The acquisition proceeding in respect of Premises Nos. 27/1 and 27/B on Dehi Serampore Road, Calcutta having been set aside by the Calcutta High Court, the Land Acquisition Collector is in appeal against the same. The premises in question had been requisitioned under the provisions of West Bengal Requisition and Control (Temporary Provision) Act, 1947, for accommodating students of Calcutta National Medical College, Calcutta by order dated 10th April, 1948. An acquisition proceeding in respect of the same premises was initiated by issuance of a notice under Section 4 of the Land Acquisition Act (hereinafter referred to as "the Act"), by Notification dated 17-12-1982. Declaration under Section 6 of the Act was issued on 13-12-1989. The acquisition proceedings related to both the premises, as aforesaid as well as a common passage. One K. K. Dugar and one A. P. Ganguly claiming right of way on the common passage assailed the aforesaid acquisition proceeding by filing a Writ Petition in the Calcutta High Court. The learned single Judge of the Calcutta High Court quashed the notification by order dated 3rd April, 1992. The said order was assailed by filing an appeal to the Division Bench, but the appeal itself being barred by time and the application for condonation not having been allowed the appeal stood dismissed. Subsequently a fresh notification was issued under Section 4 only in respect of the premises Nos. 27/1a and 27/1b excluding the common passage and notices were issued under Sections 9, 10 and 11 of the Act requiring interested persons to file application for compensation. Be it be stated, that the premises in question stood de-requisitioned by an order dated 2-7-1993. Writ Petition having been filed challenging the notices issued under Sections 9, 10 and 11 was registered as writ petition No. 805 of 1994. The High Court quashed the notices issued under Sections 9, 10 and 11 of the Act by Order dated 25-8-1994 and it was further directed that the vacant possession of the disputed premises should be handed over within a period of six months. The aforesaid writ petition had been filed by the owner of the premises in question. Though time was extended by the Court for delivery of possession but it is alleged that no possession had been delivered to the owner. On 29-11-1994 a fresh notification was issued under Sections 4(1) and 17(4) of the Act for the purpose of use of National Medical College. Declaration under Section 6 of the Act was issued on 30-8-1995. Public notices of substance of the declaration was also given at the convenient places in the locality in two daily newspapers published on 10-9-95. Notices under Sections 9 and 10 of the Act were served upon the interested persons on 18-10-95 inviting claims by 2-11-95. The State Government sanctioned Rs. 50,41,515/- for paying the compensation amount. The Land Acquisition Collector issued notices under Section 11 on 27-10-95 and the same was served upon the persons interested on 2-11-95. The aforesaid notice was assailed by filing a writ petition which was registered as writ petition No. 1900 of 1995 challenging the entire acquisition. The learned single Judge of the Calcutta High Court disposed of the writ petition by judgment dated 14-10-1999 by holding that the notification issued under Sections 4 and 6 as well as invocation of Section 17(1) and 17(4) dispensing with hearing under Section 5A of the Act is not assailable. It, however, directed that the appropriate authority should proceed afresh from the stage of issuance of notification under Section 9 and the acquisition proceeding should be completed with utmost expedition. Pursuant to the aforesaid judgment of the learned single Judge, notification under Section 9 of the Act was issued again on 15-10-1999. But the owners assailed the legality of the order of the learned single Judge by filing an appeal to the Division Bench. The Division Bench of the Calcutta High Court by judgment dated 17-5-2000 having allowed the appeal and having quashed the acquisition proceeding, the Special Land Acquisition Officer has approached this Court. The Division Bench while disposing of the writ appeal by the impugned judgment have been persuaded to interfere, substantially on the ground that since the earlier judgment and direction of the learned single Judge of Calcutta High Court dated 25-8-1994 directing delivery of the possession to the owner has not been complied with, the acquisition is mala fide and is not in accordance with law. The Division Bench in the impugned judgment came to hold that grave urgency and emergency being the pre-condition for invoking powers under sub-sections (1) and (4) of the Section 17, and in the case in hand, no such urgency having been present, invocation of power under Section 17(4) gets vitiated and, therefore, the commencement of the acquisition proceeding must be held to be not in accordance with law. Having quashed the acquisition proceeding the Court further observed that it would be open to start a proceeding afresh in accordance with law.
(2.)Mr. Altaf Ahmad, learned Additional Solicitor General appearing for the appellant contended, that the purpose of acquisition being undoubtedly a public purpose, namely, for the use of National Medical College and the Competent Authority being of the opinion that the facts situation require invocation of urgency clause under Section 17 of the Act, the Court in exercise of its extraordinary jurisdiction could not have interfered with the aforesaid subjective satisfaction of the authority in the matter of urgency and, therefore, the order is vitiated. The learned Additional Solicitor General further contended, that non-delivery of possession, pursuant to the earlier direction of the High Court, could not be a ground for quashing a valid Notification issued under Sections 4(1) and 17(4) of the Act. The High Court, therefore, committed serious error in interfering with the acquisition in question. According to the learned Additional Solicitor General the conclusion of the High Court that the acquisition is mala fide is based upon non-existence of any materials, and therefore, the same must be interfered with. In reply to the submission of the counsel appearing for the respondents to the effect that the object of invoking the urgency clause under Section 17 being to take immediate possession of the acquired land and in the case in hand that possession being with the Medical College ever since the premises stood requisitioned under the provisions of requisition under West Bengal Act of 1947, the very pre-condition of attracting Section 17 was non existent, it is stated that the earlier possession was not the possession of a lawful owner and the notification for acquisition having been quashed by the Court on two earlier occasions, the acquiring authority felt the necessity of urgent acquisition, and therefore the contention of the respondents' counsel is unsustainable.
(3.)Mr. Bhaskar Gupta, learned senior counsel appearing for one of the respondent and Mr. Ashok H. Desai, learned senior counsel, appearing for other respondents vehemently urged that in respect of a land which is under possession of the State Government or any other authority, the emergency power under Section 17 of the Act cannot be invoked inasmuch as the legislature have conferred power to take possession of the acquired land even without complying with the provision of Section 5A of the Act only in case of grave emergency where the acquisition cannot brook the delay of 30 days period which is contemplated for filing of petition under Section 5A. This being the position and the Medical College being in possession of the premises right from 1948 the appropriate authorities could not have invoked the emergency provision under Section 17 of the Act. The counsel also further urged that the right conferred under Section 5A is a valuable right to the owner and the owner should not be deprived of the same unless there exists real emergency. It was further urged that the High Court was justified in taking into account the defiant attitude of the Government in not delivering possession notwithstanding the earlier orders of the Court directing possession to be delivered within a period of six months.