- (1.) This mandamus appeal is at the instance of the State of West Bengal and is directed against an order dated 13th November, 2009, passed by a learned Single Judge of this Court by which His Lordship partly allowed a writapplication wherein the writ-petitioner/respondent challenged a notification under Section 4 of the Land Acquisition Act, 1894 proposing to acquire 105 cottahs of land for the construction of a Fire service station thereby praying for restricting the extent of acquisition to 33 cottahs of land. Being dissatisfied, the State of West Bengal has come up with the present appeal.
(2.) The facts giving rise to filing of this appeal may be summed up thus: a) By a notification dated 14th September, 1965 issued under Section 29 of the Defence of India Act, 1962 a piece of land including pacca building thereon measuring 5 bighas, more or less, was requisitioned by the Special Land Acquisition Collector, 24 Parganas for the purpose of setting up a Fire station at a monthly rental of Rs.1800/-. On or with effect from 10th July, 1968 the Defence of India Act, 1962 became inoperative. The property was, however, not derequisitioned except for a portion of the pacca construction which was released in the year 1962 itself. b) A writ-petition was filed seeking release of the premises being CR No.3683 (W) of 1981, which was disposed of 15th September, 1983 thereby directing the State/respondent to consider the representation of the writ-petitioner. The writ-petitioner, however, preferred an appeal which was disposed of by a judgment and order dated 6th December, 1985 by directing the State Government to release the property and to make over the vacant possession to the owners. The State was also directed to pay ad hoc occupation charges subject to finalization of the actual dues. The Division Bench, however, added that the order was passed without prejudice to the right of the State to validity acquire the premises fully or any part thereof in accordance with law. c) The possession was not made over to the owners and a notice instead under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 was issued by the State which was challenged by the writ-petitioners and their second writ-petition was registered as C.O. 934(W) of 1986. The said writ-application was dismissed by an order dated 11th September, 1981. The writ-petitioners preferred an appeal being FMAT No.3236 of 1989. d) During the pendency of the appeal, both the parties arrived at a settlement in pursuance whereof a compromise petition was filed by the parties jointly in November, 1998. An affidavit on behalf of the State of West Bengal, affirmed on 18th March, 2001 by one Shri Halder, affirming the settlement arrived at between the parties where the following observations were made: "At present, therefore the concerned authority has decided to acquire only a part of the property measuring 33 cottahs 14 chittakas 26.58 Sq.ft. and to release the remaining portion of the land in favour of the owner by mutual compromise agreement subject to withdrawal of the instant appeal with reference to appellant s letter sent to State Government on 28.08.92, 28.06.95, 06.11.95 and other occasion. "It has been decided that after such withdrawal of instant appeal on the basis of the mutual compromise joint agreement as mentioned hereunder the concerned authority will have to be asked to issue Notification under Section 4 of the Land Acquisition Act, 1894 for acquisition of the property to be acquired as mentioned in the said agreement as there under and the remaining portion of the property is to be released from requisition by the concerned authority at present. The owner of the property is entitled to requisition compensation upto the date of acquisition or release of the property and accordingly a Joint Compromise agreement has been prepared". e) The said appeal was disposed of by a judgment and order dated 6th April 2001. Although the compromise petition also appears to have been listed along with the appeal but the Appellate Court did not advert to that aspect at all and decided the appeal solely on the question of legality of the order of requisition dated 10th January, 1986. The Appellate Court held that the requisition was illegal and the appeal was, therefore, allowed with a consequent direction upon the State to make over vacant and peaceful possession of the entire premises within a period of not later than 4 weeks and also to pay the occupation charge. f) The State being aggrieved by the order of the Appellate Court preferred a Special leave Petition wherein reference was specifically made to the compromise arrived at between the parties and that was one of the grounds advanced on behalf of the State before the Appellate Court for interfering with the order of the Appellate Court. The same is quoted below: "For that the learned Division Bench committed serious error by failing to take judicial notice of the negotiations held between the parties at the instance of the respondents herein to facilitate smooth acquisition of a part of the requisitioned land. It is submitted that during the course of hearing both the parties had informed the learned Division Bench about the negotiations between the parties, yet the learned Division Bench failed to take notice of such subsequent developments in regard to the dispute." g) The Special Leave Petition was dismissed summarily on 2nd May, 2001 and on the selfsame date, the State wrote to the Land Acquisition Collector, 24 Parganas (North), asking him to issue a notice under section 4 of the Land Acquisition Act for acquiring the property in its entirety measuring about 1.7510 Acres and consequently, a notification dated 3rd May, 2001 under section 4 of the Land Acquisition Act was issued and advertised in a news paper on 4th May, 2001. h) Challenging the notification dated 3rd May, 2001 and the advertisement dated 4th May, 2001, the third writ-petition was filed out of which the present appeal arises thereby describing the act of the Government as a mala fide device. i) In the meantime, an application was filed before the Division Bench of this Court alleging contempt for violation of the order dated 6th April, 2001 in which an ad interim order dated 24th July, 2001 was passed quashing the notification dated 3rd May, 2001 and disposing of the present writ-application and directing the contemners to appear in person on 24th August, 2001. j) The contemners preferred a Special Leave Petition which was disposed of by an order dated 10th January, 2002 setting aside the order dated 24th July, 2001 insofar as the same had quashed the notification dated 3rd May, 2001 and the subsequent writ-application which was disposed of by the interim order was also revived by the Supreme Court with a direction upon the High Court to dispose of the writ-application on merit. As indicated earlier, the learned Single Judge by the order impugned in this appeal has partly allowed the writ-application by describing the act of State Government in acquiring 105 cottahs of land as a colourable exercise of jurisdiction when the State itself agreed that by 33 cottahs of land its purpose of acquisition would be served.
(3.) The learned Single Judge set aside the notification of acquisition of land in excess of 33 cottahs, 14 chittaks, 26.58 Sq. ft. and held the impugned notification should remain valid for a piece of land measuring the aforesaid area and the petitioner should be entitled to compensation for the aforesaid quantity of land in accordance with law. The State Government/respondent were directed to restore the possession of the balance quantity of land within eight weeks form the date of communication of the said order. Being dissatisfied, the State Government of West Bengal has come up with the present appeal. Mr. Bose, the learned advocate appearing on behalf of the appellant, before entering into the merit of the appeal, at the very outset, proposes before this Court that his client is still ready to restrict its acquisition to 33 cottahs and odd of land provided the terms of the agreement which was filed in the earlier Mandamus-Appeal are complied with by the respondents. Those terms included the liability of the respondents to construct building etc. on the acquired land of 33 cottahs and odd at their cost. Mr. Bose submits that if the respondents are willing to comply with their liability in terms of the settlement which was agreed in the earlier Mandamus-Appeal, his client is also prepared to restrict its acquisition to 33 cottahs of land. Mr. Maitra, the learned senior counsel appearing on behalf of the respondent, however, refused to accept the aforesaid offer of Mr. Bose. Mr. Bose next contended that a Writ Court is not entitled to go into the question of the necessity of a State Government to acquire a land for public purpose. According to Mr. Bose, once the State Government is satisfied with the purpose of acquisition, a Writ Court is not competent to interfere with the decision of the acquiring authority. Mr. Bose submits that his client now wants to construct a Fire Service Station of international standard and for that reason, 105 cottahs of land as acquired was required and, therefore, this Court should not interfere with the decision taken by his client for land acquisition which is for a public purpose. Mr. Bose, therefore, prays for setting aside the order passed by the Tribunal. Mr. Maitra, the learned senior advocate appearing on behalf of the respondent/writ-petitioners, on the other hand, supported the order impugned and contended that it would appear from the conduct of the appellant that the proposal of acquisition of 105 cottahs of land was on the face of it mala fide inasmuch as on the previous day to the issue of the notification, i.e. 3rd May, 2001, it was the contention of the State before the Supreme Court that the High Court should have given respect to the agreement arrived at between the parties to acquire 33 cottahs of land. Mr. Maitra, therefore, submits that there was no justification of acquiring 105 cottahs of land and the learned Single Judge rightly set aside that part of the notification under Section 4 of the Land Acquisition Act which was in excess of 33 cottahs and odd amount of land.;