Kolkata Metropolitan Development Authority vs Sanmohan Chatterjee & Ors.

ANIRUDDHA BOSE, J.

The applicant before us is the State of West Bengal. In this application, the State has prayed for relief to the following effect:-

“Under the facts and circumstances stated above, the petitioner herein most respectfully prays that Your Lordships would graciously be pleased to

modify and/or to clarify the judgment and order dated 21.08.2017 passed by the Hon’ble Justice Aniruddha Bose and the Hon’ble Justice

Sankar Acharyya in F.M.A. 4805 of 2015 with M.A.T. No. 347 of 2016 in the interest of justice;

And

Pending consideration of this application, Your Lordships would graciously be pleased to pass an ad-interim order staying operation of the said

judgment and order dated 21.08.2017 till disposal of this application;

And

Pass such further order or orders as Your Lordships may deem fit and proper.â€​

The judgment and order which the State wants us to modify or clarify was delivered on 21st August, 2017, confirming the decision of a learned

Single Judge of this Court directing the State to acquire 2 bighas 8 cottahs 3 chattaks and 38 square ft. land comprised in holding no. 5K 333 under the

Police Station Kasba coming within the district of South 24-Parganas. Such prayer of the writ petitioners was allowed by the learned First Court and

subsequently confirmed by the Division Bench of which one of us (Aniruddha Bose, J.) was a party. The circumstances under which the writ petition

was brought were these. The writ petitioners, who are respondent nos. 1 to 4 in this proceeding claim to be owners of the said land. This claim has

been successfully asserted by them in a civil suit, to which we shall refer to later in this judgment. The said land had been conveyed to third parties by

the Kolkata Metropolitan Development Authority, a statutory body who is an agency of the State, without any valid acquisition process being

undertaken to divest the owners thereof of the title and possession of the said land.

The owners of the land had instituted a suit in the Court of learned Civil Judge (Senior Division) at Alipore, which was registered as Title Suit No. 142

of 1999 and subsequently renumbered as Title Suit No. 117 of 2005. The plaintiffs in that suit claimed declaration of their title in respect of the subject-

land and certain ancillary reliefs. The said suit was dismissed by the Trial Court. One of the grounds for dismissal was that the land in question stood

acquired by the State Government. The plaintiffs, however, were successful in their appeal before the First Appellate Court. The First Appellate Court

examined the question as to whether there was valid acquisition of the land by the Government of West Bengal under Section 4 of the West Bengal

Land (Requisition and Acquisition) Act, 1948 or not. We shall henceforth refer to that statute as ACT II of 1948. It is not in dispute that the

State’s claim of acquisition was founded on the aforesaid statute.

In course of the proceeding before the Trial Court, an Advocate Survey Commissioner was appointed. The First Appellate Court had considered

the report of the Survey Commissioner. We reproduce below a part of the judgment and order of the learned First Appellate Court, in which reference

has been made to that report. We have also quoted this passage in the judgment of which review is asked for:-

“…….So practically the defendants could not establish as to which land has been acquired by the Government and whether the plaintiffs’

portion i.e. the suit property has been actually acquired or not. As per Commissioner’s report each plot has two parts, one part is included in

Holding No. 333 and owned by the plaintiffs and the other parts on each of the Dags is not included in Holding No. 333 and as such plaintiffs are not

related or concerned with the said portion of land which is outside the periphery or boundary of Holding No. K-333 and if the said portions were

recorded in the names of the other persons and compensation has been given to them from the side of the Government then also the plaintiffs’ title

in the suit property cannot be evaporated. Practically the defence of both the defendants is misleading and confusing.

The State of West Bengal is no doubt the custodian of the records of all the lands and they are the authority for acquisition and requisition of any land

of the public. So, it is expected that being the welfare State or Democratic State the activities of the State should be fair and transparent and there

should not be any lacuna on transparency in the activities of the State in any manner and it is not open to the State or its instrumentalities, who are

suppose to be the embodiment of justice and reasonableness to be unjust, unfair and unreasonable even if an adversial litigation. In this case I should

rely on the decision reported in 1973(3) SCC 489 at page 599 (Ramana Vs. International Airforce Authority).

Thus being a welfare State the Government cannot take away the right of the people by hook or by crook, it must be done through legal process and

State has the duty to give guarantee to the right of the citizen. A democratic Government means Government of the people, for the people and by the

people. It does not mean the anarchy of the masses. So it is expected that the right of the citizens of India guaranteed by the Constitution of India

should be protected by the State otherwise there would be violation of Article 14 as well as Article 300A of Constitution of India which is not at all

expected from the Government.

Initially the plaintiffs filed the suit for declaration and injunction and during pendency of the suit when the Investigation Commission was started it was

detected that the vacant land was being covered by boundary wall and the Ld. Commissioner, as it appears from the Commissioner’s report

mentioned in his report that during his second visit he found that some construction was made though on earlier occasion he found the land in vacant

position. However, the defendants denied everything.

On the other hand, the plaintiffs that during pendency of the suit the defendant no. 9 has taken forcible possession violating the order of status quo and

as such the plaintiffs are entitled to get the relief for recovery of possession also. In view of the above discussion in respect of the materials on record,

I come to the conclusion that the suit of the plaintiffs should be decreed and the appeal be allowed and the judgment and decree passed by the Ld.

Court below challenged in this appeal should be set aside entirely.

In the result, the appeal succeeds. Memo of appeal has been sufficiently stamped. Hence, ORDERED that the appeal be and the same is hereby

allowed on contest with cost. The judgment and decree dated 30.06.2011 passed by Ld. 4th Court, Civil Judge Senior Division, Alipore in Title Suit

No. 117/05 is hereby set aside. The suit is decreed. The plaintiffs/appellants do get a decree of declaration of title and recovery of possession in

respect of the suit land. The plaintiffs are also entitled to get the decree of mandatory injunction as prayed for. The defendants are permanently

restrained from making any further construction on the suit land. The defendants are directed to vacate the suit land and to give khash possession to

the plaintiffs within two months from this date, failing which the plaintiffs will have the liberty to execute the order in accordance with law. The appeal

is thus disposed of.â€​

We are apprised by the learned counsel for the writ petitioners that the report was made exhibit in the suit and was admitted as evidence without

any objection. The State initially did not prefer any appeal against the judgment and decree of the First Appellate Court. The Kolkata Metropolitan

Development Authority, however, had preferred an appeal under Section 100 of the Code of Civil Procedure, 1908 before a coordinate Bench of this

Court. This appeal was registered as SAT 280 of 2014. The appeal was admitted and disposed of by a coordinate Bench on 4th August, 2015. On the

question of acquisition of the subject land, it was, inter alia, held by the coordinate Bench:-

“ When the State Government has failed to produce any document to show that the plaintiffs’ land was acquired by the State Government and

possession thereof was taken over by them and compensation was paid to the plaintiffs, we hold that the Learned Court below did not commit any

illegality in passing a decree in favour of the plaintiffs by declaring the plaintiffs’ title in respect of the suit property and by granting incidental

reliefs by way of recovery of possession and mandatory and/or permanent injunction. As a matter of fact both the Courts below concurrently held that

the plaintiffs’ predecessor-ininterest became the owner of the suit holding by purchase in the auction sale and the plaintiffs inherited the same

from their predecessor, after his death, but the Courts below could not agree with each other regarding the onus of proof of acquisition. The Learned

Trial Judge held that onus of proof that land was not acquired is upon the plaintiffs and the plaintiffs have failed to discharge the same. As such, the

Learned Trial Judge dismissed the suit. The Learned Appeal Court held that since the Government is the custodian of the land acquisition proceeding,

the onus to prove acquisition lies with the Government and Government having failed to discharge its duty in this regard, the Learned Court below, in

our considered view, did not commit any illegality in declaring that the plaintiffs' title in the suit property remains unaffected by acquisition. We agree

with such finding of the Learned First Appellate Courtâ€​.

It was further held by the coordinate Bench in this judgment:-

“But at the same time, we find some substance in the contention of Mr. Basu, learned advocate that the suit property has not been properly

described by boundaries in the schedule of the original plaint but we hold that such confusion was removed by amendment of the plaint wherein the

plaintiffs identified the suit property with reference to the Commissioner’s report. In this background, we hold that confusion may subsequently be

created in execution of the decree passed by the Learned Court below, unless we modify the decree clarifying the identity of the suit property.

As such, for removing such confusion and for better identification of the suit property, we modify the decree of the Learned First Appellate Court only

to this extent, that the report of the Investigating Commissioner including the map which was a part of the commissioner’s report, will be a part of

the decree. The appeal is thus, disposed of with the above modification of the First Appellate Court’s decreeâ€​.

The appeal of the said agency before the Hon’ble Supreme Court was dismissed as withdrawn. The following order was passed on 11th

November, 2016 by the Hon’ble Supreme Court:-

“The learned senior counsel appearing on behalf of the petitioner seeks permission to withdraw this petition so as to file review application. In view

of the request made, the special leave petition is dismissed as withdrawn with the aforesaid liberty.â€​

The writ petition from which this proceeding originates was instituted on 22nd July, 2014, before the decision of the coordinate Bench of this Court

was delivered in the appeal of the said agency under Section 100 of the Code. The agency, it was submitted before us in course of hearing, had filed a

review petition on 7th December, 2016, being RVW No. 374 of 2016 but no order has been passed in the review petition. An independent review

petition has also been filed by the State. In fact, the application for condonation of delay in connection with the review petitions still are pending. This

Court had recorded the said fact in the judgment delivered on 21st August, 2017:-

“10. The title of the writ petitioners thus stood established in Title Appeal No. 235 of 2011 and confirmed by the Coordinate Bench. We have been

apprised by the counsel for the writ petitioners that the petition of KMDA for special leave to appeal (CC No. 19300/2016) against the judgement and

decree of the Coordinate Bench in S.A.T. 280 of 2014 was dismissed as withdrawn by the Hon’ble Supreme Court on 11th November, 2016

reserving liberty for the petitioner therein, being KMDA to file review application. Mr. Gupta, learned counsel appearing for KMDA informs us that

both KMDA and the State have also preferred a petition for Review of judgment of the Coordinate Bench, but there has been no order in that Review

petition. Learned counsel for KMDA has submitted that the Review petition along with an application for condonation of delay was filed on 7th

December, 2016, and 19th December, 2016 respectively, we are also informed by learned counsel for the State that on 6th October, 2016 the State

has preferred an appeal against the judgment and decree in S.A.T. No. 235/11, along with an application for condonation of delay. All these

proceedings were instituted much after the writ petition was allowed on 2nd June, 2015 and during pendency of the appeal instituted by KMDA.

Delay, however, is yet to be condoned in that appeal. The appeal is yet to be admitted. Thus, that appeal is yet to come into life. So are the fate of the

Review petitions filed by these appellants only. Counsel representing the State and KMDA have also not sought to draw any strength from those

proceedings in assailing the judgment under appeal. On the other hand, they have argued on legality of the judgment under appealâ€​.

Turning back to the writ petition, from which this proceeding originates, the writ petitioners therein took the plea that the decree had become

incapable of being executed as construction had come up in the land in question. It was in that perspective the writ petition was instituted. In the writ

petition, the petitioners had pleaded:-

“The Defendants of the Suit/Respondents in the present Writ Application during the pendency of the Suit and Appeal have created a situation

which makes it impossible for them to restore possession of the land to the petitioners. During the pendency of the proceeding they have made

construction in violation of the injunction order, and the construction are such that it is not possible for them to restore possession. The petitioners as

Decree holders consider it difficult if not impossible to execute the Decree and get back the possession of the Suit land. After disposal of the

aforementioned Appeal and upon enquiry the petitioners have come to learn that the property involved has been allotted to Saha Institute of Nuclear

Physics and there is a residential Complex known as Meghath Saha Abasan Prakalpa-II. Inspite of best endeavour the petitioners could not ascertain

whether or not Absan Prakalpa has a separate legal entity. The petitioners are impleading the Saha Institute of Nuclear Physics as Respondent No. 5

and separately Meghnath Saha Abasan Prakalpa as Respondent No. 6 by way of abundant caution. They are being impleaded because they are at

present in occupation and are using the property involved in the present proceeding. The petitioners have caused several photographs to be taken of

the property as it now stands to demonstrate the present condition of the same and such photographs are being annexed hereto and collectively

marked as Annexure “P-3â€​.

The petitioners state that in view of the admitted title of the petitioners and the failure of the Respondents/Defendants to substantiate their plea of

acquisition the Respondents are obliged to acquire the land by taking appropriate steps under the law. The Respondents cannot deprive the petitioners

of their property save in accordance with law. The petitioners undertake before this Hon’ble Court that they will withdraw the pending Execution

Case in the event of this Hon’ble Court entertaining the Writ petition. The petitioners state that they are being deprived of their constitutional rights

under Article 300A of the Constitution and the necessity moving the present Writ Application has arisen in view of the clear announcement of the

Learned Additional District Judge in Title Appeal No. 285 of 2011.â€​

Relying on three judgments of the Hon’ble Supreme Court in the cases of Soorajmull Nagarmal Vs. State of Bihar [(2015)10 SCC 270], Laxmi

Devi Vs. State of Bihar [(2015) 10 SCC 241] and Tukaram Vs. Maharashtra Industrial Development Corporation [(2013)1 SCC 583], this Court had

confirmed the judgment of the learned First Court by which the writ petition was allowed. The learned First Court had directed the State to acquire the

property. This Court extended the time for acquisition till 31st December, 2017. It was observed and directed by this Court: “There is one factor,

however, we need to consider in relation to the direction issued by the First Court. It was contended on behalf of the State that since acquisition of

land involves different stages, the First Court ought not to have given a timeframe for conclusion of the proceeding. To this argument, our attention has

been brought by Mr. Basu to an affidavit affirmed by one Pullichalil Bava Salim, District Magistrate of 24-Parganas (South) on 7th June 2016 in which

he has given an undertaking that he would comply with the order of the learned First Court within two months in accordance with law. This

undertaking was given in a contempt proceeding brought by the writ petitioners, which was registered as W.P.C.R.C. No. 2(W) of 2016.

The undertaking, however, was given without prejudice to the rights and contentions in the pending appeal, being M.A.T. 347 of 2016. Considering this

argument on behalf of the appellants, we extend the time for initiation of proceeding for acquisition of the subject land till 21st September 2017.

Endeavour should be taken by the State to conclude the proceeding and award compensation within 31st December 2017. In the event for any

compelling reason this process cannot be completed within 31st December, 2017, for each day beyond that date the respondents/writ petitioners shall

pay compensation of Rs. 50,000/- in the event such delay is not caused by the writ petitioners directly or indirectly. Direction for payment of such

compensation comes within the realm of Constitutional Tort. Such payment shall be continued to be made till compensation is given to the writ

petitioners. The appellants, for all practical purposes are trespassers over the subject-land and their act of trespass has resulted in deprivation of

Constitutional Right of the writ petitioners for which they are entitled to be compensated. Barring this limited modification of the order of First Court,

we do not find any reason to interfere with the order of the First Court.â€​

There was an error in the judgment where it was recorded that payment of daily compensation ought to be made by the respondents/writ petitioners.

Such payment was to be made by the State and this error of clerical nature was subsequently corrected by this Court on 31st August, 2016.

The judgment of this Court delivered on 21st August, 2017 was also carried up in appeal by the State and the said agency. The State’s appeal

was registered as Petition(s) for Special Leave to Appeal (C) Nos. 26845 of 2017. The order of the Hon’ble Supreme Court passed in that appeal

is reproduced below:-

 “Heard the learned Senior counsel appearing for the petitioners. We are not inclined to interfere with the impugned order passed by the High

Court of Calcutta. Accordingly, the Special Leave Petition stands dismissed. However, learned Senior counsel appearing for the State makes a

request that for compliance of the order, time may be granted at least for a period of four months. As prayed, four months’ time is granted to

comply the order.â€​

The agency’s Petition (s) for Special Leave to Appeal (C) Nos. 26845 of 2017 was dismissed on 24th November, 2017, by the Hon’ble

Supreme Court. The order of the Hon’ble Supreme Court is reproduced below:-

“We do not find any reason to entertain this Special Leave Petition, which is, accordingly, dismissed. Pending Interlocutory Applications, if any,

stand disposed ofâ€​.

We are apprised by Mr. Basu, learned Senior Advocate that the writ petitioners have instituted a contempt proceeding before the Hon’ble

Supreme Court alleging failure to make payment within four months’ time and notice has been issued in that contempt petition on 11th May, 2018.

The said contempt petition has been registered as Contempt Petition (C) No 1041 of 2018 in Special Leave Petition(C) No. 26845 of 2017.

The present application has been filed on 23rd March, 2018. Though not specifically described as such, the application appears to be in the nature

of a review petition. That is the stand of the learned Advocate General before us as regards the character of this application. His submission is that

the land in question stood vested in terms of Section 4(2) of Act II of 1948 and the notification he has relied upon in this regard is dated 8th December,

1983. According to learned Advocate General, immediately on issue of the notification in the year 1983, the property stood vested in the State and this

factor was not taken into consideration by the learned First Court as well as by this Court in the writ proceeding. He has further made elaborate

submissions on wide jurisdiction of the Writ Court in entertaining a review petition to sustain the maintainability of this petition.

He has relied on two principles of law relating to acquisition of land by the State. The first principle he has urged is that the State cannot be compelled

to acquire a land which already stands vested. The second principle is corollary to the first principle, that State cannot be asked to return vested land

to its original owners by the Writ Court. Learned Advocate General has relied on several authorities in support of these propositions of law. We,

however, are of the view that these principles being well-established and embedded in our jurisprudence, there is no requirement of citing authorities in

support of these principles. We accept all the three principles propounded by learned Advocate General as propositions of law but the question arises

as to whether these principles can aid the State in salvaging its position in the subject controversy.

The notification to which learned Advocate General relied was before the learned First Court and forms part of a supplementary affidavit filed on

behalf of the writ petitioners only. This document appears from page 139 of the paper book in the Letters Patent Appeal decided by this Court. On the

status of the subject-land, there is a specific finding by the Second Appellate Court on this count:-

“When the State Government has failed to produce any document to show that the plaintiffs’ land was acquired by the State Government and

possession thereof was taken over by them and compensation was paid to the plaintiffs, we hold that the Learned Court below did not commit any

illegality in passing a decree in favour of the plaintiffs by declaring the plaintiffs’ title in respect of the suit property and by granting incidental

reliefs by way of recovery of possession and mandatory and/or permanent injunction.â€​

The judgment of the learned First Court in the writ proceeding as well as in the judgment of which review is sought were founded on the decree of

the First Appellate Court, which was in substance confirmed and partly modified by the Second Appellate Court. In the judgment and decree, the

acquisition aspect of the land was dealt with. That was a finding on fact. The judgments delivered by the learned First Court and the Appellate Court

in the writ proceedings in fact were based on the finding of the Courts of civil jurisdiction by which the State’s plea of acquisition was rejected.

No case has been made out by the State that such vesting had taken place in any other proceeding. So far as the notification of 8th December, 1983 is

concerned, the pleading of the State applicant in this application justifying its claim that review petition would lie is:-

“Your petitioner states that in accordance with the provision of the Land Acquisition Act under 1948 notices were issued contemplating possession

has been taken pertaining to acquisition of the said property. A gazette notification made in the Kolkata Gazette Extraordinary dated December 8,

1983 are enclosed herewith and marked as Annexure A-8 collectively to this application.â€​

What the State wants us to do in this proceeding is to indirectly invalidate the decree of the Civil Court. We do not think in exercise of review

jurisdiction arising out of a writ proceeding, such a course would be permissible. We do not find any reason to modify or review a judgment of this

Court even if we go beyond the scope of review stipulated in Order 47 Rule 1 of the Code of Civil Procedure accepting learned Advocate

General’s submission that power of review vested in the Writ Court is much wider. No new material has been disclosed. There is no case made

out of ex-facie error of law in the judgment sought to be reviewed. That judgment proceeds on the basis of finding of fact by the Court of competent

civil jurisdiction and in this proceeding we cannot venture into an exercise of upsetting such finding.

Learned Advocate General also argued that if a judgment is a nullity, having been delivered ignoring any specific statutory provision, the same can

be invalidated even in a collateral proceeding. This principle again we accept as a proposition of law. At the same time, it is our opinion that this

principle would have application only in rarest of rare cases. Otherwise, we shall run the risk of diluting the principles of res-judicata and have the

same questions of fact and law being examined and re-examined in multiple judicial fora in multiple proceedings. In this case, since the Court of

competent civil jurisdiction has come to a finding on the same question upon considering evidence, we cannot dismiss such finding to be nullity.

We also do not think the notification, on the face of it, clearly establishes vesting of the entire “dags†in respect of which the writ petitioners have

successfully asserted their ownership and title as the description of the land in the notification specifies acquisition of parts of the respective

“dagsâ€. In the passage from the judgment of the First Appellate Court quoted by us in Paragraph 3 above, we find the Court has clarified this

aspect of the dispute. It has been held in the decision of the First Appellate Court that each plot had two parts, one part of which is included in Holding

No.333 and the plaintiffs were not concerned with the other parts.

We do not find any merit in this application. The application is dismissed.

CAN 3126 of 2018

This is an application by Kolkata Metropolitan Development Authority of similar nature on similar reasoning and grounds. Learned Counsel

appearing for the said agency has adopted the argument advanced by learned Advocate General and no independent argument is advanced. For the

reasons given in our decision in CAN 2040 of 2018, we do not find any reason to take a contrary view. This application shall also stand dismissed.

No order as to costs.

Urgent photostat certified of this order be supplied to the learned Advocate for the parties expeditiously, if applied for, on usual undertaking.