Calcutta High Court (Appellete Side)
Shri Jagannath Prasad Gupta & Ors vs Union Of India & Ors on 2 July, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Prasenjit Biswas
M.A.T. 9 of 2025
IA NO: CAN/1/2025
Shri Jagannath Prasad Gupta & Ors.
vs.
Union of India & ors.
For the Appellants : Mr. Saptangshu Basu, Senior Advocate
Mr. Gopal Ch. Ghosh, Advocate
Mr. Rajkrishna Mondal, Advocate
Mr. Ravi Kr. Shah, Advocate
For the respondents
Nos.2 & 4 : Mr. Jayanta Kr. Mitra, Senior Advocate
Mr. Sakya Sen, Senior Advocate
Mr. Suvadeep Sen, Advocate
Heard on : 02.07.2025
Judgment on : 02.07.2025
DEBANGSU BASAK, J.:-
1. Appeal is at the behest of the writ petitioners and directed against the
judgment and order dated December 17, 2024 passed in W.P.A. 20081
of 2022.
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2. By the impugned judgment and order, learned Single Judge dismissed
the writ petition after finding that, Metro Railway authority did not
breach any provisions of law in acquiring premises no.1, National
Library Avenue, Kolkata- 700027 (for the sake convenience hereinafter
referred to as the National Library Property). Learned Single Judge also
directed that, in the event, writ petitioners failed to vacate the National
Library Property within a period of six weeks Metro Railway authority
shall be at liberty to take steps in accordance with law to obtain vacant
possession thereof. Local police authorities were directed to render
assistance to the Metro Railway authority for such purpose.
3. Learned Senior Advocate appearing for the appellants submits that, the
appellants are tenants of the National Library Property. He points out
that, portion of premises no.1, National Library Avenue, Kolkata-700
027 was initially acquired by the Metro Railway authority. Since the
appellants were not occupying the portion of the acquisition of such
property, the appellants did not object thereto. Thereafter, Metro
Railway authority proceeded to initiate proceedings for acquiring the
remaining portion of the National Library Property. It is at this juncture
that, the right, title and interest of the appellants stood affected, since,
the appellants were occupying such portion of the National Library
property. Consequently, the appellants raised objections under the
provisions of the Metro Railway (Construction of Works) Act, 1978.
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4. Learned Senior Advocate appearing for the appellants submits that, the
acquisition of remaining portion of the National Library property were
undertaken under the provisions of the Act of 1978. Since, the
appellants are tenants in respect of the portion of the National Library
property which is sought to be acquired under the Act of 1978, in terms
of Section 9 of the Act of 1978, the appellants submitted objection. Such
objection was heard and decided by an order dated July 1, 2022.
5. Learned Senior Advocate appearing for the appellants refers to the order
dated July 1, 2022 and submits that, reason for overruling the objection
raised by the appellants as appearing from the order dated July 1, 2022
is that, the National Library property was required for a public purpose.
6. Learned Senior Advocate appearing for the appellants submits that, the
finding of public purpose returned by the order dated July 1, 2022 is
perverse. He submits that, no public purpose is involved since, the
pleadings before Court demonstrates that, Metro Railway authority was
acquiring the National Library property for the purpose of
accommodating Nepal Consulate. He submits that, Nepal Consulate is
not immune from acquisition or requisition proceeding. In support of
such contention he submits that, Nepal Consulate is governed by the
Vienna Convention on Consular Relation, 1963 India Government
ratified such Vienna Convention on Consular Relation, 1963. The same
does not prohibit an acquisition from requisition of consulate property.
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In support of such contention he relies upon Article 31 of the Vienna
Convention on Consular Relation, 1963. He submits that, ability of
acquiring authority to acquire a Consulate governed under Vienna
Convention on Consular Relation, 1963 came up for consideration
before Bombay High Court in AIR 1997 Bombay 148 (Earth Builders,
Bombay versus State of Maharashtra and others) in which, the
Bombay High Court was pleased to hold that, Consulate of any country
is not immune from any requisition or acquisition proceeding.
7. Learned Senior Advocate appearing for the appellants submits that,
once it is held that, Nepal Consulate is not immune from either
acquisition or requisition proceeding in terms of Vienna Convention on
Consular Relation, 1963, there was no impediment of Metro Railway in
acquiring Nepal Consulate for the purpose of so-called expansion of the
Metro Railway. In any event, he submits that, the actual line of the
Metro Railway does not pass over from Nepal Consulate. Furthermore,
if, the Metro Railway authority deemed it appropriate that the property
belonging to Nepal Consulate is required for Metro Railway expansion
the same can be acquired by the Metro Railway authority.
8. Learned Senior Advocate appearing for the appellants submits that,
Metro Railway authority cannot be permitted to invoke the provisions of
the Act of 1978 in order to acquire the National Library property on the
ostensible purpose of accommodating Nepal Consulate therein. He
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submits that, Metro Railway is not obliged to provide alternative
accommodation to an individual whose property it is acquiring
ostensibly for the purpose of construction of a Metro Railway. Therefore,
the decision impugned in the writ petition dated July 1, 2022 is bad in
law and the same is required to be set aside. The entirety of the
acquisition proceeding in relation to the National Library property
should be quashed as it does not come within the scope and ambit of
the Act of 1978.
9. Learned Senior Advocate appearing for the Metro Railway authority
submits that, the landlord of the National Library property, accepted
acquisition. Landlord thereof, received the compensation amount.
Landlord appeared before learned Single Judge and expressed the view
that, they do not object to the acquisition proceeding at all. Rather, they
accepted the same. In this regard, he draws the attention of the Court to
the recording made in the impugned judgment and order.
10. Learned Senior Advocate appearing for the Metro Railway authority
submits that, since, the appellants before Court are claiming to be
tenants under the landlord, they obviously cannot claim a superior or
higher right than their landlord. He relies upon (1996) 11 Supreme
Court Cases 501 (Municipal Corporation of Greater Bombay versus
Industrial Development Investment Co. Pvt. Ltd and others) for the
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proposition that, once the landlord accepts the acquisition, the tenants
cannot be permitted to assail the same acquisition.
11. Learned Senior Advocate appearing for the Metro Railway submits that,
the completion of the construction of railway track in between
Mominpur (Ex) to Esplanade section of Joka-BBD Bag Metro corridor is
stalled due to the property of Nepal Consulate coming in between. He
submits that, such property is required for the purpose of completion of
such construction. Nepal Consulate raised objections when, the
alignment of Metro Railway went in or about such property. Such issue
was deliberated upon at the appropriate level between the Nepal
Government as well as the India Government. He draws the attention of
the Court to the several minutes of meeting prepared in this regard. He
submits that, in course of such deliberations it was decided that, Nepal
Consulate will be afforded alternative space. National Library property
was identified as one of the properties available to Nepal Consulate to
shift who agreed to accept the same in lieu of the present property. It is
in this factual matrix that Metro Railway authority decided to initiate
acquisition proceeding in respect of National Library property.
12. Learned Senior Advocate appearing for the Metro Railways submits that,
a portion of the National Library property was already acquired.
Remaining portion was found to be required for the purpose of
accommodating Nepal Consulate. He submits that, unless, Nepal
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Consulate is accommodated properly, the construction of the Metro
Railway project as noted above cannot proceed with.
13. Learned Senior Advocate appearing for the Metro Railway authority
draws the attention of the Court to the Diplomatic Relations (Vienna
Convention) Act, 1972 and in particular to Section 8 thereof. He also
refers to the schedule of the Act of 1972 and particularly to Article 22
thereof. He submits that, a diplomatic mission enjoys a level of
immunity.
14. Learned Senior Advocate appearing for the Metro Railway authority
submits that, despite, the immunity enjoyed by the Nepal
Consulate in terms of the Act of 1972, the two governments agreed that,
Nepal Consulate will be accommodated at the National Library property.
Therefore, the National Library property is required for the Metro
Railway project.
15. Learned Senior Advocate appearing for the Metro Railway authority,
draws the attention of the Court to the series of events occurring with
regard to the acquisition proceeding. He contends that, it is nobody’s
case that, provision of Chapter III of the Act of 1978 were not been
adhered to. He submits that, Section 6 of the Act of 1978 empowers the
Metro administration to acquire land for metro constructions.
Notification under Section 7 of the Act of 1978 was duly published.
Appellants submitted a written objection to the acquisition proceeding.
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Appellants were heard and their objection was disposed of by a reasoned
order passed in terms of Section 9 of the Act of 1978 on July 1, 2022.
He submits that, the view taken by the Metro Railway Administration
being plausible, the same need not be scrutinized by a Writ Court as a
court of appeal.
16. Learned Senior Advocate appearing for the Metro Railway authorities
submits that, the appellants did not make out any ground to interfere
with the impugned judgment and order.
17. None appears for the landlords in the present appeal although, they
represented before the learned Single Judge.
18. Metro Railway is processing construction of railway track in between
Mominpur (Ex) to Esplanade section of Joka-BBD Bag Metro corridor. In
respect of such project, Metro Railways published a notification under
Section 7 of the Act of 1978 on October 9, 2020 for acquiring 105.324
sq. mtr. of premises no.1, National Library Avenue, Kolkata-700 027.
Gazette notification dated October 9, 2020 was published in the daily
newspaper on November 1, 2020 wherein, objections were invited.
19. Gazette notification under Section 10 of the Act of 1978 was published
on October 11, 2021 in respect of the National Library property. Notice
was published in the daily newspaper under Section 13 of the Act of
1978 for the purpose of submission of claim from persons having
interest in the property acquired, on October 31, 2021. Gazette
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notification under Section 7 of the Act of 1978 was published on
January 12, 2022 for the purpose of acquiring the remaining quantum
of 532.634 sq. mtr. of land at premises no.1, National Library Avenue,
Kolkata-700027. Notification dated March 6, 2022 was published under
Section 7 of the Act of 1978 with regard to 532.634 sq. mtr. of National
Library property.
20. By a letter dated March 9, 2022 issued by the Ministry of External
Affairs the Nepal Embassy was informed about shifting of Nepal
Consulate to the remaining portion of the National Library property.
21. Appellants submitted the objections against the acquisition of the
remaining portion of the National Library property on March 24, 2022.
On the basis of such objection, Objection Cases were initiated. The
objectors were heard by the Metro Railway authorities. By an order
dated July 1, 2022, competent authority acting under the Act of 1978
rejected objections of the appellants in the objection cases recorded.
22. Metro Railway authority thereafter proceeded to issue notification under
Section 10 of the Act of 1978 in respect of remaining portion of the
National Library property on July 4, 2022. The owners of such property,
did not object to such acquisition. Metro Railway authority published
notice in the daily newspaper on July 17, 2022 in terms of Section 13 of
the Act of 1978 inviting claims from persons having interest in the
remaining portion of National Library property.
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23. On August 10, 2022, joint inspection was conducted on the claim made
by the owners of the property in respect of the premises no.1, National
Library Avenue, Kolkata-700027. On December 23, 2022, possession
was made over by the owners for the first tranche of acquisition being
105.326 sq. mtr. On February 10, 2023 a meeting was held at
Katmandu Nepal between officials of Nepal Government as well as India
Government authorities wherein, Government of Nepal agreed to the
proposal of shifting its existing Consulate to the remaining portion of the
National Library property.
24. On May, 15, 2023, joint inspection was held on application filed by the
owners for the remaining portion of the National Library property. There
are electronic mail exchange between the Ministry of External Affairs
and the Metro Railway authorities about remaining portion of the
National Library property.
25. Possession was sought to taken from the owners of the remaining
portion of the National Library property on December 1, 2023. On
December 18, 2023, possession of 105 sq. mtr. of land of the National
Library property was handed over by the owners to the Metro Railway
authorities on receipt of the compensation for such land.
26. Competent authority proceeded to deposit the compensation amount on
January 10, 2024 for the remaining portion of the National Library
property being 532.634 sq. mtr. of land as possession thereof could not
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be taken in as it was occupied by several occupiers including the
appellants.
27. Metro Railway project of railway track between Mominpur (Ex) to
Esplanade section of Joka-BBD Bag Metro corridor falls squarely within
the Act of 1978. Land admittedly is required for completion of such
project. Alignment of such project is such that, it passes over a property
where, Nepal Consulate is situated. Nepal Consulate raised objection
with regard to the construction of such project. Elaborate discussions
were held between the two nations for the purpose of finding out a
solution to the impasse. It was agreed between the governments of the
two nations that, Nepal Consulate will be accommodated at the
remaining portion of the National Library property comprising an area of
532.634 sq. mtr. of land.
28. Decision of Metro Railway authority to acquire 532.634 sq. mtr. of land
being the remaining portion of the National Library property therefore,
cannot be said to be arbitrary, capricious or in colourable exercise of
powers under the Act of 1978. A portion of the National Library property
was already acquired for the implementation of Metro Railway project.
Such acquisition was under the Act of 1978. The remaining portion of
the National Library property, being 532.634 sq. mtr. of land is also
required for completion of the Metro Railway project and therefore,
cannot be said to be immune from the purview of Act of 1978.
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29. Decision of the Metro Railway authority to initiate proceeding for
acquisition of 532.634 sq. mtr. of land invoking the provisions of the Act
of 1978 is not de hors the powers granted to the Metro Railway
authorities under the Act of 1978. Metro Railway administration is
empowered to acquire land for the construction of any metro railway or
any work connected therewith in terms of Section 6 of the Act of 1978.
Nothing is placed before us to suggest that, the Nepal Consulate land is
not required or is not offending the construction of a Metro Railway as
envisaged. Nothing is placed before us to establish that, the grievances
of the Nepal Consulate, are misplaced. In any event, the Nepal
Government and the India Government agreed to provide the Nepal
Consulate with an alternative accommodation in order to ensure that
the Metro Railway project is completed.
30. It is the contention of the appellants that, Metro Railway can acquire the
Nepal Consulate land and that there is no impediment with regard
thereto. In support of such contention reliance is placed on the Vienna
Convention on Consular Relation, 1963 and Earth Builders, Bombay
(supra).
31. There are differences between a diplomatic mission and Consulate.
Diplomatic missions enjoy certain immunities and privileges under the
Vienna Convention on Diplomatic Relation, 1961. The Diplomatic
Relation (Vienna Convention) Act, 1972 recognises some of the
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provisions of the Vienna Convention on Diplomatic Relation, 1961 as
embodied in the schedule to the Act of 1962.
32. As noted above, we are concerned with a Consulate. Nepal Consulate is
governed by the provisions of the Vienna Convention on Consular
Relation, 1963. The provisions of the Vienna Convention on Consular
Relation, 1963 fell for consideration before the Bombay High Court in
Earth Builder, Bombay (supra). It was noticed that India Government
ratified Vienna Convention on Consular Relation, 1963 on November 28,
1977. On appraising the several provisions of the Vienna Convention on
Consular Relation, 1963, Earth Builder, Bombay (Supra) was of the
view that, Article 31 of such Convention, 1963 does not prevent
acquisition of a consulate provided all possible steps are taken to avoid
impeding the performance of consular functions and prompt, adequate
and effective compensation is paid to the sending State. It is precisely in
this arena of cooperation that the two Governments namely the sending
Government as also the host Government entered into elaborate
deliberations as to the method and manner of accommodating the Nepal
Consulate at an appropriate place so as not to violate the Vienna
Convention on Consular Relation, 1963. It was agreed between Nepal
Government and the India Government that the remaining portion of the
National Library property will be acquired for the purpose of shifting the
present location of the Nepal Consulate.
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33. Significantly, the appellants before us are tenants. The landlord under
which the appellants claim tenancy in respect of the remaining portion
of the National Library property accepted the acquisition. In Municipal
Corporation of Greater Bombay (supra) the Supreme Court noted that,
it was a settled principles of law that a tenant cannot challenge a
notification under Sections 4 and declaration under Section 6 of the
Land Acquisition Act, 1894 when the landlord himself accepted the
award and received compensation.
34. The Act of 1894 governs acquisition of land. The Act of 1978 empowers
Metro Railways administration to acquire land required for the
construction of a Metro Railway. In both the statutes, land can be
acquired for a public purpose. The Act of 1894 does not specify the
public purpose for which such statute can be invoked. The Act of 1978
however, circumscribes the power of the Metro Railway to initiate
acquisition proceedings limited to construction of a Metro Railway and
any other purpose connected therewith. We already noted that, the
remaining portion of the National Library property was required for the
completion of the Metro Railway project. Therefore, we are of the view
that, by the same analogy as in relation to Sections 4 and 6 of the Act of
1984 vis-à-vis landlord and tenant in respect of an acquisition
proceedings, as enunciated in Municipal Corporation of Greater
Bombay (supra) will apply in respect of a acquisition proceeding under
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the Act, 1978. A tenant cannot be allowed to challenge an acquisition
under the Act of 1978 when its landlord accepted the same.
35. In view of the discussions, we find no ground to interfere with the
judgment and order impugned. We, however, extend the time granted by
the learned Single Judge for obtaining vacant possession of the property
for a period of 2 weeks from date.
36. All interim orders and undertakings, if there be any, stand vacated.
37. MAT 09 of 2025 along with the connected applications are disposed of
without any order as to costs.
(Debangsu Basak, J.)
38. I agree.
(Prasenjit Biswas, J.)
CHC/Dd