Tarun Chatterjee, J. - (1.) This appeal has been preferred against the judgment and/or order passed by a learned Judge of this Court on 14th December, 1998 in Matter No. 352 of 1982. By the said order, the writ application was rejected in which the writ petitioner had challenged the acquisition proceeding being L.A. Case No. 1-D of 1981/82 including the notification under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") and the notice under Section 9 of the Act and the two other notices dated 8th April, 1992 on the ground that the acquisition proceeding was mala fide and made in colorable exercise of power conferred upon the Land Acquisition Collector and that there was no public purpose for which the premises No. 8/2, Gariahat Road including the land was sought to be acquired and also on the ground of delay in disposal of such proceeding. Before we take up the respective submissions of the learned Counsel for the parties, we may state briefly the facts leading to the filing of this appeal which are as follows : The writ petitioner/appellant was a tenant in respect of a flat in Premises No. 8/2, Gariahat Road, Calcutta (in short the "acquired property"). By a notification dated 8th May, 1975, the Land Acquisition Collector notified that the acquired property with its vacant land and Premises No. 11/1, Rustomji Street with its vacant land were likely to be needed for a public purpose that is for the construction of building for primary, secondary and intermediate Sections and for providing space for recreation, physical training and work education. for the students of Path Bhavan which is a well known school in South Calcutta for Boys and Girls. The writ petitioner/appellant and the owner of 1A, Rustomji Street, Calcutta, filed their objections against the aforesaid notification under Section 4 of the Act in accordance with Section 5A of the Act. Objections were heard. The objection of the appellant was overruled but the objection of the owner of Premises No. 1A, Rustomji Street, Calcutta was accepted. By a notification dated 24th September, 1975, the State Government declared under Section 6 of the Act that the acquired property was needed for a public purpose. On the same date, the Land Acquisition Collector, issued another notification can calling the notification made earlier under Section 4 of the Act in respect of Premises No. 1A, Rustomji Street, Calcutta. The acquisition proceeding in respect of Premises No. 1A, Rustomji Street, Calcutta was accordingly dropped by the Land Acquisition Collector on the basis of a report submitted before him intra alia on the ground that the objector who was a widow had no alternative residential accommodation and the income derived from IA, Rustomji Street, Calcutta was the only source of her income. On or about 4th of January, 1977, the authorities of Path Bhavan School for whom the acquired property was sought to be acquired had written to the concerned authorities whether the acquired property could be acquired under the Act or under the Urban Land (Ceiling and Regulation) Act, 1976. On 17th August, 1976, a letter was issued by the Ministry of Works and Housing advising that Urban Land (Ceiling and Regulation) Act, 1976 was not a bar to acquisition under the Land Acquisition Act. On 14th of February, 1978, the Land Acquisition Collector passed an order awaiting decision of the Government as to whether the Government may consider granting exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for the excess vacant land of 100.43 sq. mts. in the acquired property without awaiting for finalisation of the case under Sections 8 to 10 of the Act. On or about 27th June, 1979, a memorandum was issued by the Director of Secondary Education to Path Bhavan enquiring whether acquisition was urgent enough to justify immediate acquisition and whether the school was in a position to and was otherwise agreeable to pay the cost of acquisition. On 29th August, 1979, a letter was received from the school authorities of Path Bhavan in reply to the aforesaid memorandum that the fund position of the school as on 31st July, 1979 was Rs. 2,02,792/- so far as the secondary Section is concerned and Rs. 2,62,824/- so far as the primary Section was concerned. On 26th February, 1980, a note was sent to the Path Bhavan Authorities to District Inspector of School suggesting that the property could be acquired under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 5th of March, 1980 a note was sent by the District Inspector of School to the Director of Secondary Education by which various information's were supplied and a suggestion was made that the Government may be moved for acquiring the property under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 26th of February, 1981, a note was also sent by the Second Land Acquisition Collector to the Commissioner. Presidency Division seeking his approval of the estimated valuation of the property at Rs. 10,39,341.43/- and also whether the excess vacant land of 100.89 sq. meters might be exempted under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. On 26th June, 1981 it was noted that the acquired property was urgently needed for the development and expansion of the Path Bhavan School and the school authorities had also passed a resolution to the effect that they would bear the estimated cost that may be assessed by a Court of law as a result of waiving of the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 30th June, 1981, a note was sent by the Deputy Secretary, Government of West Bengal to the Land Acquisition Collector that the acquisition of the property in question could not be finalised on account of embargo created under the provisions of Urban Land (Ceiling and Regulation) Act. On 30th June, 1981, the Land Reforms Department of the Government of West Bengal made a note that due to general embargo under the Urban Land (Ceiling and Regulation) Act which came into force on 16th of February, 1976, the land acquisition proceeding in question had to be kept in obeyance from being finalised under the Act. The said note contained as follows : "In view of the recommendation of the Education Department with the approval of their MIC of waiving provision under the Act and for finalisation of the said proceeding under the L.A. Act we may agreed to the finalisation of the proceedings without awaiting for determination of ceiling limit and to issue a revised order under Section 7 and instruction to collector as per drafts placed below which may issue after MIC has timely seen and approved." On 21st July, 1981 the Land Acquisition Collector wrote to the school authorities requesting them to deposit a sum of Rs. 10,34,342/- as costs of acquisition of the property. On 21st August, 1981, the Second Land Acquisition Collector wrote to the Path Bhavan Authorities regarding non payment of money pursuant to the earlier order dated 21st July, 1981 and as a result thereof delay was caused in finalising the land acquisition proceeding. On 15th December, 1981 a further request was made to the Path Bhavau Authorities for placement of funds in which it was recorded that acquisition proceeding had been held up for want of funds. Before 15th December, 1981 there was some confusion whether the property in question was going to be acquired either under the Urban Land (Ceiling and Regulation) Act, or under the provisions of Land Acquisition Act. Only on 15th December, 1981 it was disclosed by the Authorities that they decided to abandon the acquisition proceeding under the Land Acquisition Act and instead thereof decided to acquire the property in question under the Urban Land (Ceiling and Regulation) Act, 1976 as they were of the view that there was a bar to proceed with the acquisition proceeding under the Land Acquisition Act in view of the general embargo under the Urban Land (Ceiling and Regulation) Act, 1976. But they were also of the view that Urban Land (Ceiling and, Regulation) Act, only apply to the vacant land and according to the respondent authority, there was only 100.43 sq. mts. excess vacant land in the premises. The school authorities did not have sufficient funds for the above acquisition when declaration under Section 6 was issued. On 11th March, 1982, the writ petitioner/appellant received a notice dated 6th March, 1982 purporting to be under Section 9 of the Act calling upon the writ petitioner to appear on 28th March, 1982 to state the nature of interest if any, that the writ petitioner/appellant had in the land for objection to the said notice. The said notice mentioned that the land in question was being acquired for public purpose for construction of building for Path Bhavan School. An objection to this notice was given by a solicitor of the writ petitioner/appellant in which it was stated that the acquisition proceeding initiated by the Second Land Acquisition Collector was arbitrary and illegal and mala fide. According to the writ petitioner/appellant, the issuance of notice under Section 9 of the Act after the lapse of 7 years had indicated the mala fide intention on the part of the authorities in the matter of acquiring the said property. In the reply to the said notice, it was also stated that the fact that the notice in respect of 1A, Rustomji Street was dropped showed that the acquisition proceeding initiated in respect of the said property only was arbitrary, malafide and illegal. Only thereafter the writ application, challenging the aforesaid proceeding, was moved on 16th of April, 1982, and a learned Judge of this Court had issued a rule and further proceeding in the acquisition proceeding was directed to be stayed till the disposal of the rule. The learned Judge by the impugned judgment had discharged the rule and vacated the interim order and accordingly, it is this judgment or order of the learned Judge which has been taken in appeal.
(2.) We have heard the learned Counsel for the parties. We have also carefully examined the judgment under appeal and also materials on record. After considering the respective submissions of the learned Counsel for the parties and after examining the materials on record including the judgment under appeal, we are of the view that in the facts and circumstances of this case, in learned Trial Judge was fully justified in discharging the rule by holding that the proceeding initiated for acquisition of the property was taken in accordance with law.
(3.) Before us, Mr. Saktinath Mukherjee, appearing on behalf of the writ petitioner/appellant contended that since there existed no explanation at all for long delay to finalise the proceeding and concretize the alleged public purpose, the Court must invariably conclude that no public purpose existed or was in sight which could be put in practical shape and, therefore, it must be held that there was ample ground for the Court to hold that the State Government had exercised power which was colorable and accordingly, the entire proceeding for acquisition under the Act must be held to be bad, arbitrary and without jurisdiction. Mr. Mukherjee further contended that the valuation of the property could be arrived at on the basis of the date of notification under Section 4 of the Act and the writ petitioner/appellant by such long delay would be denied a statutory right to get the market price of property as the valuation of the same would be obviously pegged down to their disadvantage and, therefore, in view of the above, the entire proceeding for acquisition of the property must be struck down by the Court. In support of this contention, Mr. Mukherjee relied on three decisions which are reported in 1994 (l) SCC 44 (Ramchand v. Union of India) , AIR 1982 Punjab and Haryana 519 (Radheshyan v. State of Haryana ), and AIR 1981 Gujarat 67 (Shankerbhai Mahijibhai v. State). There is no quarrel about the principles laid down in the aforesaid three decisions. In our view, the facts disclosed herein above would safely indicate that the delay in taking steps in the acquisition proceeding must be condoned in view of various steps and actions taken by the authorities in the matter. In the case of State of U.P. v. Smt. Tista Devi and Ors., AIR 1986 Supreme Court 2025 , it has been held by the Apex Court of our country that the post notification delay was not by itself sufficient to render the acquisition proceeding invalid. That is to say, mere delay, if the same is properly explained, cannot vitiate the acquisition proceeding. From the facts stated herein earlier, we are of the view that the facts involved in the present case would invite us to hold that there was no delay in taking steps in the acquisition proceeding and even if there was some delay that should be condoned in the facts and circumstances of this case. Let us, therefore, deal with the facts involved from September, 1975 when Section 6 notification was issued and when the notice under Section 9 of the Act was served on the writ petitioner/appellant that is in the month of March, 1982. If this delay of about 7 years can be said to have been properly explained by the State authorities, in that case, the acquisition proceeding cannot be struck down on the ground of delay. There is no dispute that the original notification was issued in respect of two properties one of which was released from acquisition subsequently. Since one of the properties was released from acquisition that is 1A, Rustomji Street, Calcutta, no alternative was left to the State Government but to amend the notification issued under Section 4 of the Act. In the month of February, 1976, the Urban Land (Ceiling and Regulation) Act came into force. At that stage, it was uncertain what would be the effect of the Urban Land (Ceiling and Regulation) Act on. properties under acquisition. For that uncertainty, the State Government directed all land acquisition proceedings to be stayed until such uncertainity was cleared. The said uncertainity was eventually referred to the Government of India. Clearance was received by the State Government from the Central Government in August, 1977. Subsequently, step under Section 7 of the Act was taken by which the Collector was to take order for acquisition. The measurement and plan making of the land had to be taken under Section 8 of the Act. A revised order under Section 7 of the Act was necessitated to be passed because of the decision of the Government about non applicability of the Land Ceiling Act. Thereafter, the Path Bhavan Authorities was asked to put in the funds after preparation and approval of estimated cost. The School authorities did not have the fund needed at that time and also asked the State Government to acquire the property under the Urban Land (Ceiling and Regulation) Act finally. In the month of January, 1982, the Path Bhavan Authorities decided to proceed with the acquisition proceeding. In the month of March, 1982, the required notice was served on the writ petitioner/appellant. From the facts stated above, we are of the view that the delay in proceeding with the acquisition proceeding for the period from September, 1975 and March, 1982 was fully explained and accordingly delay in taking steps to finalise the acquisition proceeding must be condoned. In Gujarat State Transport Corporation v. Valji, Mulji, Soneji and Ors., AIR 1980 Supreme Court 64, the Supreme Court held in the facts and circumstances of that case that the delay occasioned was not un-reasonable, although delay was more than 15 years between the notification under Section 4 and the declaration under Section 6 of the Act. Before parting with the question of delay, we must deal with the decisions cited at the bar on behalf of the writ petitioner/appellant in support of the contention that as there was inordinate delay in issuing the notice under Section.9 of the Act from the date of declaration under Section 6 of the Act, the acquisition proceeding must be struck down. Let us first deal with the decision in the case of Ramchand v. Union of India, 1994 (1) SCC 44. In that decision, the Supreme Court found on the available materials from the record that there was no explanation except that there was several cases and as such in normal course, the Supreme Court held that there was bound to be delay in making the awards. It is true that in that decision the explanation for delay was not accepted by the Supreme Court, but at the same time, the acquisition of the acquired property of the said decision was not struck down only a direction was made for payment of additional amount of compensation which should be made in terms of Aflatton' s case (1975) 4 SCC 285. In view of our findings made herein above that the materials on record would show that the explanation given by the respondents on the question of delay from the date of issue the notice under Section 9 of the Act and the date of declaration under Section 6 must be accepted and, therefore, in our view, this decision of the Supreme Court is clearly distinguishable on facts. Next we deal with the decision of the Full Bench of the Punjab High Court in the case of Radheshyam v. State of Haryana, AIR 1982 Punjab and Haryana 519. The principles laid down in the said decision of the Punjab and Haryana High Court cannot be disputed. It is true that delays between notification under Section 6 and notice under Section 9 are to be viewed in the overall context from the initiation of the proceedings and not from the narrow terminus merely of the date with Section 6 notification. It is well settled that each case depends on its facts. In view of our conclusion made herein before that the delay in issuing the notice under Section 9 of the Act from the date of declaration under Section 6 of the Act has been explained sufficiently by the State respondents, we do not think that in the facts and circumstances of this case, the decision of the Punjab and Haryana High Court can lead us to hold that the entire acquisition proceeding must be quashed and or struck down on the ground of delay. Next we consider the decision of the Gujarat High Court in the case of Shankerbhai Mahijibhai v. State, AIR 1981 Gujarat 67 . Again this case is distinguishable from the facts involved in the present case. In that decision also a Division Bench of Gujarat High Court has struck down the acquisition proceeding on the ground of delay. In paragraph 24 of the said decision, the Division Bench gave their reasons for striking out the acquisition proceeding which, in our view, should be quoted, paragraph 24 runs as follows : "There is nothing on record in the instant case to show while notice under Section 9 was issued after a lapse of 41/2 years from the date of declaration under Section 6 except that the addendum was issued sometime in December, 1979. We have already held that the addendum was purely elucidatory and did not bring about any change in the area or the identity of the land under acquisition. Secondly need to issue the addendum could not have withheld the issuance of notice under Section 9. Assuming that we are wrong in making this observation addendum could have been issued in 1977 when the town planning scheme became a part of Bombay Town Planning Act. We, therefore, see no reason why more than 41/2 years should have been taken in the issuance of notice under Section 9. Such a long lapse of time subjects the land owner to a number of unforeseen and avoidable hardships.;