S.S.Nijjar, C.J. - (1.) These appeals (FMA Nos. 672 of 2004 & 671 of 2004) have been filed by the State of West Bengal (hereinafter referred to as "the State") and Bengal Peer less Housing Development Co. Ltd. (hereinafter referred to as "The Bengal Peerless") against the judgement of the learned Single Judge dated 18.5.2004 passed in W. P. No. 10051/2002/2004 whereby the learned Single Judge has disposed of the writ petition by setting aside the land acquisition proceedings being L.A. Case No. 4/14 of 2000-2001 initiated by the State in respect of the land owned by the respondents. FMA No. 790 of 2006 has been filed by Smt. Krishna Majumdar and others. This common judgment will dispose of all the aforesaid three appeals, as the facts and the law involved are common.
(2.) Two facts as called out from the judgement of the learned Single Judge and the pleadings of the parties are as under: Respondent Nos. 1 to 4 claim to be owners of 6.78 acres of land. According the respondents, they purchased the aforesaid land with a view to develop the same by construction of an International School, a Cultural Centre, I. T. Park and Housing Complex. They had been in negotiations with the West Bengal Housing Board (hereinafter referred to as "The Housing Board"). However, before any project could be finalised, notification under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") was issued on 12.12.2000 seeking to acquire the land measuring 5.9275 hectares (12.67 acres) for implementation of a Housing Scheme. The respondents were given to understand by the officers of the Housing Board that in the event, they did not prefer any objection to the Notification, the Housing Board would be inclined to sanction the project of the respondents and also allow them to participate in the same. The respondents, therefore, filed only a token reply on 8.3.2001 (Annexure P-2 to the writ petition) but did not seriously object to the proposed acquisition proceedings. Thereafter, declaration under section 6(1) of the Act dated 29.11.2001 was published in the "Asian Age" on 4.12.2001. Subsequently, the respondents came to know that the land had been acquired for the purpose of handing over the same for development and implementation of a Housing Scheme by the Housing Development Co. Ltd. (hereinafter referred to as "The Bengal Peerless"). Thereafter, the respondents also came to know that the Collector had passed an award, L. A. Case No. 4/14 of 2000-2001 on 22.9.2003. The respondents came to know about it when notice was received by them on 16.2.2004. Through this notice, respondent Nos. 1 to 4 were informed that since the actual ownership and names of awardees could not be ascertained, the compensation amount has been deposited under section 31(2) of the Act with the learned Special L. A., Judges' Court, Alipore. These respondents, therefore, filed Writ PetitionNo. 10061 (W) of 2004 challenging the acquisition proceedings. In the writ petition, it has been pleaded that the land acquisition proceedings have lapsed by efflux of time. It was pleaded that the declaration under section 6 of the Act had been published on 29.11.2001 and the award has been made on 22.12.2003. Since it was beyond a period of two years, entire acquisition proceedings have lapsed by operation of section 11A of the Act. It was also the pleaded case of the petitioners that the declaration was not published in the locality as required under section 6(2) of the Act. Therefore, the date of declaration will be deemed to be 4.12.2001 at the latest, when the same was published in the newspaper. Since the acquisition proceedings had lapsed by operation of law, the question of the petitioners withdrawing the compensation amount or challenging the same does not arise. However, without prejudice to their rights and conditions in the writ petition, the petitioners have been advised to file by way of abundant caution applications under section 18 of the Act. It has been pleaded that under the garb of "public purpose", the authorities have acquired the lands for private purpose and for the benefit of the Bengal Peerless. In the land acquisition proceedings, the nature of the proposed housing scheme has not been specified. Therefore, it cannot be said to be a valid public purpose. In any event, the respondent Nos. 1 to 4 had evinced similar, if not, better interest for development of the land. Since the implementation of the project by Bengal Peerless is commercial in nature, there is no difference between the projects that were submitted by respondent Nos. 1 to 4 and the Bengal Peerless. The purported acquisition of land is colourable exercise of power. This according to respondent Nos.1 to 4 is evident from the fact that the name of Bengal Peerless, was not mentioned in the Notifications under sections 4 & 6. It was mentioned for the first time in Notification under section 9. This has deprived them of their valuable right to file objections under section 5A of the Act. Neither the State nor the Bengal Peerless had filed any affidavit-in-reply. However, the entire record of the land acquisition was produced before the learned Single Judge who has proceeded to decide the writ petition on the basis that "all the allegations made in the writ petition have been deemed to be treated as denied". On examination of the record, the learned Single Judge has come to the conclusion that the Notification under section 4 of the Act, was duly made on 4.12.2000 and published in two newspapers i.e "the Asian Age" and "Ganashakti" on 8.12.2000 and 10.12.2000, respectively. It has also been held that declaration under section 6 of the Act has been published in the Calcutta Gazette on 29.11.2001 and two daily newspapers in English and Bengali i.e. "the Asian Age" and "Ganashakti" on 4.12.2001. It is further observed that the substance of the declaration was given publicity in the locality on 11.1.2002. Furthermore, the survey has been completed under section 8 and notice under section 9 had been given in the locality on 3.7.2002 and 4.7.2002. It is further noticed by the learned Single Judge that in the initial declaration made under section 4 of the Act in the very first line, it has been stated that the land is likely to be needed for a public purpose viz. for implementation of a housing scheme. The learned Single Judge concludes that it appears from the Notification that the Government wanted to take the land for "public purposes". The learned Single Judge has further come to the conclusion that it was necessary for the Government to comply with the provisions of both the Land Acquisition Act and the West Bengal Housing Board Act, 1972 (hereinafter referred to as "the 1972 Act"). It is accepted by the learned Single Judge that the Government used to acquire land and construct residential complex in and over such land through the Housing Board. However, since the amendment in the Housing Board Act in the year 1993 by introduction of section 27A, the Government can also entrust a Joint Sector Company to execute a housing scheme with the previous approval of the State of Government. On perusing the record, the learned Single Judge observed that the proposal for the Housing Scheme has been initiated at the instance of the Bengal Peerless. Neither an approval of the Government was taken for the purpose of entrustment of the Scheme for exeqution not it appears from the file that the Government was satisfied or the Housing Board was satisfied that for public interest, the land is to be entrusted with the Joint Sector Company i.e. Bengal Peerless to execute the Scheme. The Government also failed to prepare any budget for the execution of the Scheme. The Scheme also does not disclose as to how many units/flats would be constructed and out of the said flats, how many are meant for LIG and MIG Sectors. It is concluded by the learned Single Judge that the provisions of the 1972 Act were not at all followed. It is further held that it appears from the record that the intention of the Government is to arrange for profit of the Bengal Peerless. Therefore, the acquisition was not for a public purpose. Learned Single Judge has held that the whole process of acquisition is mala fide as it appears from the record.
(3.) At this stage, it may be noticed that W. P. No. 10002(W) of 2002 was also filed by some other owners of the land challenging the same acquisition. The aforesaid writ petition was dismissed by the learned Single Judge (Justice Chattopadhyay) on 16.9.2003. Therein it has been held that the land has been acquired for a public purpose in accordance with the provisions of law. It has been categorically observed that the acquisition proceedings are not vitiated on the ground of colourable exercise of power. It has been categorically held that the State was not seeking to acquire the land in question for a company. This judgment was brought to the notice of the learned Single Judge. It has, however, been distinguished by the learned Single Judge on the ground that certain correspondence between the Bengal Peerless and the Housing Board was not brought to the notice of Justice Chattopadhyay. The learned Single Judge further observed that from the judgment, it appears that the Counsel for the petitioners conceded that the land is being acquired for public purpose.;