G.C. Gupta, J. - (1.) This appeal is directed against an order dated 12.3.1996 passed by the learned Single Judge dismissing an application by which Land Acquisition proceedings were challenged. Aggrieved by the order the owners have preferred this appeal. The facts of the case are as follows: The writ petitioners are the owners of the subject piece of land, the Patashpore Thana Co -operative Rice Mill Society Ltd. (hereinafter referred to as the Company) unlawfully encroached the land belonging to the writ petitioners. The writ petitioners and / or their predecessor -in -interest, for recovery or land from the company, filed a suit being Title Suit No. 165 of 1980. The suit was decreed and execution levied. The Company preferred an appeal before this Court which was registered as F. A. No. 305 of 1987. A conditional stay was granted on 27.8.1987 by a Division Bench of this Court directing the Company to deposit the costs which does not even appear to have been deposited by the Company. Therefore, the stay of the operation of the decree is no longer there but the appeal is pending. The Assistant Secretary to the Government of West Bengal by a letter dated 20.8.1980 proposed to the Land Acquisition Collector, Midnapore for acquisition of the said piece of land for the benefit of the said Company and directed the latter to initiate acquisition proceedings under Part -VII of the Land Acquisition Act for the company and to submit draft notification under Sec. 4 of the Land Acquisition Act together with preliminary inspection report under Rule 4 of the Land Acquisition Company Rules, 1963 for necessary action. A notification under Sec. 4 of the Land Acquisition Act was issued on 13.3.1987. By the said notification applicability of Sec. 5A of the said Act was dispensed with in exercise of power reserved under sub -Section (43 of Sec. 17 thereof, It appears that declaration under Sec. '6 of the Land Acquisition Act was made on 3.8.1987. The writ petitioners challenged the aforesaid acquisition proceedings inter alia on the ground that there has been noncompliance with the provisions of Rule 4 of the Land Acquisition Companies Rules, 1963; no agreement as required under Sec. 39 of the Land Acquisition Act has been entered into. Since, there was noncompliance of Rule 4 of the Land Acquisition Companies Rules the Writ petitioner were not given any opportunity or hearing. These grounds were however taken in affidavit -in -reply:
(2.) The learned Trial Judge in dismissing the writ petition did not advert to the aforesaid grounds at all. It is now well settled that a plea taken in the rejoinder is competent and the Court has to take notice thereof. If any authority is needed we can quote the law laid down by the Apex Court in the case of Srila Sri Subramania Desika Gnanasambanda Pandarasnnidi vs. State of Madras & Anr., reported in : AIR 1965 SC 1578, Paragraph 17 : "That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea; in question had not been raised by the appellant in his writ petition. The reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit -in -rejoinder filed by the appellant this plea, has been expressly taken. This is not disputed by Mr. Chetty and so when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court."
(3.) The learned Counsel appearing for the respondents did not dispute the fact that no enquiry as required under Rule 4 was held. No agreement required under Sec. 39 of the said Act has been produced before us. In a case like this we are constrained to hold that the acquisition proceedings are vitiated. We are supported; in our - view, by judgments of the Supreme Court, which we shall presently notice.;