Calcutta High Court
Ratna Mukherjee & Ors vs State Of West Bengal & Ors on 26 September, 2014
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
G.A. No. 3202 of 2013
W. P. No. 1010 of 2013
Ratna Mukherjee & Ors.
Versus
State of West Bengal & Ors.
For the petitioner : Mr. Sakti Nath Mukherjee, Senior Advocate
Mr. L.C. Bihani, Senior Advocate
Mr. Anath Bandhu Dutta. Advocate
For the respondents : Mr. Ayan Banerjee. Advocate
Heard on : 25.03.2014, 18.03.2014, 01.04.2014,
08.04.2014, 17.06.2014 and 08.07.2014
Judgement on : 26.09.2014
The Court :
By this petition the petitioners have, inter alia, prayed for a writ in the nature of mandamus commanding the respondents to withdraw and cancel the notification issued under Section 4 of the Land Acquisition Act, 1894 (the Act, for short) and the declaration under Section 6 of the Act which have been annexed to the writ petition as Annexures P-3 and P-6 respectively as well as a writ in the nature of madamus commanding the respondents to de-requisition the concerned premises and to deliver peaceful possession thereof and to cancel the Award under Section 11 of the Act.
The case of the petitioners, inter alia, is that they are the owners of premises No. 3 Abdul Rasul Avenue, Kolkata. The petitioners nos. 1 and 2 are the widow and son respectively of late Amitabha Mukherjee.
By a memo dated March 23, 1972 an order of requisition under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 was forwarded to late Amitabha Mukherjee, Sanjib Mukherjee and Ranajit Mukherjee by name. By a memo dated March 14, 1972 rental compensation in respect of the said premises at the rate of Rs. 368/- per month was offered to them.
Twenty-five years thereafter, a notification was published under Section 4 of the Act proposing to acquire the said premises. The purpose disclosed in the notification was permanent office accommodation of the Public Works Department (P.W.D., for short), Government of West Bengal within the Police Station of Tollygongue.
Objection to such notification was filed on behalf of Amitabha Mukherjee, Sanjib Mukherjee and Ranajit Mukherjee, inter alia, on the ground that the premises was requisitioned earlier and rental compensation was also determined but the State had failed to restore possession even after 25 years. The acquisition was mala fide as the initial order of the Government to release the property was altered at the instance of and for the residential accommodation of a minister of the State Government. Several flats were also available to the said minister at various other prime locations in an around Calcutta rendering the purpose mentioned in the notice not to be a valid public purpose. The petitioners had referred to a note given by the then Chief Secretary requesting the minister to find out and to select some other accommodation as the concerned premises was required to be vacated in six moths' time.
The petitioners alleged that no personal hearing was given in respect of the objection under Section 5A of the Act and no copy of the order was ever served upon them. A hearing was fixed on March 24, 1999 when the petitioner no. 4 prayed for an adjournment on the ground mentioned in the application and it was allowed. Hearing was refixed on November 18, 1999. But no personal hearing was given to them. Even though in the draft Award permanent office accommodation of P.W.D was mentioned as the public purpose the petitioners had come to know that a retired Chief Engineer of the said department was residing there.
Subsequently, a declaration was made on February 1, 2000 under Section 6 of the Act, i.e., after more than two years from the date of the notification under Section 4 of the Act.
On August 3, 2001 a special notice was issued by the Land Acquisition Collector under Clauses 3 and 4 of Section 9 of the Act to the occupiers of the premises and other persons known or believed to be interested in it. Again, the Land Acquisition Collector, Kolkata by a notice dated December 24, 2001 informed late Amitabha Mukherjee that an Award enquiry would be made under Section 11 of the Act by the First L.A. Collector, Kolkata and any person claiming compensation should appear before the Collector personally or through an agent on January 8, 2002 at 1.00 p.m. It was further mentioned in the said notice that Award enquiry of the spot would be held on January 7, 2002 at 12 noon and no claim for compensation would be considered after the said date.
The petitioner no. 4 prayed for an adjournment of the proceeding fixed on January 7 and 8, 2002. It was further mentioned in the said letter that an appeal had been made by him before the Hon'ble Chief Minister of West Bengal praying for de-requisition of the concerned premises.
On may 14, 2002 a draft Award was made under Section 11 of the Act for a total sum of Rs. 35,30,254.13.
The Land Acquisition Collector, Kolkata, i.e., respondent No. 2 herein, issued a notice under Section 12(2) of the Act to the petitioners intimating them that the Award had been made by him on May 14, 2002 and the total sum payable had been deposited in the court of the learned Special Land Acquisition Collector, Alipore which had not been withdrawn by the petitioners.
By the present writ petition the petitioners have challenged the notification under Section 4, the declaration under Section 6 as well as the award made by the respondent No. 2 under Section 12(2) of the Act.
The respondent no. 2, i.e., the Land Acquisition Collector, Kolkata has affirmed an affidavit-in-opposition. It has been contended by the said respondent that prior to the expiry of the period of 25 years' requisition a proposal for acquisition was initiated by P.W.D and after concurrence of the Land and Land Reforms Department notification under Section 4 of the said Act was published in Calcutta Gazette (Extraordinary) on October 17, 1997 and in different papers on different dates including its erratum. The notification was also displayed at the spot on February 9, 1999. The Award enquiry under Section 11 of the Act was held on January 7, 2002 and a hearing took place on January 8, 2002. On the date of enquiry late Amitabha Mukherjee and others were not present and Ranajit Mukherjee sent a letter for self and on behalf of Sanjib Kumar Mukherjee praying for an adjournment of the hearing and for filing of objection. In view of the urgency, no further time was allowed and the Award was declared on May 14, 2002 for the sum as mentioned in the writ petition. The same had been sent to the Court of the learned Special Land Acquisition Judge for civil deposit due to dispute of title. The premises in question was exclusively acquired for public purpose for the office accommodation of the P.W.D. Notice under Section 5A was also served upon interested persons and persons who had filed their objections were heard and a reasoned order was passed turning down the objections raised by them. The allegations made in the writ petition were denied by the answering respondent who maintained that statutory period of two years between the publication of notification under Section 4 and the declaration under Section 6 was duly maintained. The respondent no. 2 prayed for a dismissal of the writ petition.
The petitioners filed an affidavit-in-reply to the opposition largely reiterating the statements made in the writ petition. The assertion that the proposal was initiated by the P.W.D for the acquisition of the concerned premises has been denied by the petitioners. The declaration under Section 6 of the Act was made more two years after the notification under Section 4 of the Act was published. As such the declaration is unsustainable. Subsequent publications in different papers or on this spot are immaterial and cannot be treated as remedial measures to fill up the lacunae. The petitioners have further asserted that approval of the estimated amount of Rs. 35,30,254/- on the declaration of the Award on May 14, 2002 was ex parte. The Award was also passed beyond the statutory period and as such, the provisions of Section 11 A were violated. The entire proceeding for the acquisition of the premises is required to be treated as lapsed.
The petitioners have further maintained that Corporation Taxes have although been paid by them and ownership is also with the petitioners. Thus there is no title dispute with regard to the ownership of the property as claimed by the respondents. P.W.D never had any office there and on the contrary the premises was used for the accommodation of a retired engineer's residential accommodation. He had suddenly left the premises and, thereafter, the Land Acquisition Collector had never took charge of the said premises.
It has been the persistent case of the petitioners that no notice under Section 5A of the Act was ever served upon them and though they had filed their objections, no hearing was given to the petitioners.
Mr. Mukherjee the learned Senior Counsel appearing on behalf of the petitioners, submitted that the very basis of the acquisition proceeding was not a public purpose. On the contrary it was meant for providing a residential accommodation of a minister of the State who had equally suitable alternative accommodations at various places.
I directed the respondents to produce the records in connection with the relevant Land Acquisition case. From the records, a copy of the order under Section 4A of the Act was available in which there was a reference to the earlier requisition, determination of rental compensation etc. The order further recoded that hearing was taken up ex parte on January 28, 2000 in the presence of the representatives of P.W.D. The order concluded that the purpose for which the premises was required was a genuine public purpose.
Mr. Mukherjee very strongly argued that the order under Section 5A makes no reference to the written objection filed by the petitioners. It clearly shows that the authorities had not considered the objection which was a very valuable right to the petitioners. He was more aggrieved by the total non-consideration of the objection rather than the refusal of the prayer for adjournment. According to Mr. Mukherjee the importance of an order under Section 5A of the Act is that it acts as a foundation of any acquisition proceeding. It was only thereafter that the State had proceeded to approve the proposal and the declaration was issued under Section 6 thereafter.
Mr. Gangully, the learned Additional Government Pleader appearing for the state-respondents, had argued that none appeared on behalf of the alleged owners of the premises and it was upon their prayer that the hearing was postponed on three occasions in the past. Every effort was taken by the respondents to provide these owners with an opportunity to make submissions in respect of their contentions. According to Mr. Gangully, a proposal for acquisition of land was initiated exclusively on the basis of the offer made by the Deputy Secretary of P.W.D prior to the expiry of the 25 years with the concurrence of the Land and Land Reforms Department, Government of West Bengal. Repeatedly hearing of the objection under Section 5A was adjourned at the instance of the petitioners and on the date finally fixed Ranajit Mukherjee again sent a letter requesting to postpone the hearing by two months. The representatives of P.W.D. had submitted that the department was badly in need of the premises and for that they had incurred a substantial expenditure towards the maintenance and repair of the premises for decades together. In view of the fact that the statutory period for a declaration under Section 6 of the Act was coming to a close and unless a declaration could be made by February 8, 2000 the very proceeding itself would lapse by operation of law the prayer for adjournment of the proceeding was rejected. The owners were provided with ample opportunity to substantiate their allegations and their contentions. But the objection put forward under Section 5A of the Act having not been pressed should be deemed to have been abandoned by the petitioner and the owners having not agitated the same at the hearing of the petition are bound by the order passed under Section 5A of the Act.
The respondents in support of their contentions have relied on the case of Air Craft Employees Housing Corporation Society Vs. Secretary, Rural Development and Panchayat Rai, Government of Karnataka, Bangalore, reported in Laws (SC)1996-8-136. In that case also after the publication of the notification under Section 4 of the Act objection under Section 5A was filed by the respondent on November 12, 1981. They appeared through Counsel on November 21, 1981 and sought for time to file further objections. The matter was posted for hearing on November 25, 1981. On that date he filed a memo stating that the additional objections already filed would be treated as on record and sought time for hearing. The matter was thus posted on November 30, 1981 on which date neither the respondent nor his learned counsel appeared. The Land Acquisition Officer, therefore, considered the objection and submitted his report to the Government for consideration and the Government published the declaration under Section 6 of the Act on October 28, 1982. The petitioners, thereafter, filed a writ petition in the High Court and obtained an order of stay of all further proceedings. The High Court had held that the enquiry under Section 5A of the Act was vitiated on account of failure to give opportunity of hearing to the respondents on the objections. The Supreme Court reversed the interpretation of the High Court on the legal position and held that the respondent was given three opportunities to file his objection. At his instance the case was posted for hearing on November 30, 1981 on which date neither he nor his learned Advocate appeared. Under the circumstances, the Supreme Court held that the omission to give a right of hearing is not vitiated by any error of law and consequently the declaration under Section 6 was also not vitiated.
This judgment, however, does not give much details about the order passed on the objection under Section 5A of the Act. But it specifically mentioned that the appropriate authority had considered the objection even in absentia of the respondent and filed his report. In that case, the grievance of the respondents was more with the failure to give an opportunity of hearing heard to the respondents and that is why the Supreme Court had held that in the circumstances mentioned therein the omission to give a hearing to the respondent did not vitiate the enquiry under Section 5A of the Act.
The grievance of Mr. Mukherjee, however, is entirely different from the present one. He is not so much on the rejection of his prayer for adjournment but the non-consideration of his objection.
In support of his contention, the petitioners have strongly relied on the case of Kamal trading Pvt. Ltd. Vs. State of West Bengal, reported in (2012) 2 SCC 25. In that case the Supreme Court had held that the proceedings under the Act are based on the principle of eminent domain and Section 5A is the only protection available to a person whose lands are sought to be acquired. It is the minimum safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out the authority concerned that the important ingredient, viz. public purpose was absent in the proposed acquisition or the acquisition is mala fide. The Act being an exproprietory legislation its provisions will have to be strictly construed. It has been further held by the Supreme Court that a hearing under Section 5A is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and to make a report. The report of the Collector is not an empty formality as it is required to be placed before the appropriate Government together with the collector's recommendation and the records of the case. It is only upon receipt of the said report that the Government can take a final decision on the objection. Declaration under Section 6 of the Act has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5A of the Act. Since the Land Acquisition Officer dealt with the objections in a light hearted manner the Supreme Court disapproved the same and held that he should have dealt with the objections carefully because a heavy responsibility lay on his shoulders. The Supreme Court after quoting from the report of the concerned Land Acquisition Officer observed that it could not be said that the officer had applied his mind to the objections raised by the appellant and he reproduced the contentions of the officers of the acquiring body. The objections taken by the appellants were rejected on a very vague ground. The Supreme Court had set aside the declaration under Section 6 of the Act and also disapproved the report filed by the Land Acquisition Officer and held that his report was utterly laconic and bereft of any recommendation.
Mr. Mukherjee further relied on the case of Vinod Kumar Vs. State of Hariyana and Others, reported in (2014) 3 SCC 203 where the declaration made by the Government for acquisition of the land of the appellant under Section 6 of the Act did not contain any reason for arriving at a decision contrary to that of the report produced by the Land Acquisition Collector. Therefore, the basic protection to which the land owners are entitled to in the Act through Section 5A was violated and consequently the process of acquisition of land of the appellant was tainted with mala fides and the same was liable to be set aside.
The grievance of the petitioners seems to be a substantial one as the report filed by the Land Acquisition Collector did not make any reference to the objections taken in the Section 5A proceeding. It has already been pointed out that the judgement heavily relied on by Mr. Ganguly is distinguishable on the facts of the case inasmuch as the principle grievance was with regard to the denial of opportunity. I find sufficient substance in the submission of Mr. Mukherjee that the hearing officer was bound to fairly deal with the objections irrespective of whether the order was passed ex parte. In the absence of any reference to the objection in the order impugned the State Government was not even informed that the owners had raised an objection.
Mr. Mukherjee has further criticized the declaration under Section 6 of the Act as made mechanically and in disregard of the facts on record. Even the recommendation of the Chief Secretary was ignored with impunity.
A more serious point taken by Mr. Mukherjee is that the Award was made in favour of undisclosed owners without any apportionment. Mr. Ganguly had taken the objection that in the absence of any pleading in the writ petition such submission was clearly impermissible. He submitted that no point having been taken about the validity of the Award in the writ petition alleging any infraction of law the petitioners could not take up the point at the final hearing. The points raised by the petitioners by the supplementary affidavit could not be taken into consideration as no leave was taken from this Court for filing the same. In support of his contention Mr. Ganguly relied on the case of Om Prakash Gupta -Vs.- Ranbir B. Goyel, reported in AIR 2002 SC 665, where the Supreme Court had held that ordinary rule of civil law is that the rights of parties stand crystallized on the date of the institution of the suit and, therefore, a decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the court has power to take note of subsequent events and to mould the relief if it is satisfied that the relief as claimed originally has become inappropriate or cannot be granted or taking note of such subsequent event would shorten litigation and that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. The Supreme Court further observed that if the subsequent event is purely of law the court may take judicial note of the event and put the parties on notice. But when the subsequent event is based on facts the party relying on the subsequent event is expected to have resorted to amendment of the pleadings under Order VI Rule 17 of the Code of Civil Procedure and the court may permit the party so to do as it would be necessary for the purpose of determining the real questions in controversy between them. The decision of a case cannot be based on the grounds outside the pleadings of the parities and it is the case pleaded that has to be found. Without the amendment of the pleadings courts would not be entitled to modify or alter the relief.
That apart, Mr. Ganguly further argued the question of apportionment arises for consideration in terms of Section 30 of the Act and it was open to the recorded owners to make an application before the Collector claiming a reference. The owners not having availed themselves of this opportunity the contention of the petitioners cannot be sustained.
The judgement relied on by Mr. Ganguly, i.e., Om Prakash Gupta (Supra) is clearly distinguishable. The petitioners are not trying to rely on any subsequent event. That there was no apportionment in the Award is not a subsequent event. It is true that the petitioners wanted to bring this point on record by way of a supplementary affidavit and not by amending the original pleadings. Mr. Mukherjee submitted that if submissions are made on behalf of a party on the basis of the records produced by the State they are certainly maintainable in a proceeding under Article 226 of the Constitution of India.
I find sufficient substance in the submission of the petitioners that if any point emerges from the records of a case a party has every right to draw the attention of the court to that and merely because it was not pleaded will be no ground to turn it down when the records themselves contained the foundation for such a submission. The final reliefs prayed for in the petition remained unaltered. Further to their case already made out in the writ petition the order under Section 5A and the Award under Section 11 of the Act were placed before the court in justification of the basic contentions that the acquisition is unsupportable and that the proceedings had lapsed for want of a valid Award within the prescribed time limit.
The point raised by the State respondents appear to be more technical than on merit. In the case of Tukaram Kana Joshi and Others -Vs.- Maharashtra Industrial Development Corporation and Others, reported in (2013) 1 SCC 353, the Supreme Court had held that the State must either comply with the procedure laid down for acquisition or reacquisition or any other permissible statutory mode. The state, particularly a welfare state which is governed by the rule of law cannot arrogate to itself a status beyond the one that is provided by the Constitution of India. Delay and laches are adopted as a discretion to decline exercise of jurisdiction to grant relief. The discretion of the court, the Supreme Court held, is dependant on the facts and circumstances of the case. Delay and laches are circumstances to deny the exercise of discretion; but it is not an absolute impediment. If the whole thing shocks the judicial conscience the court should exercise the discretion, more so when no third party interest has been involved.
Mr. Mukherjee further argued that notice of the Award was addressed to three persons describing them as heirs of late Ram Chandra Mukherjee. But in the actual Award there is no mention of any name and the Award in favour of the owners was totally in violation of the provisions of the Act. In the case of State of West Bengal and Others -Vs.- Messrs. Asiatic Investment Limited and Others, reported in 2009(2) CLJ 636 a division bench of this Court had held that making of the Award will be completed only after apportionment of the compensation amongst the different claimants. The division bench held that it was the consistent view of this Court that making of an Award without apportionment was invalid. The Court went that far to hold that even if the claim of the State that the Award was accepted the same could not be treated as a valid Award since an Award without apportionment was invalid.
Mr. Mukherjee has sternly criticized the state action relating to the question of disputed title. According to him there cannot be any dispute about the ownership and the right to compensation. If for about 25 years the petitioners had been getting the rental compensation there was no reason for not mentioning their names in the Award or to refer the matter to the civil court for an adjudication. Mr. Mukherjee relied on the case of Laxman Vaskar Pathara and Others -Vs.- State of Maharashtra and Others, reported in 1995 Supp. (2) SCC 748 and submitted that the question of referring the dispute to the decision of the court arises only when there exists a dispute as to apportionment. Section 30 of the Act specifically postulates that when the amount of compensation has been settled under Section 11 of the Act if any dispute arises as to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable the Collector may refer such dispute to the decision of the court. In the case relied upon by Mr. Mukherjee it has been very specifically held that it is for the Collector to come to a decision whether there is any dispute as regards the apportionment or entitlement between the parties in respect of the compensation determined under Section 11 of the Act. Necessarily there must exist a dispute before the Collector decides to make reference under Section 30 of the Act. That dispute must be raised in the Award enquiry in the presence of the parties and the parties must have an opportunity to meet the respective contentions.
That existence of a dispute is a pre-condition for making a reference to the court for adjudication is a very well-settled and age- old principle. More than five decades ago a division bench of the Patna High Court in the case of Sudhansu Kumar Ghose and Another -Vs.- Land Acquisition Officer, Patna and Others, reported in AIR 1961 Patna 150, had observed that the existence of a dispute as regards the apportionment of compensation was a jurisdictional fact and unless there was such a dispute existing the Land Acquisition Officer had no authority or jurisdiction to make a reference to the civil court under Section 30 of the Act.
The State respondents do not really want the court to enter into this aspect of the dispute, the petitioners having failed to take that point in their writ petition. Mr. Ganguly has placed reliance on the case of M. M. Sharma -Vs.- Sri Krishna Sinha and Others, reported in AIR 1959 SC 395 for a proposition that it would not be right to permit a petitioner to raise any question which depends on facts which are not mentioned in the petition but were put forward in a rejoinder to which the respondents had any opportunity to reply.
It is not entirely correct to say that the respondents had no opportunity to file any rejoinder to the supplementary affidavit which opportunity they most certainly did have, if they wanted to. But that apart if a submission is based on the records produced by the respondents, as mentioned earlier, it is always open to a party to agitate the same in a writ proceeding. After all in this petition a writ in the nature of Certiorari has been prayed for and the writ of Certiorari clearly permits the petitioners to draw the attention of any impropriety in the proceedings as will emerge from the records. Records in a Certiorari proceeding are produced for scrutiny and doing conscionable justice. In the case of Hari Vishnu Kamath -Vs.- Ahmed Ishaque and Others, reported in AIR 1955 SC 233 a full bench of the Supreme Court had held that the writ of Certiorari for quashing a decision is directed against a record and as a record can be brought up only through human agency it is issued to a person or authority whose decision is to be reviewed. As it is record of the decision that has to be removed by Certiorari the fact that the Tribunal had become functus officio subsequent to the decision can have no effect on the jurisdiction of the court to remove the record. The Supreme Court had held that Certiorari will be issued for correcting the errors of jurisdiction when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. Certiorari will also be issued when the court or tribunal acts illegally in exercise of its undue jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The court issuing the writ of Certiorari acts in exercise of a supervisory and not appellate jurisdiction.
Again the in the case of Messrs. Ghaiomal and Sons -Vs.- State of Delhi and Others, reported in AIR 1959 SC 65 a full bench of the Supreme Court held that when a superior court issues a rule on an application for Certiorari it is incumbent on the inferior court or the quasi judicial body to produce the entire records before the court along with its return. The whole object of a writ of Certiorari is to bring up the records of the inferior court or other quasi judicial body for examination by the superior court so that the latter may be satisfied that the inferior court or the quasi judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction with the limits fixed by law.
Thus, even without a supplementary affidavit since the petitioners have already prayed for a writ in the nature of Certiorari and records have been produced by the respondents this point of law canvassed on the basis of such records cannot be denied to them. Likewise a party's prayer to draw the attention of the court to a patent illegality cannot be thwarted by the technical rule of pleading. The Supreme Court in the case of Sri-la Sri Subramania Deshiko Gnanasambanda Pandarasannidi -Vs.- State of Madras and Another, reported in AIR 1965 SC 1578 had held that the view taken by the High Court that a certain plea had not been raised by the appellant in the writ petition was undoubtedly technically right as the said plea was not mentioned in the first affidavit but in the rejoinder the plea had been expressly taken. Thus when the matter was argued before the High Court the respondents had full notice of the fact that one of the grounds on which the appellant had challenged the validity of the impugned order was taken in the rejoinder.
Mr. Mukherjee next relied on the case of Seikh Md. Omer -Vs.- Collector of Customs, reported in AIR 1966 Cal 237. In that case a learned single judge of this Court had held that it was open to the High Court if it found that a rule should succeed on a point not taken initially to consider the same and allowed the application after giving the other party proper opportunities to meet the said objection. High Court's revisional powers are not so limited as to preclude it from doing justice between the parties merely because the rule was not issued at the initial stage on any particular ground or grounds concerned. The same view point has been expressed by a division bench of the Bombay High Court in the case of Union of India and Others -Vs.- Alok Exports, reported in AIR 1980 Bom. 280 where also it has been very specifically held that if a point which is not taken in the grounds or a plea not raised in the writ petition but specifically taken in the affidavit in the rejoinder such plea can be allowed to be taken at the hearing.
Thus, I find sufficient merit in the contentions of the petitioners. The objection thereto by the State respondents must necessarily fail. In view of so many anomalies and improprieties, particularly for non- consideration of the objection under Section 5A of the Act and non- apportionment in the Award, the writ petition must succeed. That apart, in the facts of the case particularly keeping in mind how the premises were used it cannot be said that the purpose of acquiring the property was public in nature. The proceeding has been vitiated by several illegalities as discussed above.
In such view of it I allow the writ petition, quash the notification under Section 4 and the declaration under Section 6 of the Act as also the impugned Award. There shall be a Mandamus directing the respondents to de-requisition the concerned premises and to deliver peaceful and vacant possession thereof in favour of the petitioners within eight weeks from the date of the communication of the order.
The writ petition is allowed.
With the disposal of this writ petition the connected application being GA No. 3202 of 2013 also stands disposed of.
There shall, however, be order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SAMBUDDHA CHAKRABARTI, J.) S. Banerjee