the validity period of the Act of
1948.
71. In view of the discussions above, we find no merit in
the present appeals.
37
72. MAT 1878 of 2024 and MAT 2294 of 2024 along with
all connected applications are disposed of without any orders
to cost.
[DEBANGSU BASAK, J.]
73. I agree.
[MD. SHABBAR RASHIDI, J.]
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