Bimal Kumar Shah (deceased) vs The State of West Bengal & ORS.

The present Writ Petition is filed not only for quashing, cancelling and / or rescinding the acquisition of premises number 106C, Narkeldanga North Road, Kolkata 700 011 but also for correction of a mutation record maintained by the Kolkata Municipal Corporation by deleting the name of the Corporation as owner and inserting the name of the Petitioner therein. The other consequential reliefs in the form of a compensation and forbearance from dealing with and / or encumbering the said property and / or making any construction are also sought for.

It is not in dispute that originally the said property belonged to the father of one Birinchi Behari Shaw, who executed a Deed of Settlement during his life time settling the said property in favour of his son, Birinchi Behari Shaw, who was then minor. The property which was settled in favour of the said Birinchi Behari Shaw (since deceased) comprised of a plot of land measuring more or less 2 bighas 18 kathas 6 chitaks and 40 square feets together with the bungalow and a tank.

After the death of the settlor till the settlee attained majority, the said property was managed and administered by his elder brother Bansi Behari Shaw and in couRs.of time let out to the property film production company, namely, Aurora Film Corporation.

After the death of the said Bansi Behari, the Birinchi Behari mutated his name as recorded owner in the assessment book of the Kolkata Municipal Corporation and cleared all the municipal dues in respect thereof. Even the Kolkata Municipal Corporation, vide letter dated 07.04.2000 informed that there is no outstanding dues on account of property tax in respect of the said premises.

According to the Petitioner, the said Birinchi Behari was all along exercising his right as owner of the said premises not only upon payment of the property tax but also remained in peaceful possession thereof. It is alleged that an attempt was made in the year 2009 at the behest of some influential people of the locality to enter upon the said premises with an intent to raise constructions. The said owner resisted the aforesaid attempt and to redress his grievance approached this Court by filing Writ Petition being W.P.126 of 2009.

It is an admitted fact that the Corporation did not file any Affidavit-inOpposition in the said Writ Petition, which ultimately came up for disposal on 17th September, 2009. The Corporation was represented in the said Writ Petition and since an allegation as to interference in possession was alleged in the said Writ Petition, the Court while disposing of the Writ Petition directed the Municipal Commissioner to hold an enquiry to ascertain whether the land of the Petitioner has been encroached upon or not and whether the Writ Petitioner is in lawful possession thereof.

A further direction was passed upon the Corporation not to make any construction over the said property. in the month of July, 2010 the Petitioner received information from the vicious circle of the locality that the Corporation has changed the name of Birinchi Behari from the category of the owner and inserted its name as owner thereof. The copy of the letter of intimation subsequently obtained by the said Birinchi Behari corroborates the aforesaid fact as the assessee number allotted therein remains the same.

The second Writ Petition was filed being WP981of 2010 not only for correction of the entries made in the assessment record but also to restrain the Corporation from interfering with the peaceful possession of the said owner. The said Writ Petition was disposed of on 8th January, 2015 recording the concession on behalf of the Kolkata Municipal Corporation as they are unable to controvert the statements made in the said Writ Petition.

It was further observed that the Kolkata Municipal Corporation Authorities could not place any material to establish its right to carry on the construction at the said premises.

Ultimately, the said Writ Petition was disposed of restraining the Corporation Authorities by an order of perpetual injunction from giving any effect or further effect to the wrong recording of its name as owner thereof and remove its men and materials from the premises concerned within two weeks from the date of the communication of the said order. It is pertinent to record that this Court expressly recorded in the said Writ Petition that the Corporation could not establish its right in the said property and therefore should remove its name in the record and bring it to its original position.

The said order dated 8th January, 2015 passed in W.P.981 of 2010 was challenged in an Intra Court Appeal (APO51of 2015) before the Division Bench of this Court. An argument was advanced before the Division Bench that the Affidavitin-Opposition could not be filed as the records were misplaced and seeks for an opportunity to file Affidavit-in-Opposition by extending the time.

Though it is not reflected in the order of the Division Bench passed on 23rd November, 2015 when the said appeal was disposed of that the factum of acquisition of the property was disclosed yet both the Petitioners as well as the Corporation are uniform in their submission that because of the aforesaid disclosure the Division Bench ultimately set aside the order dated 8th November, 2015 and extended the time to file Affidavit-in-Opposition upon payment of costs assessed at Rs.50,000/- to be paid within three weeks.

Since the Corporation paid the said cost and in view of the order of remand by the Division Bench of this Court, the Writ Petition was taken up and the Affidavit-in- Opposition filed by the Corporation was taken on record. On the day when the Writ Petition was listed for hearing on remand, a prayer was made by the Advocate of the said Writ Petitioner to withdraw the Writ Petition with liberty to file afresh on the self same cause of action.

By order dated 11th August, 2016, the said Writ Petition was dismissed as not pressed with liberty to file a fresh Writ Petition on the self same cause of action. The present Writ Petition is filed not only challenging the mutation effected by the Corporation but also the purported acquisition to be bad, illegal and dehors the provisions of the Kolkata Municipal Corporation Act, 1980.

It would be pertinent to record the events which happened either in couRs.of the said appeal before the Division Bench or thereafter before the second Writ Petition was dismissed as not pressed and a liberty was granted to file afresh. The said Birinchi Benhari Shaw died on 17.02.2015 leaving and publishing his last Will and Testament dated 4th November, 2014 appointing the present Writ Petitioner as Executor to the said Will.

The application for probate has been filed on 16th March, 2016. According to the Corporation, the probate has not been granted as yet. However, the Petitioner says that the probate has been subsequently granted but nothing is put on record before this Court.

The factum of death of the said Birinchi Behari and no attempt having made to substitute the present Petitioner as an Executor to the said Will, embolden the Corporation to take a plea that the leave granted in the second Writ Petition to file fresh Writ Petition on the self same cause of action is illegal and nullity as the Writ Petition had already abated.

The aforesaid stand of the Corporation is retorted by the Writ Petitioner that since the power of attorney of the Birinchi Behari was unaware of his death and was advised that the stand of acquisition of the property by the Corporation constitutes a fresh cause of action, a separate Writ Petition is required to be filed and even if the said Writ Petition stood abated, the issue of acquisition being not the subject matter therein, an independent Writ Petition is maintainable.

In the instant Writ Petition, the Petitioner has not only challenged the action of acquisition by the Corporation being violative of the several provisions of the Act but a prayer is also made for correction of the mutation record which was directly and substantially an issue in the second Writ Petition.

Mr.Shaktinath Mukherjee, learned Senior Counsel, appearing for the Writ Petitioner submits that the Corporation cannot exercise the power of eminent domain being a Statutory Authority to acquire the property in the manner as has been done in the instant case. According to Mr.Mukherjee, Section 352 of the Kolkata Municipal Corporation Act, 1980, though vested power upon the Corporation to acquire the property for the purposes indicated therein, yet the mode of acquisition provided under Section 537 of the said Act is required to be followed.

Mr.Mukherjee strenuously argued that the mode of acquisition adopted by the Corporation is de hors to the provisions of the said Statute and therefore the same is liable to be quashed and set aside.

Mr.Mukherjee would further contend that the Corporation being a Statutory Authority cannot act in derogation with the power provided in the Statute which is the source of its existence and must act within the boundaries thereof.

Mr.Mukhejee vehemently submits that the Corporation Authorities sought for an opinion from the legal officer who is one of the senior advocates of this Court, who opined that the manner in which the said property is sought to be acquired is not the legal and proper and if the Corporation Authorities still banks upon to proceed with the acquisition, their action would be determined by the Court.

It is, thus submitted that the Corporation Authorities acted contrary to the said opinion and in blatant violation of the provisions of the Statute and therefore the so called action of acquisition should fail. On the other hand, Mr.Alok Ghosh, learned Counsel appearing for the Corporation submits that the instant Writ Petition is not maintainable in view of the abatement of the earlier Writ Petition.

According to him, the leave to file a fresh Writ Petition on the self same cause of action is bad, illegal and a nullity having passed in favour of the Writ Petitioner therein, who was dead at that relevant point of time.

Mr.Ghosh further submits that the Corporation has absolute power to acquire the land for public purpose by invoking the provision contained under Section 352 of the Act and having done so, the Petitioner cannot challenge the same. It is, further submitted that the possession was taken after serving a notice upon the recorded owner and in terms of the order passed by the Municipal Commissioner, who is a competent authority under the Statute. It is ardently submitted that the factum of acquisition was known to the then owner, who also filed an application raising objection to the said acquisition and therefore the Petitioner cannot challenge the order of acquisition after such a long time.

Mr.Ghosh thus submits that the documents disclosed in the Affidavit-in-Opposition would corroborate that the action for acquisition was taken by following the procedure of law and therefore the instant Writ Petition should be dismissed.

From the stands of both the parties pleaded and submitted before this Court the points which assume significance and require to be decided in the instant Writ Petition are firstly, whether the instant Writ Petition is maintainable as the leave granted in the earlier Writ Petition is of no consequence in the eye of law having passed in an abated proceeding; and secondly, whether the entire action of the Corporation to acquire the property in question is illegal, invalid and in contravention to the provisions of the Kolkata Municipal Corporation Act, 1980. Point No.1: Admittedly, the W.P.No.981 of 2010 was filed by the said Birinchi Behari Shaw (since deceased) challenging the action of the Corporation Authorities in deleting his name from the assessment register and incorporating the name of the Corporation as owner.

It is also not in dispute that the said Writ Petition was disposed of on 8th January, 2015 when the said Writ Petitioner was alive directing the Corporation to remove its name from the said record and insert the name of the said Writ Petitioner and further restrained the Corporation to remove its men and materials from the premises concerned and / or giving effect or further effect to the wrong recording of its name as owner thereof in any manner whatsoever.

The said order was assailed before the Division Bench in APO51of 2015 and was set aside permitting the Corporation to file Affidavit-in-Opposition subject to the payment of costs of Rs.50,000/within three weeks from the date of the order. The order of the Division Bench was passed on 23rd November, 2015. It is an admitted fact that the said Birinchi Behari died on 17.02.2015 leaving and publishing his Will dated 4th November, 2014 appointing the present Writ Petitioner as Executor to the said Will.

It is no longer res integra that the proceeding would abate in the event right to sue survives on the heirs and legal representatives of the deceased and an application for substitution is not filed within the prescribed period of limitation. The abatement is automatic and does not require any express order to be recorded by the Court.

Order 22 Rule 9 of the Code of Civil Procedure envisages that where the suit has abated and dismissed under the said order, fresh suit on the self same cause of action shall not lie. Possibly, the aforesaid provision embolden the Corporation to take a plea that once the second Writ Petition abated in absence of any application for substitution, any order passed therein is illegal and a nullity and shall be of no consequences in the eye of law.

There cannot be any doubt to the aforesaid proposition of law as the order passed in a suit, which is not alive in the eye of law, cannot have any legal efficacy. The aforesaid stand, in my view operates as double edged sword. Admittedly, the order disposing of the Writ Petition was passed when the said Birinchi Behari Shaw was alive. The said order was carried to an Appellate Court making the said dead person as a party respondent. The Division Bench disposed of the said appeal upon setting aside the Order of the Single Bench on 22nd November, 2015 when admittedly the said Birinchi Behari Shaw was dead. The carriage of proceeding lies with the Appealant, who in this case was the Kolkata Municipal Corporation.

If the stand of the Corporation is that the order granting leave to file a fresh proceeding on the self same cause of action is per se bad having passed in an abated proceeding, the same treatment is to be given to an order of the Division Bench as the appeal was non-est having filed against the dead person. It is no longer res integra that the order and decree passed against a dead person is a nullity.

Apart from the above, this Court does not find that the present Writ Petition is otherwise bared as it has been filed on an independent cause of action, which was not the subject matter of dispute in the second Writ Petition. the second Writ Petition was filed on the cause of action relating to the action of the Corporation in altering the entry made in the assessment register without affording an opportunity of hearing to the erstwhile recorded owner.

Though a plea of acquisition was taken for the fiRs.time before the Appellate Court, yet the same cannot be a subject dispute in the Writ Petition after remand. As per the stand of the Corporation the Writ Petition was not alive on the date when the leave was granted by the Court to the Petitioner to file the fresh Writ Petition and therefore the filing of the Affidavit-in-Opposition in a dead proceeding cannot be construed that the stand taken therein constitutes of part of the pleading and assumes the subject matter of dispute therein.

This Court, therefore, does not find that the plea of demurrer taken by the Corporation is sustainable and therefore decided against them.

Point No.2: Conceptually, the rights of the individual and the Statutory Authorities are distinct, separate and stands on a different pedestal. An individual can exercise all rights unless forbidden by law. On the other hand, the Statutory Authority cannot do anything unless authorized by the law.

The root of the Kolkata Municipal Corporation emanates from the Kolkata Municipal Corporation Act enacted to amend and consolidate the laws relating to municipal affairs in the city of Kolkata.

The Municipal Corporation is a public institution for self-government, intended to improvement and maintain the civic amenities and local administration of the affairs of State, its powers and functions as a social and political organizations. The Kolkata Municipal Corporation is a creature of a Statute and its powers are limited and circumscribed by the various provisions provided therein.

The reference can be made to a Division Bench judgment of this Court in case of Asian Leather Limited & Anr. versus Kolkata Municipal Corporation & ORS.reported in (2007) 3 CHN476whrein it is observed:-

At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory corporation, it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statutes, which creates it.

(See: Manimuddin Bepari versus Chairman of the Municipal Commissioner, Dacca, reported in 40 CWN17. Though the Act was primarily intended to provide public amenities, regulate the land and properties within the city of Kolkata and impose taxes but further empowered the Corporation to acquire any land and property for public purposes or its utilities or for other allied purposes. I am not invited to decide the exhaustive and elaborate powers of the Corporation provided in the said Statute but my scrutiny is confined to the powers conferred upon the Corporation to acquire the property of an individual.

The Kolkata Municipal Corporation Act is divided into several parts and each part is again sub divided into various chapters concerning the various duties and responsibilities entrusted upon the Corporation under the said Act.

One could find from the parts and the chapters of the said Act containing the specific provision to acquire the land for specified purposes.

Section 352 is included in Part VI, which is basically dealing with the town planning, land and land use controls and Chapter 21 thereof is relatable to streets and public places.

The aforesaid Section vested power upon the Kolkata Municipal Corporation to acquire any land required for the purpose of obtaining, widening, extending or otherwise improving any public street, square, park or garden or of making a new one together with any building standing upon the land or outside the regular line or projected wreck line of the public street or for the purpose of laying out or making a public parking place. But the said powers are subject to the other provisions of the Act.

Section 363 of the Act, which is included in the same part and the chapter, makes imperative on the Corporation to pay compensation to the owner of any building or land acquiring for the public street, square, park or garden under the provisions of the said chapter. The aforesaid two Sections are quoted as under:

Power to acquire lands and buildings for public streets and for public parking places:The Municipal Commissioner may, subject to the other provisions of this Act-

(a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street, square, park or garden or of making a new one, together with any building standing upon such land; (b) acquire, in relation to any land or building as aforesaid, such land with building thereon outside the regular line or the projected regular line of such public street; (c) acquire any land for the purpose of laying out or making a public parking place.

Compensation to be paid: (1) Compensation shall be paid by the Corporation to the owner of any building or land acquired for a public street, square, park or garden under the provisions of this Chapter : Provided that any increase or decrease in the value of the remainder of the property, of which building or the land so acquired formed part, likely to accrue from the setting back to the regular line of a public street, shall be taken into consideration in determining the amount of such compensation.

(2) If any additional land, which will be included in the premises of any person permitted or required by an order under sub-section (2) of section 360 to set forward a building to the regular line of a public street, belongs to the Corporation, such order shall be a sufficient conveyance to the owner of such land; and the price to be paid to the Corporation by the owner for such additional land the other terms and conditions of the conveyance shall be set forth in such order.

(3) The Corporation shall pay compensation in respect of land or building acquired under this Chapter at the following scale: (i) for land or building with annual value determined at an amount not exceeding Rs.3,000 in respect of the portion acquired. ---- Fifteen times the amount of the annual value; (ii) for land or building with annual value determined at an amount exceeding Rs.3,000 in respect of ---- Rs.45,000 plus ten times the amount of the annual value in excess of Rs.3000. the portion acquired. It is, therefore axiomatic to say that the Corporation enjoins the power to acquire the land or a building of any individual within its periphery limits for the purpose indicated in the said chapter with further obligation to pay the compensation to the individual subject to the provisions of the said Act.

The aforesaid observations assumes importance and significance because of an argument advanced by the Corporation that the other provisions of the Act should not be resorted to when the said chapter containing several Sections are exhaustive and self contained code.

Chapter VIII, which relates to properties of the Corporation imbibed within itself, Chapter 32 pertaining to acquisition and disposal of the property of the Corporation. Section 535 of the Act is incorporated conferring the right upon the Corporation to acquire any movable and immovable property or an interest therein within and outside the limits of Kolkata. But such right is circumscribed and limited when an expression for the purpose of this Act is incorporated therein.

Section 536 of the said Act provides the mode and mechanism of acquiring the property by an agreement and Section 537 thereof is activated in the event of failure to acquire the property by agreement. The aforesaid Sections are quoted as under:

Acquisition of property:The Corporation shall, for the purposes of this Act, have power to acquire and hold movable and immovable property or any interest therein, whether within or outside the limits of Kolkata.

Acquisition of immovable property by agreement:(1) Whenever it is provided in this Act that the Municipal Commissioner may acquire, or whenever it is necessary or expedient for any purpose of this Act that the Municipal Commissioner shall acquire, any immovable property, such property may be acquired by the Municipal Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices or at rates or prices not exceeding such maxima as may be approved by the Mayor-in-Council either generally for any class of cases or specially in any particular case.

(2) Whenever, under any provision of this Act, the Municipal Commissioner is authorised to agree to pay the whole or any portion of the expenses of acquiring any immovable property, he shall do so on such terms at such rates or prices or at rates or prices not exceeding such maxima as may be approved by the Mayor-inCouncil either generally or in particular as aforesaid.

(3) The Municipal Commissioner may on behalf of the Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation and the provisions of sub-sections (1) and (2) shall apply to such acquisition.

Procedure agreement:- when immovable property cannot be acquired by (1) Whenever the Municipal Commissioner is unable under section 536 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purpose of this Act, the State Government may, in its discretion, upon application of the Municipal Commissioner, made with the approval of the MayorinCouncil and subject to other provisions of this Act, order proceedings to be taken for acquiring the same on behalf of the Corporation, as if such property or easement were land needed for public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894).

(2) Whenever in application is made under sub-section (1) for the acquisition of land for the purpose of providing a new street or for widening or improving an existing street, it shall be lawful for the Municipal Commissioner to apply for the acquisition of such additional land immediately adjoining the land to be accupied by such new street or existing street as is required for the sites of buildings to be erected on either side of the street, and such additional land shall be deemed to be required for the purposes of this Act.

(3) For the purpose of acquisition of immovable property under this section, the Land Acquisition Act, 1894, shall be subject to the amendment that the marketvalue of any land or building to be acquired shall be deemed, for the purpose of sub-section (1) of section 23 of that Act, to be the market-value determined according to the disposition of such immovable property at the date of declaration under sub-section (1) of section 4 thereof in respect of such immovable property.

(4) The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall, subject to all other provisions of this Act, be forthwith paid by the Municipal Commissioner and thereupon such property shall vest in the Corporation. A Statutory Authority discharges its duties provided under the Statute, which creates it and if such Statutory Authority is a Municipal Corporation taking birth for municipal affaiRs.a transaction must be public benefit.

The power to acquire property without the owners consent is the power of eminent domain and such right is the right of a sovereign State to be exercised through its regular agencies, to reassert, either temporarily or permanently, its domain over any portion of a soil of the State including private party without the owners consent on account of public exigency and for public good. It confers right to resume possession of the property in the manner directed by the Constitution and the laws of the State whenever the public interest requires it.

The right to property is neither a basic feature nor a basic structure of the Constitution under the Article 300A of the Constitution of India but is recognized as Constitutional Right. The word law used under Article 300A of the Constitution must be an Act of a Parliament or State or a Rule or Statutory Order having force of law. No person can be deprived of the property except by authority of law.

It is too fundamental that the deprivation of property can only be by acquisition or requisition or taking possession of for the public purpose in exercise of the power of eminent domain which IS inherent and inbuilt in the sovereign public exercise by an authority and not by an executive fiat or order.

The word property used in Article 300A of the Constitution must be understood in the perspective in which the sovereign power of eminent domain is exercised by the State and the property expropriated. Article 300A postulates that no person shall be deprived of his property save by authority of law, meaning thereby that if there is no law, there cannot be any deprivation.

There is no quarrel to the proposition of law that the Corporation being a Statutory Authority is empowered to acquire the property both within and outside its limits for various purposes relatable to the public and for their benefits. But such power should be exercised within the limited contour provided in the Statute.

The legislatures were conscious in incorporating various Sections in different parts and the chapters while incorporating the expressions subject to other provisions of the Act to avoid any conflict in its invocation and operation. Therefore, Section 352 of the Act can stand alone on its independent footing but abridged by the other provisions of the Act meaning thereby the provisions contained in parts VIII, chapter 33 thereof. There is a clear distinction between a right to acquire the property and the mode of such acquisition. The expression authority of law enshrined under Article 300A of the Constitution not only includes the power of the sovereign or the Statutory Authorities to acquire the property but also to adhere to its mode as well. The mode of acquisition is provided under Section 536 of the Act empowering the Municipal Commissioner to acquire the property of an individual by agreement. Sub Section 2 thereof further authorizes the Municipal Commissioner to enter into such agreement on such terms at such rates or prices not exceeding such maxima as may be approved by the Mayor-in-Council.

There is no ambiguity in harmonizing Sections 352, 363 and 536 that the Municipal Commissioner may acquire the property of an individual by way of an agreement upon payment of the price not exceeding maxima with the approval of the Mayor-in- Council. Sub Section 1 of Section 537 of the Act is explicit in the sense that in the event the Municipal Commissioner is of the opinion that the land or the building of an individual is required for public purposes and needs to be acquired but such acquisition cannot be made by agreement, the approach can be made to State to acquire the same.

Though the power of eminent domain is vested upon the State but exercise of such power is under Land Acquisition Act, 1894. The aforesaid sub-Section is a clear exposition of the legislative intent to exercise the power of eminent domain by the State for and on behalf of the Municipal Commissioner as the same is needed for public purposes. By virtue of incorporation of the Land Acquisition Act, its invocation by the State clearly envisages that in the event the Municipal Commissioner fails to acquire the property of the individual by agreement, it cannot exercise the sovereign power of eminent domain but has to approach the State Government.

The facts disclosed by the Corporation in the Affidavit-in-Opposition evidently shows that the acquisition was made by invoking Section 352(a) of the said Act by exercising the power of eminent domain. There was a doubt in the mind of some of the Municipal Authorities whether such sovereign power can be exercised by the Statutory Authority like the Corporation and a legal opinion was sought by the Chief Municipal Law Officer from one of the Senior Advocates.

The Senior Advocate, however, doubted over the said exercise of power and also highlighted the anomalies in such action. On the basis of such opinion the Chief Municipal Officer made the following remark:Doubt has arisen in the past on the question whether the Municipal Commissioner could under Section 352(a) of the CMC Act, 1980 straghtway compulsorily acquire any land by giving notice to owner / occupiers also in contract Newspapers and pay compensation under Section 363(3) of the Act.

The former Ch.

Mpl.

Law Officer had referred the question to Mr.P.K.Ghoah Senior Advocate for his opinion.

A copy of his opinion is placed below for perusal.

I have nothing more to add.

If in spite of the anomalies in the statute pointed out by Mr.P.K.Ghosh the Mpl.

Commissioner proceeds to take possession of the land in question, I have no comment to make.

If the aggrieved party moves the Court, then the Court will resolved the anomalies. It is curious to note that despite the same, the then Mayor put a note that the Corporation may proceed to acquire the property by invoking powers under Section 352(a) and the note of the Chief Municipal Law Officer was simply kept in the file.

It would further appear from the subsequent noting of the Chief Municipal Law Officer put on 08.01.1991 wherein it is noted that the act is silent as to when the possession is to be taken either before or after the payment of compensation under Section 363 and according to him, the possession can only be taken after the payment of compensation under Section 363(3) of the said Act.

Despite the aforesaid noting, the Municipal Commissioner passed an order of acquisition on 18.01.1991 directing to acquire the subject land under Section 352(a) of the Act with immediate effect and the possession should also be taken immediately. There is a serious dispute whether the possession was in fact taken in terms of the said order of the Municipal Commissioner or not.

However, it is seen from the notes put on 16.03.1991 that the possession was taken. The fact remains that no compensation has been paid as yet. The Corporation has further disclosed a letter allegedly written by the recorded owner on 14.11.1991 wherein it is categorically stated that the possession has not been taken.

Though it appears from the noting that the possession was taken way back in 1991 but the record maintained by the Corporation was not altered and / or corrected and in fact the Corporation continued to accept the property tax paid by the recorded owner in respect of the said property. Even in the year 2000, the Corporation mutated the name of the Birinchi Behari Shaw and also issued the No Due Certificate to him. It is only in the year 2010 the Corporation deleted the name of the said owner and incorporated its name as owner thereof. Yet, showing the huge outstanding on account of property tax with interest and penalty in the letter of intimation issued on 17.07.2010.

The explanation is sought to be offered that there is no synchronization between the two departments of the Corporation and a mistake has been committed, which cannot confer any equity or right in favour of the Petitioner. I am unable to pursuade myself to agree with such explanation. For the sake of argument, if it is accepted that possession was taken way back in 1991, there was no occasion to accept the property tax for more than a decade without altering the entries made in the assessment register.

This Court, therefore, finds that the Corporation acted blatantly in violation of the statutory provision in acquiring the property as such acquisition should have been facilitated by approaching the State under Section 537(1) of the said Act. The entire action concerning the acquisition of property by invoking Section 352(a) of the Act is per se illegal, invalid and in clear contravention to the provisions of the Act and are hereby quashed and set aside. No further reliefs as claimed in the Writ Petition is hereby granted and thus left to the parties to explore the remedy provided under the Act.

The Writ Petition is partly allowed. There shall further be no order as to costs. Upon appropriate application(s) being made, urgent photostat certified copy of this judgment, may be given expeditiously subject to the usual terms and conditions.