Gojer Brothers Private Ltd. & Anr vs The State Of West Bengal & Ors on 19 June, 2013

[Cites 52, Cited by 8]

Calcutta High Court

Gojer Brothers Private Ltd. & Anr vs The State Of West Bengal & Ors on 19 June, 2013

Bench: Arun Mishra

              IN THE HIGH COURT AT CALCAUTTA
                    Civil Appellate Jurisdiction
                           Original Side


                           G.A.NO.3050 OF 2012
                            APO 126 OF 2012
                             C.C.141 OF 2012
                            W.P. 1931 OF 2005

                 GOJER BROTHERS PRIVATE LTD. & ANR.
                              VERSUS
                  THE STATE OF WEST BENGAL & ORS.

                                  With

                           APO 124 OF 2012
                          W.P.1634 OF 2005
                 GOJER BROTHERS PRIVATE LTD. & ANR.
                              VERSUS
                  THE STATE OF WEST BENGAL & ORS.




       For the approval of :

       The Hon'ble Justice Arun Mishra, Chief Justice


................................................................................................

The Hon'ble Justice Joymalya Bagchi ................................................................................................ Date of Judgment : 19th June, 2013 Whether the judgment should be sent to the reporters for reporting ? (Yes/No) Whether the reporters be allowed to see the Judgment ? (Yes/No) 2 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE G.A.NO.3050 OF 2012 APO 126 OF 2012 C.C.141 OF 2012 W.P. 1931 OF 2005 GOJER BROTHERS PRIVATE LTD. & ANR.

VERSUS THE STATE OF WEST BENGAL & ORS.

With APO 124 OF 2012 W.P.1634 OF 2005 GOJER BROTHERS PRIVATE LTD. & ANR.

VERSUS THE STATE OF WEST BENGAL & ORS.

For the Appellants : Mr. S.B.Mookherjee, Sr.Advocate with Mr. A.Guha Thakurta, Mr. D.Bera, Mr. S.Bhunia and Syed Adil Murshed, Advocates For Respondent No.3 Mr. S.Ghosh with Mr. Debraj De and Mr. Sudip Deb, Advocates For Respondent No.4 : Mr. S.Talukdar, Sr.Advocate with Mr. A.Mukherjee and Mr. S.Chattopadhyay, Advocates For State-respondent : Mr. Sakya Sen with Mr. Pratik Prakash Banerjee, Advocates BEFORE THE HON'BLE CHIEF JUSTICE ARUN MISHRA THE HON'BLE JUSTICE JOYMALYA BAGCHI Date : June 19, 2013 3 THE COURT (oral order) (Per Arun Mishra, C.J.): The intra court appeals have been preferred as against the judgment dated 3rd February, 2012 passed by the single Judge whereby and whereunder two writ applications had been dismissed. The first writ application was filed questioning the legality of the Notification issued under Section 4 of the Land Acquisition Act 1894 on 10-6-2005 and in the second writ application, declaration made under section 6 of the said Act on 22nd September, 2005 has been questioned.

In W.P. 1634 of 2005, Notification issued under Section 4 of the Land Acquisition Act had been questioned on various grounds. Firstly, it was made in colourable exercise of power ; there was no public purpose for acquisition. In view of the series of litigations that had taken place between the parties and directions issued by the Court to hand over vacant possession of the subject property to the landlord based on the ejectment decree, the mode of acquisition of the subject land and building and direction for allotment of the same in favour of respondent No.3 could not have been made by the State Government. Property was deemed to be in possession of the Receiver and Court's permission was needed to acquire land which was not obtained. There was direction issued by the Court to hand over possession of the property to the landlord with the help of police 4 authorities. Prior to initiation of acquisition proceedings, twice directions were given by the competent Court to hand over possession of the subject property to the appellants. There were other objections raised with respect to the issuance of Notification being biased and invalid and authorities' competence as to the issuance of the same has been questioned. In the other writ application being W.P.No. 1931 of 2005, the decision taken by the appropriate authority on the basis of inquiry made under section 5A for issuing Declaration under section 6 of the Act has been questioned, inter alia, on the ground that the selfsame Land Acquisition Collector and the Joint Secretary issuing the Notification under Section 4 has approved the objections. Thus it was not proper exercise of power and the higher authority could not have taken the decision on the basis of the report. Other grounds taken were akin to the earlier writ application. It is submitted that the acquisition proceedings is fraught with bias and there was violation of principles of natural justice. It is also submitted that acquisition could not have been made for a minority educational institution.

The facts indicate that on 25th June, 1955 a deed of lease was executed in respect of a portion of the ground floor measuring 4500 sq.ft.(approx.) of Premises No.220/2, A.J.C Bose Road, Kolkata in favour of the lessee for a period of 16 years commencing from 21st 5 March, 1955 where the lessee set up a school. On 20th July, 1964 the appellant Gojer Brothers Pvt. Ltd. purchased the entire premises with the subsisting lease. On 23rd August, 1969 the appellant Gojer Brothers filed a civil suit being Title Suit No.100 of 1969 against the said lessee for eviction and possession of the property. On 24th April, 1970 the lessee constituted a trust to take over and manage the said school which was already there functioning from the said premises in the name of Central Model School. On 21st March, 1971 the lease expired by efflux of time. The application filed by the Managing Committee of the Central Model School was abandoned and dismissed. Ultimately the said suit was decreed on 8th May, 1979 directing the lessee to deliver possession of the subject premises to the appellant. On 8th June, 1979 the appellant Gojer Brothers made an application for execution of the decree. Against the decree passed by the trial court a first appeal was filed by the lessee being F.A. No.14 of 1980 and there was an order of stay of execution of the proceedings.

In June, 1987 Central Modern School Guardians Association filed a writ petition being W.P. No.4394 of 1987 complaining about the mismanagement of the school and inter alia prayed for appointment of an administrator etc. 6 On 28th February, 1990 the first appeal was dismissed for want of prosecution. The order staying the execution proceeding stood vacated and the executing court directed issuance of writ of possession and the bailiff duly executed the decree and gave possession to the petitioner on 6th June, 1990. On the same day an order was passed in the writ petition in the absence of the decree-holder for restoring possession to the Special Officer with the help of police authorities. The said order was implemented and the Special Officer took back possession from Gojer Bros with the help of police.

On 8th June, 1990 the then existing Special Officer with another person were appointed as Receivers, inter alia, to run the school in the same building until further orders.

On 11th August, 1994, Title Suit No.59 of 1994 was filed in the court of the First Assistant District Judge at Alipore by the school and four members of the Managing Committee for declaration of School's right, title and interest in respect of the self-same property and declaration of decree passed in Title Suit No.100 of 1969 being bad and illegal and for permanent injunction. In the said suit, plaintiffs' prayer for ad interim injunction was rejected. Against such refusal a miscellaneous 7 appeal was preferred being Misc. Appeal No.312 of 1994, wherein an order of status quo was passed on 12th August, 1994.

On 15th July 1996, Misc. Appeal No.312 of 1994 was allowed and the order of status quo was confirmed. On 3rd October, 1996 the order dated 15th July, 1996 passed in appeal was stayed by the High Court in revisional application, as mentioned.

In the meantime, on 18th June, 1996 the W.P. No.4394 of 1987 came up for final hearing and after a contested hearing it was dismissed, inter alia, directing the Receiver to hand over possession to Gojer Brothers subject to the result of the pending appeal being F.A. No.14 of 1980. No appeal was preferred and the order became final.

On 25th July, 1997 hearing of the appeal being F.A. No.14 of 1980 was concluded and judgment was reserved. Before the judgment could be delivered by the Division Bench on 7th August, 1997 the School filed a suit before the Sealdah Court, claiming right, title and interest in respect of the said premises by way of adverse possession and obtained an ex parte order of status quo.

On 15th September, 1997 an appeal was preferred by the lessee and the same was dismissed confirming the decree dated 8th May, 1979. On 6th April, 1998 a Special Leave Petition was filed by the lessee against the aforesaid order which was dismissed by the Hon'ble Supreme Court.

It is submitted that on 20th April, 1999 the proceedings before the Sealdah Court came up for hearing and the earlier order of status quo passed on 7th August, 1997 was confirmed and appeal against the said order dated 20th April, 1999 was preferred and the order was set aside on 20th April, 1999. Due to obstacle created by the School, the Receiver could not hand over possession of the suit premises to the petitioner.

Meanwhile, Md. Alamgir and others filed a writ petition against the State of West Bengal and an ex parte order of status quo was obtained on 26th February, 2001 and ultimately by an order dated 14th May, 2001 the writ petition was also dismissed.

On 16th March, 2001 as miscellaneous case being Misc. Case No.10 of 2001 was filed before the Alipore Court by one Harpal Singh claiming to be a trustee of Gurunanak Educational Trust named Central Modern School and an ex parte ad interim order was obtained. As a result, the Receiver appointed by the 9 High Court could not implement the order handing over possession of the suit premises to the petitioner.

On 22nd June, 2001 the Misc. Case No.10 of 2001 under Order 21 Rule 97, read with Section 151 of the Civil Procedure Code, filed by Harpal Singh on 16th March, 2001 was allowed. In August 2001, Gojer Brothers filed an appeal against the order of the District Court. The judgment and order passed by the trial court was set aside on 29th May, 2004. The second appeal was preferred in this Court. Stay was granted on 12th July, 2004.

It is further submitted that on 18th April, 2005 the School filed a review application. The review application was dismissed as withdrawn.

On 18th March, 2005, the second appeal was dismissed. Various attempts by the School to utilise the office of the Land Acquisition Collector were resorted to for acquisition of the land.

It is further submitted that a Special Leave Petition being SLP(Civil) No.12003 of 2005 was filed by Harpal Singh against the order dated 18-3-2005 but the said S.L.P.was dismissed by the Supreme Court on 12-7-2005. It was observed that the directions given by the High Court in the impugned order for delivery of possession must now be carried out with police 10 help, if necessary. The review petition filed was also dismissed by the Hon'ble Supreme Court on 18-7-2005.

The Government of West Bengal on 23rd April, 1971 passed an order of requisition of the suit premises under sub- section(1) of Section 1 of the West Bengal Premises Requisition and Central (Temporary Provisions) Act, 1947. By a communication dated 29th April, 1971 the First Land Acquisition Collector informed the Secretary of the School that the suit premises was requisitioned and possession would be given on 30th April, 1971 for running of the School. Later on, the requisition was withdrawn on 23rd June, 1971.

It is further submitted that by Memo No.580-SE(S)/7B- 1/2005 the Joint Secretary to the Government of West Bengal intimated the approval for acquisition for the purpose of regularising the possession of the land by Central Model School. On 12th May, 2005 in spite of the fact that Central Model School was in illegal possession of 4500 sq.ft. on the ground floor, the purported acquisition was made in respect of 20 Cottahs and 6 Chittacks of land. Request was made by the Joint Secretary to the Land Acquisition Collector to proceed with the acquisition of the land upon publication of notification under section 4 and Declaration under Section 6 of the Act. The aforesaid proposal 11 was vetted by the Land & Land Revenue Department of the Government of West Bengal. A preliminary enquiry report was submitted by the Survey Valuer before publication of Notification under section 4 of the Act on 9-6-2005. It has preceded the issuance of Notification under section 4 of the Act whereas Section 4 lays down that it is to be effected after issuing notice to the owners who are the occupiers. Notification under section 4 of the Land Acquisition Act was issued on 10-6-2005 for acquisition of an area of 0.1365 hectares of land at 220/2, A.J.C.Bose Road, Kolkata for the purpose of providing permanent accommodation to Central Model School. On 22-6- 2005, objection in writing was submitted before the Land Acquisition Collector by the appellants through their counsel.

On 11-7-2005 the Land Acquisition Collector, Kolkata gave notice to the counsel for the appellants to appear before him on 20-7-2005. In terms of the notice date 11-7-2005 the advocate for the appellants was present before the First Land Acquisition Collector Kolkata and placed the representation earlier made on 22-6-2005 by way of objection and filed certain papers including the Court's orders passed in civil litigation.

It is submitted that request was made by the Joint Secretary to Land Acquisition Collector on 12-5-2005 to proceed 12 with the acquisition of the land in hot haste and by abuse of the statutory provisions and even the Joint Secretary had invited the Land Acquisition Collector to evade true compliance of provisions contained in Section 5A of the Act.

The appellants have questioned the legality and validity of the Notification issued under section 4 and Declaration made under section 6 of the Land Acquisition Act. It is submitted that the respondent No.3 was in illegal and unauthorised occupation of the premises. Still then, Notification was issued to acquire the premises. Respondent No.3 is a private school and its earnings and profits are being shared by private persons. The school is not a government aided school. No Government has any control in running administration and management of the same. State of West Bengal was not connected in any manner with the school, nor had any interest and State Government could not have acquired the property. Possession had been handed over illegally and the sole object was to scuttle the orders of law courts. The purpose for which acquisition has been made is not a public purpose. The action smacks of malafide. The appellants could not have been deprived of the benefit of the decree. Notification issued under section 4 of the Act was bad in itself since Sri Kali Sadhan Bandopadhyay 13 being the First Land Acquisition Collector and Ex-officio Joint Secretary to the Government of West Bengal could not have made such Notification under section 4 and Declaration under section 6 of the Act. The process was initiated at the dictation of the Joint Secretary. The initiation of process at the dictation of the Joint Secretary was absolutely bad and illegal. Rules of business have not been followed.

Proper hearing under section 5A was not given to the appellants. It was further contended that Central Model School is managed by Guru Nanak Educational Trust which is a minority educational institution and acquisition could not have been made for the purpose of abovenoted institution.

The State Government being the respondent No.4 as well as the respondent No.3 filed affidavits in opposition to the said writ applications. The averments made in the writ applications were denied contending that School was receiving Dearness Allowance by way of grant-in-aid. Thus, it is receiving grant in aid and on account of token contribution which has been made by the State Government and the acquisition was otherwise also for public purpose of education. Acquisition proceedings had been undertaken legally and the litigation between the parties and the ejectment decree did not debar the acquisition 14 proceedings from being made. The acquisition did not become impermissible due to the litigation between the parties. The inquiry report was rightly prepared by the Land Acquisition Officer and it was approved by the authority who was delegated with the power of Joint Secretary to exercise the power by the appropriate government in the matter of approval of the acquisition. Thus, there was no prejudice caused to the appellant-petitioners. Other grounds were also denied.

The Single Bench by the impugned order has dismissed the writ applications upholding the validity of the acquisition. It had been held that that an acquisition was made for public purpose and there was no bar created by the litigation which has taken place between the parties on the land acquisition and other submissions have also been rejected. Hence the appeal has been preferred.

It was submitted by Sri S.B.Mookherjee, learned Senior Counsel appearing on behalf of the appellant that the Central Model School did not receive any Government aid and Hon'ble Supreme Court had confirmed the decree for ejectment; petition under Order 21 Rule 97 filed had been dismissed. There was direction issued by the Hon'ble Supreme Court to hand over the possession to the decree holder thus the resorting to the 15 mode of land acquisition was not permissible. The property was in "custodia legis" so to initiate or continue with the land acquisition proceeding without the leave of the Court would be fatal and the award is liable to be quashed. In this regard, he has relied upon Gopeswar Prasad Agarwal Vs.State of West Bengal & Ors., AIR 2000 Cal 159. It was further submitted that it was the bounden duty of the Court to restore the status quo ante. Gojer Brothers was dispossessed vide an illegal order of the Court. Direction was issued on 18.6.1996 in the writ petition directing the Receivers to hand over possession, which had not been implemented. It was further submitted by the learned Counsel that the Receiver is technically in possession, he has not yet been discharged nor has he handed over such possession to Gojer Brothers. The Supreme Court had passed the order on 12.7.2006 to hand over possession with knowledge of the purported notification dated 10.6.2005 issued under Section 4 of Land Acquisition Act. Thus there is violation of the order of the Hon'ble Supreme Court in continuing the acquisition proceeding. It was further submitted by the learned Counsel that no person is authorised to take any step in violation of the Court's order and the same would not have any legal effect. In this regard, reliance has been placed on the decision of the Supreme Court in Writ 16 Petition No.108 of 1976 Madan Mohan Pathak And Anr. Vs. Union of India And Others and Writ Petition 174-177 of 1976, Ram Parkash Manchanda And Others Versus Union of India And Others, 1978 (2) SCC 50.

Learned Senior Counsel appearing on behalf of the petitioner further submitted that in the matter in question, provisions contained in Section 4 of the Land Acquisition Act has not been complied. Regularization of possession for which the letter was written on 12.5.2005 by the Government could not be said to be a public purpose. The school was not in lawful possession and it was never a tenant. The order directing possession to be given to Gojer Brothers with the police help was ignored. Letter does not mention that enquiry under Section 5A of the Land Acquisition Act has to be conducted. As such it shows that Joint Secretary was not in favour of invoking Section 5A of the Act. Action of Government to pay Rs.10/- to convert the private proposal into a Government proposal is tainted with mala fide intention and colourable exercise of power.

It was further submitted that the notice under Section 4 is invalid for the reason that no enquiry was made in accordance with provisions of law. Thus there is clear violation of the provision of Section 4. No notice was given to the occupier 17 under Section 4 to enter upon or vacate the property. A private proposal has been converted into a Government proposal which is not permissible. It was further submitted by the learned Counsel on behalf of the appellant that provisions contained in Section 5A of the Land Acquisition Act has not been complied with. Representation has not been considered by the LAO or by the Government. No effective hearing was given to Gojer Brothers, no report was communicated to the Gojer Brothers by the LAO. LAO did not apply its mind and mechanically came to the conclusions. The enquiry under Section 5A was conducted and approved by an officer of the same rank and on the same date, on which report was submitted was illegal. For accepting the recommendation of LAO, no discussion has been made, no reasons or findings have been recorded. The order of approval cannot be said to be in terms of Section 5A. There was political interference also as it appears from the letter from the Principal to the Minister-in-charge, Settlement Committee dated 18.2.2006. Reliance has been placed on various decisions in respect of Section 5A. Declaration under Section 6 has also been questioned. Reference under Section 18 had been made because of period of limitation, the reference for enhancement of compensation was made without "prejudice". Unreal valuation 18 had been made. The public purpose declared under section 6 is mala fide and colourable exercise of power.

It was further submitted by learned Counsel on behalf of the appellant that acquisition has been made in such a fashion that a small portion has been left on either side which makes area left out as unusable and unsaleable. The amount has not been properly apportioned in the award. In the award finding that Gojer Brothers would have to establish title to the property in order to receive compensation money in Civil Court was clearly mala fide conduct of the State/respondent. Apportionment of the compensation to the five tenants was illegal, as there was only one tenant. With respect to possession, it was submitted that there is no document filed to show how possession was taken only certificate had been placed on record. Possession certificate which has been produced cannot be said to be enough proof of taking over possession on 25.05.2009, and the document, in fact, was merely prepared and signed, but actual possession was never taken, it was only a paper transaction. There was cyclonic weather in South Bengal including Kolkata, and possession could not have been taken on the aforesaid date. One cannot build something on nothing. In this regard learned Senior Counsel has referred to observation 19 made by Lord Denning Macfoy Vs. United Africa Co. Ltd. 1961(3) All. E.R. 1969.

It was submitted by Sri S. Ghosh learned Counsel appearing on behalf of respondent no. 3 that the Central Model School is a minority education institution set up in the year 1955. Then land acquisition was initiated in accordance with law. The acquisition for school/educational institution was actually acquisition for a public purpose. Whether the school is public school or private school, acquisition for both is for a public purpose. It was further contended on behalf of respondent no. 3 that even if it has the effect of over reaching a pre-existing decree which has been affirmed, it does not vitiate acquisition as held in State of A.P. & Ors. vs. Goverdhanlal Pitti, 2003 (4) SCC 739. Even if the acquisition is for regularization of illegal possession of the school, the same is still for public purpose and such acquisition has been upheld in First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr. 2002(4) SCC 160. There is no mala fide or colourable exercise of power. It is for the State to decide property is required for public purpose, the acquisition for a public purpose is not vitiated when the State makes token contribution of Rs.10/- only towards acquisition. Enquiry under Section 5A was properly held, objections which 20 were filed, have been considered and overruled. It is not necessary to furnish copy of the report and Collector is not required or expected to write a detailed report, but the report must show the application of his mind. Whether there is application of mind or not will depend on the facts of each case. In this case, objections were confined to pre-existing decree and various legal proceedings which were undertaken between the parties, the objections have been duly considered. With respect to public purpose also objections had been considered and overruled. For approval of the reasonings and recommendation of the Collector, it is not incumbent to record separate reasons. The authority agree with the reasons recorded by the LAO would be enough compliance of Section 5A. It was further contended on behalf of the respondent no. 3 that notice under Section 16 was given on 18.5.2009 for handing over the possession. The possession certificate which has been filed is final, conclusive and binding. Possession can be handed over by drawing a memorandum also. Mere entering into an unlawful possession after the possession had been handed over, the land acquisition proceedings are not vitiated. There was no necessity of obtaining leave of the Court for the purpose of acquisition. It was not necessary to take leave of the Court to take possession after 21 issuance of notification under Section 4 of the Land Acquisition Act. There is no impact of the order passed by the Hon'ble Supreme Court and judgment and decree of eviction between the parties.

It was submitted on behalf of the State Government that the acquisition has been made in accordance with law. They have also supported the submission raised by the learned Counsel appearing on behalf of respondent no. 3. It was submitted that the objections which were raised with respect to public purpose and effect of pre-existing litigation and/or decrees passed therein, could have been directly taken in this Court without raising them before the Collector, and as such validity of the enquiry and order of apportion passed under section 5A in this regard loses much of its significance as it is a question of law to be decided by us whether the acquisition was genuinely for public purpose or to overeach valid and binding orders/decrees passed. He also relied upon the judgment of the Hon'ble Supreme Court, in the case of Delhi Administration -vs- Gurdip Singh Uban & Ors. (2000) 7 SCC 296.

Coming to the first submission of the learned senior counsel as to whether the orders passed by the Supreme Court as also the judgment and decree passed by the competent court 22 of jurisdiction could be over ridden, there is no doubt about the fact that there was a series of litigation in which the predecessor of the appellants had succeeded and judgment and decree was passed in their favour. However, the acquisition which has been made in this case is exercise of power of eminent domain which is available to the State even if the decree of ejectment had been suffered by the person in possession. Eminent domain empowers the appropriate government to exercise its power of acquisition under the Land Acquisition Act in case such acquisition is for the public purpose as provided in the said Act.

Exercise of such power under the Land Acquisition Act can not be termed to be malafide or to over-reach orders passed by a court of competent jurisdiction.

The Hon'ble Supreme Court, in the case of State of Andhra Pradesh -vs- Gowardhan Lal, reported in (2003) 4 SCC 739, had considered the exercise of eminent domain to be independent of the distinct rights of the State. A decree of ejectment was passed. Soon thereafter, proceedings were initiated under the Land Acquisition Act for acquisition of the premises. The Supreme Court laid down that it cannot be said to be vitiated by malice in law. The eviction order undertaken to evict was the reason to resort to the acquisition proceedings. 23 However, there should be genuine public purpose for fulfilling the additional needs of the children. The argument that the school did not conform to the norms vis-à-vis the school building and the public purpose was not there was not accepted. The decision of the High Court to the contrary was set aside. The Apex Court had laid down that there was eminent domain of the State. The power of eminent domain of the State over-rides the power of private persons to private properties. The Apex Court has laid down that merely the fact that the State had undertaken to vacate the school building and the building was dilapidated, the acquisition could not be said to be mala fide. The rights and liability of the State, as stated, are distinct of the right of eminent domain of all properties. The school was catering to the educational needs and is situated in the heart of the city. The school was catering to the needs of the children in an old city. Reference was also made to the decision reported in State of Bihar -vs- Maharaja Dhiraj Kameshwar Prasad (1995) 5 SCC

587. The Apex Court in State of Andhra Pradesh -vs- Gowardhan Lal(supra) has laid down thus :

"16. Relationship inter se of the State as tenant with the respondent as the owner-cum-landlord of the building is regulated by the rent control legislation. The rights and liabilities of the State as tenant aredistinct from its "right of 24 eminent domain" of all properties. The school was catering to the educational needs of the children residing in the heart of the city. It cannot be seriously disputed that the continuance of the school at the same location would serve the public purpose of fulfilling educational needs of children in the old city.

17. The High Court of Andhra Pradesh held the action of acquisition of the property by the State as malicious in law only because before passing of adverse orders by the court against it, no action for acquisition of the building which was in its occupation since 1954, was initiated. In our opinion, even if that be the situation that the State as tenant of the school building took no step to acquire the land before order of eviction and direction of the High Court, it cannot be held that when it decided to acquire the building, there existed no genuine public purpose. If only the possession of the property could be retained as a tenant, it was unnecessary to acquire the property. The order of eviction as well as the direction to vacate issued by the High Court only provide just, reasonable and proximate cause for resorting to acquisition under the Land Acquisition Act. Resort, therefore, to acquisition at a stage when there was no other alternative but to do so to serve a genuine public purpose which was being fulfilled from 1954 signifies more a reasonable and just exercise of statutory power. Such exercise of power cannot be condemned as one made in colourable or mala fide exercise of it.

21. In State of Bihar V. Maharajadhiraja Sir Kameshwar Singh of Darbhanga this court has recognised the right of the State of "eminent domain" that is "the right of compulsory 25 acquisition of any private property". This power of eminent domain of the State fi sovereign power over powers and rights of private persons to properties. The High Court of Andhra Pradesh has referred anddistinguished the Division Bench decision of its own court. We find that challenge in similar circumstances by private owners to the action of acquisition taken by the State and the contention based on malice in law was negatived by this Court in the case of State of U. P. v. Keshav Prasad Singh reported in (1995) 5 SCC 587. The relevant part of it reads thus: (SCC pp. 589-90, para 4) "4. Having considered the respective contentions, we are of the considered view that the conclusion of the High Court was clearly illegal. It is seen that the land acquired was for a public purpose. Admittedly, the same land was acquired in the year 1963 for building a PWD office and after construction a compound wall was also constructed to protect the building. As found by the civil court, on adducing evidence in a suit that the Department had encroached upon the respondent's land which was directed to be demolished and delivery of possession to be given. It is seen that when that land was needed for a public purpose i.e. as part of public office, the State is entitled to exercise its power of eminent domain and would be justified to acquired the land according to law. Section 4(1) was therefore, correctly invoked to acquire the land in dispute. It is true that the State had not admitted that its officers had encroached upon the respondent's land and had carried the matter in appeal. The finding of the civil court was that the property belongs to the respondent. The factum of the action under the act implies admission of the title of the respondent to the extent 26 of land found by the civil court to be an encroachment. Though the State chose to file the appeal which was pending, better judement appears to have prevailed on the State to resort to the power of eminent domain instead of taking a decision on merits from a court of law. In view of the fact that the PWD office building was already constructed and a compound wall was needed to make the building safe and secure and construction was already made, which is a public purpose, the exercise of power of eminent domain is perfectly warranted under law. It can neither be said to be colourable exercise of power nor an arbitrary exercise of power."

(Emphasis supplied)

22. See also the decision in the case of First Land Acquisition Collector v. Nirodhi Prakash Gangoli. The relevant part of the argument at SCC pp. 166-67, para 6 reads thus:

"6. It is indeed difficult for us to uphold the conclusion of the Division Bench that acquisition is mala fide on the mere fact that physical possession had not been delivered pursuant to the earlier directions of a Court is called upon to examine the question as to whether the acquisition is mala fide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage. By no stretch of imagination, exercise of power for acquisition can be held to be malafide, so long as the purpose of acquisition continues and as has been already been stated, there existed emergency to acquire the premises in question. The premises which were under occupation of the students of National Medical College, Calcutta, were obviously badly needed for 27 the College and the appropriate authority having failed in their attempt earlier twice, the orders having been quashed by the High Court, had taken the third attempt of issuing notification under Section 4(1) and 17(4) of the Act, such acquisition cannot be held to be mala fide and, therefore, the conclusion of the Division Bench in the impugned judgement that the acquisition is mala fide, must be set aside and we accordingly set aside the same."

The facts of the present case are more or less similar and submissions made on the strength of the directions issued by this Court and by the Hon'ble Supreme Court with regard to vacating the premises could not come in the way of exercising the eminent domain, i.e. sovereign power of the State, for the purpose of land acquisition. The directions of the Hon'ble Supreme Court nowhere deals with the acquisition proceedings in any manner whatsoever. The Hon'ble Supreme Court has not dealt with the acquisition proceedings at all. Though notification under Section 4 of the Act might have been filed before it when the SLP was dismissed, the dismissal of the SLP cannot be taken to be a decision of the Supreme Court on its validity creating an embargo upon the land acquisition proceedings.

It was submitted that the possession was obtained by the school in illegal manner. Gojer Brothers were not party to the 28 writ petition which was filed. We are not impressed by the aforesaid submissions raised by the learned senior counsel as we are not examining the nature of the various orders which were passed in the previous litigation. The effect of the various orders passed in the previous lis which culminated into the decree and various other litigations is of no value particularly when the land acquisition proceedings had been initiated under the Land Acquisition Act. This submission raised is of no relevance. Whether Gojer Brothers were heard or not and what was the nature of order under which possession was taken, these are back drop facts and have no impact in these proceedings and once the legal proceedings were over we cannot reopen the legality of those orders. In land acquisition proceedings we have to consider the validity of the land acquisition proceedings.

It was also submitted that the possession was illegally obtained in 1990. The writ court appointed a special officer and the possession was restored to the school ex parte in the proceedings where the appellants Gojer Brothers were not a party.

Again, we are not examining the legality of the order by which possession was ordered to be restored to the school. The land acquisition cannot be said to be invalidated in any manner 29 due to the aforesaid order which was passed for restoration of possession.

It was also submitted by the learned senior counsel appearing on behalf of the appellants that the property was in the "custodia Legis" as the Joint Receivers were appointed over the property and leave of the Court was necessary to initiate and continue the land acquisition proceedings.

In this regard, reference was made to the decision reported in Everest Coal Co. Pvt. Ltd. -vs- State of Bihar reported in (1978) 1 SCC 12. Again the submission is not found to be tenable as the receiver was not in actual possession of the property. The school was running its activities. The school was functioning and the receiver had been appointed with respect to the school. The acquisition is under eminent domain exercised by State government under the Land Acquisition. In our opinion, in initiating the case there was no necessity to obtain the leave of the Court for initiating the land acquisition proceedings for taking possession or for initiation of proceedings by issuance of notification under section 4 of the Land Acquisition Act.

In the case of Everest Coal Co. Pvt. Ltd. -vs- State of Bihar (supra), the receiver was appointed relating to a coalmine. 30 The contract was terminated. The Apex Court, in the aforesaid factual matrix, had laid down that when the receiver was in possession of the property, the property comes in the court's custody. The receiver merely is an officer or agent of the court. Any obstruction or interference in that regard is in contempt. Legal advice had to be obtained to initiate proceedings against the receiver. Any disturbance to the court's possession without any permission amounts to contempt of its authority. In this regard, the apex court has laid down thus:

"4. The laconic affirmance by the High Court of the trial Court's order has necessitated the appellant's challenge of its propriety and legality. Instead of leaving the matter 'astrologically' vague and futuristically fluid, we shall state the legal position and settle the proposition governing this and similar situations. When a Court puts a receiver in possession of property, the property comes under Court custody, the receiver being merely an officer or agent of the Court. Any obstruction or interference with the Court's possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the Court, the sin is absolved and the proceeding may continue to a conclusion on the merits. In the ordinary course, no Court is so prestige-conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its receiver unless the action is 31 totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor. Grant of leave is the rule, refusal is the exception. After all, the court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the receiver represents neither party, being an officer of the Court. For this reason, ordinarily the Court accords permission to sue, or to continue. The jurisdiction to grant leave is undoubted and inherent, but not based on black-letter law in the sense of enacted law. Any itigative disturbance of the Court's possession without its permission amounts to contempt of its authority; and the wages of contempt of Court in this jurisdiction may well be voidability of the whole proceeding. Equally clearly, prior permission of the Court appointing the receiver is not a condition precedent to the enforcement of the cause of action. Nor is it so grave a vice that later leave sought and got before the decree has been passed will not purge it. If, before the suit terminates, the relevant Court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the lis may prove fatal."

It is apparent from the aforesaid decision that it is not a case of exercise of eminent domain, but it is a case of litigative disturbance to the court's possession without permission. In the instant case, the decision is not applicable. In the present case the factum of issuance of notification under section 4 of the Act was also intimated to the receiver. Thus he was kept apprised of the Land Acquisition proceedings.

Reliance has also been placed on the decision of this court in the decision reported in AIR 2000 Calcutta 159. The factual matrix in the aforesaid judgment is the challenge that was made to the requisition and subsequent acquisition of the plot of land. The case was that without any notice and without giving any hearing to the petitioner, had requisitioned and later on acquired the subject plot of land. In the partition suit Joint Receivers appointed by the Civil Court had taken possession along with other suit properties. This Court has observed that notice of requisition was not given to the third party which was necessary. Thus the mandatory requirement was not fulfilled. Lawful and valid requisition of land is a sine qua non of valid acquisition of the land under the aforesaid act. Moreover the property was "custodia legis". It was further observed that the Court ought to have protected the possession of the Receivers. In the instant case, the receivers were not in actual possession but the school was occupying the premises. Receivers were served with the notice under Section 4 of the Land Acquisition Act. Hence, it cannot be said acquisition proceedings were initiated or continued behind the back of the Receivers appointed by the Court and, therefore, was not in violation of the authority of such Court. One must also bear in mind the fact that the judicial proceeding in respect of which 33 Receivers were appointed did not relate to the eminent domain of the State to acquire the suit property. The ratio of the aforesaid decision is, therefore, clearly distinguishable and not applicable to the facts of the instant case.

Learned Senior Counsel has also placed reliance on a decision and submitted that Receivers were technically in possession. Receivers were not discharged. They have not made over possession to Gojer Brothers which was the direction. Relying on a decision of the Privy Council in the case of Jai Berham and others vs. Kedar Nath Marwari reported in AIR 1922 P.C. 269, it was submitted by learned Senior Counsel that the act of the Court ought not to cause injury to any of the suitors and when the expression, "the act of the Court" is used, needful should be done by the Court. He has also relied for this purpose on a decision of the Hon'ble Supreme Court in the case of Jang Singh vs. Brij Lal and others reported in AIR 1966 S.C. 1631 to contend that act of the Court should not cause harm to any litigant and he relies on the maxim "Actus curiae neminem gravabit" for which he has also referred tot he decision of this Court in the case of Union of India vs. Kamal Kumar Goswami & Ors., AIR 1974 Cal, 231 which lays down that mistake of Court should not harm a litigant.

In the instant case we are not examining the legality of the orders passed in the previous litigations and it is on record that possession was made over to the school way back in 1990. We are examining the legality of the acquisition proceedings initiated under the Land Acquisition Act and here we are not concerned with the aforesaid maxim which does not come into play in the facts of the instant case. No doubt about it - the learned Senior Counsel is right, when he says that due to mistake of the Court no litigant can be made to suffer and Court is to correct such mistake, if any.

It was submitted by the learned Senior Counsel appearing on behalf of the appellants that School management had approached the Government to acquire the property and the Government had acted in the matter in a malafide manner. Merely by writing a communication by school to the State Government, to acquire land/building malafide intention cannot be inferred, as suggested by the learned Senior Counsel. Merely by non- mentioning of inquiry to be held under section 5A in the letter of the Joint Secretary written to the Land Acquisition Collector, no malice could be inferred. In fact, inquiry under section 5A was held. There is no room to entertain the submission that the letter was written in a pre-meditated manner and the intention was to 35 avoid effective compliance of the provisions of Section 5A of the Act. There is nothing in the better.

Learned Senior Counsel next submitted that Court order could not have been nullified. Not even legislation can be enacted to nullify the court's order. Any step taken in violation of Court's order had no legal effect. He has relied on the decision of the Hon'ble Apex Court rendered in the case of Madan Mohan Pathak and Anr. vs. Union of India, (1978) 2 SCC 50. In the said case the Apex Court had considered to the effect, that if by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands , it cannot be disregarded or ignored and it must be obeyed. Therefore the Apex Court held that "irrespective of whether the impugned Act is constitutionally valid or not, the LIC is bound to obey the writ of mandamus issued by the Calcutta High Court and pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to the Class III and Class IV employees."

This ratio is not attracted as we have held that if acquisition is made for a public purpose in exercise of sovereign power of eminent domain private rights of parties arising from a decree or otherwise must yield to the superior right of the State. 36

It was next submitted by the learned Senior Counsel for the appellants that the communication dated 12th May, 2005 written by the Joint Secretary to the Land Acquisition Collector for regularising possession of the School cannot be termed to be for public purpose. Merely by mentioning the words, "for regularising possession of the School" if it was otherwise for public purpose it would not cease to be for public purpose. There was imminent danger of possession being taken away by and under the decree of ejectment which was affirmed upto the Supreme Court and objections filed under Order 21, Rule 97 of the Civil Procedure Code had been disposed of and orders have been passed to give possession to the School. The aforesaid expression has been made for regularization of possession of the School as the School was already in possession. The expression was used as after acquisition of the property, the possession of the School would be regularized.. This submission is untenable. We have not to go into the question whether the school was a tenant or otherwise in this matter. In this matter the nature of possession of the school is not to be looked into. The school has admittedly been carrying on its activities.

It was further submitted that merely by making a token contribution of Rs.10/-only, proposal was sought to be 37 converted into Government proposal. We are unable to agree with the aforesaid submission. School is, in fact, was receiving grant in aid for the purpose of dearness allowance and there are documentary evidence to that effect, as apparent from the communication dated 30-5-2006 of the Joint Secretary to the Government of West Bengal where it was mentioned that the Central Model School is aided by School Education Department, Government of West Bengal and the school is receiving aid in the form of grant for payment of dearness allowance to its teaching and non-teaching staff from the School Education Department.

The meager contribution made by the State Government cannot make acquisition of the land a colourable exercise of power and fails to falsify the declaration under Section 6 has been laid down by the Hon'ble Supreme Court in Bai Malimabu & Ors. -Vs.- State of Gujrat & Ors. (1978) 2 SCC 373 wherein contribution of Re.1 was made from the public exchequer by the State Government to acquire the land for the purpose of ESI. Hence, the Apex Court held, relying upon the decision in Smt.Soma Wanti Vs.State of Punjab AIR 1963 SC 151 and Indrajit C.Parekh Vs. State of Gujarat AIR 1975 S.C. 1182, that public purpose is not thereby vitiated.

In Bai Malimabu & Ors.(Supra), Apex Court has laid down in paragraph 6, as follows :-

"The next submission for the acquisition for the appellants was that contribution of only Re.1 from the Public Exchequer by the State Government for the purposes of acquiring land for the use of the Employees' State Insurance Corporation was a colourful exercise of power and did not in effect and substance fulfil the requirement of law as engrafted in Section 6 of the Act. A complete answer is to be found in the majority decision of this Court in Somavanti's Case (supra) and in the case of Indrajit C. Parekh v. State of Gujarat."

We are also not impressed by the submission of the learned Senior Counsel that the acquisition proceeding is not for public purpose. Apex Court in Draupadi Devi Dharmada Trust - Vs.-Daya Shankar & Ors., 2010 (15) SCC 799 has laid down that construction of a college is for public purpose.

The Hon'ble Supreme Court in Ganapati National Middle School -Vs.-M. Durai Kannan (Dead) by LRS & Ors., 1996(6) SCC 464 has laid down that acquisition of land for education is for public purpose. Right to education is a fundamental right to every child. The State cannot impart education by itself. Therefore, the agency through which it organises imparting education is a recognised private institution 39 and acquisition of land for them is a public purpose. The Apex Court has laid down:-

"2. The only question which arises for consideration is whether the acquisition is for a public purpose ? The High Court has taken the view that since the appellant-institution is being run by an individual which is not a registered society under the Societies Registration Act, 1860 it is neither a company nor a society and, therefore, acquisition does not serve any public purpose but only private interest. As a consequence, the acquisition is bad in law. The question, therefore, is whether the view taken by the High Court is sustainable in law ? Article 45 of the Constitution enjoins the State to provide free and compulsory education to all children up to the age of 14 years. It is the constitutional mandate of the State to provide compulsory education. It is now settled law of this Court that right of education is a fundamental right to every child. The State cannot impart education by itself. Therefore, the agency through which it organises imparting education is a recognised private institution according to its procedure. As regards the State of Tamil Nadu, it is governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (29 of 1974) (for short, "the Education Act"). Section 3 defines "educational agency" in relation to any other private school to mean any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private institution. Section 5(1) of the Act envisages that the educational agency of every private school proposed to be established on or after the date of the commencement of this Act shall make an application to the competent authority for permission to establish such school. The 40 prescribed procedure in that behalf has been enumerated in sub-section (2) of Section 5. Since the appellant school is not an educational institution established under the Act as it was established in 1929, it does not require recognition under the Act. But it is an educational agency defined under Section 3(b) of the Act and, therefore, it is a deemed school established under the Act by operation of Section 3(b). Accordingly the appellant-school has been receiving grants-in-aid under the Act. Under Article 29(2) of the Constitution.

"No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

Apex Court has held that the educational institution receiving aid is an instrumentality or agency of the State imparting education on behalf of the State which is a fundamental right of every child. Under those circumstances, it is clearly a case of public purpose, it could be seen that when the order of eviction was sought to be enforced, this Court while upholding the decree of eviction had imposed a condition that the undertaking shall not be enforced when the land is sought to be acquired, this Court had recognised the need for the continuance of the educational institution in the said place and that the State had taken action to acquire the land at the expense of the State to provide the education to school-going children. Under those circumstances, the High Court was wholly wrong in its conclusion that public 41 purpose is not served in acquiring the land but benefits the private individuals.

The Apex Court has also considered the question whether the premises was still occupied by the students of medical college (but occupation was neither as owner nor was lawful in the eye of law.) To effectuate lawful possession the State Government had been attempting ever since December 1982 and each of this attempt had failed on account of Court's intervention as legality of the exercise of the power under Section 17 of the Notification dated 29.11.1994 was required to be adjudicated upon. But on the aforesaid ground of exercise of power under Section 16, the Court opined that, could not be said to be illegal or mala fide.

However, if acquisition is for public purpose and such purpose has been mentioned in the declaration and that is enough for compliance as Their Lordships held in Bajirao T. Kote (Dead) By Lrs. And Another Vs. State of Maharashtra & Ors., (1995) 2 SCC 442.

               It was next submitted by the         learned Counsel

appearing on behalf of the appellant that      it was   necessary to

issue a notice under Section 4(2) of the Land Acquisition Act to the owner/occupier so to adjudge the suitability of the land. In the instant case, notification under Section 4(1) had been issued. Non 42 compliance to Section 4(2) cannot be said to invalidate the acquisition. It was not a case where certificate of the land, to take levels etc. was required as contemplated under Section 4(2) of the Act. In our opinion, non-compliance in this case cannot invalidate the acquisition process. Any violation thereof cannot invalidate the acquisition process, in case of any inconvenience being caused due to not giving such notice, remedy lies in compensating for the inconvenience caused. Thus the submission raised is hereby rejected.

It was also submitted by the learned Counsel appearing on behalf of the appellant that one of the Land Acquisition Officers had submitted the report under Section 5A, and it has been approved by another Land Acquisition Officer. Thus the Land Acquisition Officer who had accepted the proposal was of the same rank, and as such, it could not be said to be an order of approval by appropriate government in accordance with law. However, it is not disputed that Sri K.S. Bandopadhyay had been conferred power of Joint Secretary of the State Government and was the first Land Acquisition Collector who had exercised the power of approval on behalf of the appropriate Government. Thus, merely the concerned officer being of the rank of the Land Acquisition Collector couldn't invalidate the approval, because he 43 had power to approve and acted in their capacity. Enquiry report was submitted by another Land Acquisition Officer. Thus the submission is hereby rejected. It is not the case that the concerned Land Acquisition Officer did not have the power of the appropriate Government and approved the report of the Land Acquisition Officer.

It was submitted by the learned Counsel on behalf of the appellant that it could not be said that Land Acquisition Officer had applied his mind to the objections preferred by the appellant.

There were two objections submitted. The first objection was preferred on 22.6.2005. In that objection, the history of the litigation had been given in details. It was submitted that there were litigations for the last twenty five years one after another. Thus there was mis-utilization of the provisions of the Land Acquisition Act. Prayer was made to treat the letter as objection petition and it was submitted that exercise of power of land acquisition would be an abuse of process of law.

Another application was filed for taking documents on record on 29.7.2005 along with a certified copy of the order passed by the Hon'ble Supreme Court on 12.7.2005. In which yet another objection was raised that the school in question is a private school and the income is enjoyed by private persons. The Government 44 would not receive any benefit. Hence, the acquisition should be withdrawn.

The land acquisition officer had considered the aforesaid both objections. Firstly, with respect to the various litigations he has referred to the notice given by the advocate in the form of objection. It has also been mentioned that the receiver has refused to accept the notice. On July 29, 2005, the owners were present. Their submissions had been dealt with that there was order of Court in the suit between the parties. It has been observed that there was no injunction or stay restraining the Government from making acquisition of the premises for a "public purpose".

Second objection was raised as to the "public purpose" and it was observed by the Land Acquisition Officer that the School Education Department has agreed to pay Rs.10/- as token for such acquisition to make it a Government proposal in support of the school. On such premise, it was recommended to acquire the land as proposed by the Government for public purpose. No other objection had been raised by the owners. As such it was proposed by the Land Acquisition Officer to over-rule the objections filed and to proceed with the acquisition for a public purpose.

Following is the report of the Land Acquisition Officer dated July 9, 2005:

"Received L.A. proposal alongwith plan for acquisition of land with building comprising premises no.220/2, A.J.C. Bose Road, Kolkata for public purpose namely for accommodation of Central Model School from Joint Secretary School Education Deptt., Secondary Branch vide their memo no.580- S.E.(S)/7B-1/2005 dated 12.5.2005 and the said proposal vetted by the Govt. in Land and Land Reforms Deptt. Vide their memo No.1287-L.A./IE-06/05 dated 17.5.2005.

After observing formalities PER was prepared on 9.6.2005. Notification u/s. 4 being No.4-LA/D/2005/S.E.Deptt. dated 9.6.2005 was published in the Calcutta Gazette on 10.6.05. the substance of notification in form 3D was served to the interested persons. The substance of notification was displayed on the spot on 15.6.2005 and also published in two daily newspapers viz. Asian Age on 10.6.05 and Ganashakti on 11/6/05. After that on receipt of notice an objection petition filed by the Abhijit Guha Roy, Advocate, on behalf of M/s. Gojer Brothers Pvt. Ltd.

Notice u/s. 5A of the L.A. Act were served upon the interested persons including the receiver fixing on 20.7.05 and 29.7.05 for hearing. But receiver refused to accept the notice of hearing through the receiver received the substance of notification in Form 3D of the L.A. Act.

On the date of hearing 29.7.05 owners and Advocates were present.

The contentions of their submission were that the acquisition proceedings in respect of the premises in question does not cover the public purpose and acquisition proceedings is bad in law. They have submitted two letters dated 22.6.05 and 29.7.05 issued by Abhijit Guha Roy, Advocate High Court addressed to the Ist Land Acquisition Collector, Kolkata along 46 with order of the Hon'ble High Court in connection with Title Suit matter between the parties. There is no stay and or any injunction restraining the Govt. for acquisition of the premises for a public purpose.

Proposal for acquisition of land issued by the School Education, Secondary Branch, vetted by the Land and Land Reforms Deptt. Have been received in this office wherein it appears that the School Education Deptt. Secondary Branch agreed to pay Rs.10/- as a token grant towards payment of compensation money for such acquisition to make it a Govt. proposal in support of the school. On the P.E.R. it was recommended to acquire the land as proposed by Govt. for a public purpose.

No further objection from any corner has been received in this office till date including the receiver. Hence I overruled the objection filed by the parties and recommend to proceed with acquisition for a public purpose."

When we go through the report, we find the objections raised have been dealt with by the Land Acquisition Officer and the Land Acquisition Officer has given reasons for rejecting the objections. As already held by us, acquisition for a school is a public purpose and there is no embargo created by judgement and decree and orders of Court upon exercise of power of eminent domain for such purpose.

Apart from that objection with respect to public purpose, no other personal objection has been raised. Even without raising it before the Land Acquisition Officer, the same could have been 47 raised before this Court. As laid down by the Supreme Court in the case of Delhi Administration (supra), where the Supreme Court has considered that the objections under section 5A can relate to the contention relating to public purpose or personal. In this connection the decision rendered by the Supreme Court in Delhi Administration case (supra) is as follows :

"53. Now objections under Section 5-A, if filed, can relate to the contention that (I) the purpose for which land is being acquired is not a public purpose, (ii) that even if the purpose is a public purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer, or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and Objection (iii) is personal to the objector.

54. Now in the (ii) and (iii) types of objections, there is a personal element which has to be pleaded in Section 5-A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had "waived"

all objections which were personal and which he could have raised. However, so far as Objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose." Objection for the second and the third contention has been held to be personal to the objector. In the instant case, apart from 48 the objection as to acquisition not being for public purpose, no other personal objection, as adumbrated in (ii) and (iii) as aforesaid, had been raised. It has been held in the aforesaid decision, when the objection relates to (i) (supra), even if objections thereto were not filed under section 5-A enquiry, the same could be raised before the Court and has to be dealt with on merits. In the instant case, as the objections raised relate to the issue of public purpose at one end are not personal in nature, it has to be decided by us irrespective of whether it was dealt with by the LAO and the appropriate Government. Hence, the contentions of prejudice suffered by an ineffective and illusory exercise of power by appropriate Government in enquiry under section 5-A of the Act loses significance as notwithstanding the same it has to be dealt with by this Court on its own merits in accordance with law. 49

We have examined on merits, examined the objection regarding public purpose and we are satisfied that the purpose for which acquisition had been made cannot be said to be a private one camouflaged as a public purpose actuated by consideration of malice in the facts of the instant case. The objections which were raised were purely legal on both the counts as to the affect of the legal proceedings have been dealt with by us and no other objection as to suitability etc. was raised.

The next submission raised by the learned senior Counsel with respect to the appropriate Government using the word "approved" while approving the proposal of the Land Acquisition Officer it was bereft of reasons and no decision by such Government for the purpose of section 5.A(2) of the Act, as such the decision of the Government suffered with patent illegality, some reasons ought to be mentioned with regard to the satisfaction but the same having not been given in the instant case, the declaration under section 6 of the Act could not be said to be made in accordance with law.

In our opinion, in the facts of the case it has to be seen whether any prejudice has been caused by not writing a detailed order or there is any non-application of mind in that regard by appropriate government. The kind of objections which were raised 50 assumes significance so far as rejection is concerned. A challenge to the existence of public purpose merely on account of various litigations and over reach of binding Court's order would not come in the way of exercise of sovereign power of eminent domain of the State provided the exercise of such power was otherwise for a public purpose under the Land Acquisition Act, as held by the Apex Court in the case reported in State of Andhra Pradesh vs. Gowadhan Lal (Supra).

The question of legality of provisions of Section 5A has to be seen from the facts of each case. The rule of reasons is based upon the principles of natural justice and they cannot be fitted in a straitjacket formula. The report of the Land Acquisition Officer is clear and categorical in the instant case and while approving the report, the appropriate Government was clearly satisfied as to the objections which were raised and have been squarely dealt with by the Land Acquisition Officer in accordance with law. There were legal objections, not factual ones and the same have been examined by us on merits in the instant writ petition they were dealt with and no prejudice was caused to the appellants in that regard by not passing a detailed order by appropriate government. Thus, we find that the submission to be bare legs. 51

Learned Senior Counsel appearing for the appellants next submitted that effective hearing had not been granted to the appellants. Section 5A of the Land Acquisition Act, 1894 contemplates effective hearing and not formal compliance. He has referred to the decision of the Hon'ble Supreme Court in Radhy Shyam (Dead) through LRS and others vs. State of Uttar Pradesh and Ors., (2011) 5 SCC 553 in which Maneka Gandhi vs. Union of India has been quoted where it has been laid down that the "audi alteram partem" rule is intended to inject justice into the law and the Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It is also held that "audi alteram partem" rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

In the instant case, we find that the "audi alteram partem"

has been duly observed and it cannot be mechanically applied to a strait jacket formula as observed and it has to meet the situational modifications. Considering the nature of the case, we are of the considered opinion that the observations made in the decision of 52 Maneka Gandhi vs. Union of India (supra) have not been violated in the instant case and they have been duly observed and the process of reasons adopted by the Land Acquisition Officer qualifies to the aforesaid requirement of "audi alteram partem".

Reliance has also been placed on the decision of the Supreme Court in Surinder Singh Brar vs. Union of India, (2013) 1 SCC 403, to contend that where the report of Land Acquisition Officer was vitiated due to non-consideration of the objections filed by the landowners, the same cannot be said to be legal and valid. The Apex Court in the said case on considering the facts and circumstances of the case came to the conclusion that a careful analysis leaves no doubt that the officer concerned had not at all applied his mind to the objections of the landowners and merely created a facade of doing so. The following observations made by the Hon'ble Supreme Court in paragraph 68 of the Report has been relied upon.

"A cursory reading of the reports of the LAO may give an impression that he had applied his mind to the objections filed under section 5-A(1) and assigned reasons for not entertaining the same, but a careful analysis thereof leaves no doubt that the officer concerned had not at all applied his mind to the objections of the landowners and merely created a façade of doing so. In the opening paragraph under the heading "Observations", the LAO recorded that he had seen the revenue records and 53 conducted spot inspection. He then reproduced the Statement of Objects and Reasons contained in the Bill which led to the enactment of the Punjab New Capital (Periphery) Control Act, 1952 and proceed to extract some portion of reply dated 31-7-2006 sent by the Administrator to Surinder Singh Brar."

The Apex Court has further laid down that mere production of the substance of the objections cannot be equated with objective consideration thereof. It was also held that the reason why the LAO did not apply his mind to the objections at all is that he was a minion in the hierarchy of the administration and he could not have considered the objections, as observed by the Supreme Court in the facts and circumstances of the aforesaid case. The Court held LAO has failed to discharge the statutory duty cast upon him to prepare a report after objectively considering the objections filed under section 5-A(1) of the Act.. In the aforesaid context, the following observations have been made by the Hon'ble Supreme Court in paragraph 71 of the report.

"The Special Secretary, Finance and the Adviser to the Administrator also failed to act in consonance with the mandate of Section 5-A(2) read with Section 6(1). They could not muster courage of expressing an independent opinion on the issue of compliance with Section 5-A and need of the land for the specified public purposes. The noting recorded by the Special Secretary, Finance which has been extracted hereinabove shows that the officer had virtually reproduced 54 what the Administrator had mentioned in his letter dated 31- 7-2006. The Adviser went a step further. He merely appended his signatures on the note recorded by the Special Secretary, Finance forgetting that in terms of the aforementioned two sections '"the appropriate Government" is required to take decision after considering the report of the LAO. The least which can be said about the manner in which the Adviser approved the note prepared by the Special Secretary, Finance is that there was abject failure on the part of the officer concerned to discharge his duty despite the fact that he was entrusted with the onerous task of taking a decision on behalf of "the appropriate Government" after considering the reports of the LAO. The casual manner in which the senior officers of the Chandigarh Administration dealt with the serious issue of the acquisition of land of citizens signifies their total lack of respect for the constitutional provision contained in Article 300-A, the law enacted by Parliament, that is, the LA Act and interpretation thereof by the Courts. It seems that the officers were overawed by the view expressed by the Administrator and the instinct of self-preservation prompted them not to go against the wishes of the Administrator who wanted that additional land be acquired in the name of expansion of the IT Park despite the fact that a substantial portion of the land acquired for Phase II had been allotted to a private developer."

Apex Court held that as LAO did not consider the objection, it was expected that Government would take the same into consideration but Government did not take into consideration the objection and in the facts of the case it was observed that officers 55 were overawed by the view expressed by the Administrator and the instinct of self-preservation prompted them not to go against the wishes of the Administrator despite the fact that substantial portion of land acquired has been allotted to a private developer.

The factual situation of this case is totally different. Legal objections were raised and they have been rightly rejected, the objections being legal one have been examined by us and the aforesaid decision is found to be inapplicable on facts.

In the instant case, it is apparent that requirement of the school is purely of a public purpose and opinion had been formed by the LAO and State Government had approved it and no objection as to the suitability of land was raised in the instant case. Thus Sukbir Singh Brar vs. Union of India (supra) is of no avail in the facts and circumstances of the instant case.

In the instant case, reference under Section 18 has been sought. As reference was sought without prejudice and objections were filed, we are not dismissing the writ petition on the ground of prayer was made for enhancement of compensation as awarded by the Land Acquisition Officer. Reference had been sought under Section 18 of the Land Acquisition Act. It is true, once award is passed and parties have claimed enhanced compensation they cannot pursue the challenge to acquisition itself, as both cannot go 56 together. However, such reference in the instant case has been made subsequently without prejudice to the rights of the appellants. Hence we have dealt with the challenge that there was no public purpose and effect of litigation on acquisition proceeding. We are of the opinion that the acquisition was made for a public purpose and, in fact, such finding had been recorded by the LAO that acquisition was for a public purpose upon dealing with the two-fold objections raised before him on legal issues.

Reliance has been placed on the decision of the Supreme Court in Valjibhai Vs. State of Bombay reported in AIR 1963 S.C. 1890 in which whether the action is colourable, collusive or issue of mala fide came to be considered. The Apex Court had observed the question that acquisition was mala fide is one of facts. In the instant case we find that merely by the fact that earlier decree of ejectment was passed, it cannot be said to be colourable or mala fide exercise of power in any manner.

Reliance has also been placed on Shri Balaram Mukherjee Vs. State of West Bengal, reported in 1980(2) CHN 371, where the prima facie finding of declaration under Section 6 of the Act came to be considered. It has been observed that land being acquired by the State is within the legislative competence of the State, the declaration of the Government, however, is subject to 57 one exception that, if there is colourable exercise of power, the declaration will be open to challenge at the instance of the aggrieved party.

The decision in Jage Ram & Ors. vs. The State of Haryana & Ors. AIR 1971 SC 1033; Shyam Behari & Ors. vs. The State of Madhya Pradesh & Ors. AIR 1965 SC 427; Ramkrishna Mission, Howrah vs. P.N. Talukder & Ors. AIR 1965 SC 646, have been referred to in which the declaration under Section 6 was found to be fraudulent or in colourable exercise of power. In the instant case, we do not find any fraud or colourable exercise of power and hence, the said decisions have no application.

It was also submitted by the learned Senior Advocate appearing on behalf of the appellant that land has been acquired in such a fashion as to leave out small portion on either side which makes the areas left out as unusable or unsaleable. If that be so, it could not have been a ground to question the acquisition of the land, nor this question was raised before the Land Acquisition Collector under section 5A. Apart from that, the fact that any portion of the land has been left unusable or unsaleable, can be a ground to claim more compensation but cannot be a ground to question the acquisition of the land itself.

It was also submitted that apportionment made in the award was not appropriate. Documents were not placed before the LAO and legal process had not been followed by the LAO. We are not inclined to take into consideration the aforesaid objection in the writ jurisdiction of the intra-court appeal of this Court as such an objection with respect to apportionment can be raised appropriately in the reference under Section 18 and/or under Section 30 of the Act or by way of filing suit before the Civil Court. Hence, we are not inclined to entertain the objection of the apportionment in the instant matter. We are also not impressed by the submission that in the award the name of only one tenant was mentioned and the apportionment was bad in law. Reliance had been placed on State of West Bengal & Ors. Vs. M/s. Asiatic Investment Limited & Ors. 2009(2) CLJ 636. For the aforesaid reasons, we reject the submission as the question of apportionment cannot be examined in Writ Jurisdiction. Legality of award is not subject matter of the writ application, there was no prayer made to set aside the award in view of the aforesaid ground.

Much stress was laid by learned Senior Counsel appearing on behalf of the appellant, though no ground was taken, that no Panchanama had been drawn and for such reason the instant possession certificate cannot be said to be the proof of taking the 59 possession of land. He has also referred to the possession certificate by Land Acquisition Collector to the Education Department at page 379 of the paper book and possession certificate by Education Department to the school is significant in this case as appearing at page 380 of the paper book. Both the certificates show that possession had been received on 25.5.2009 at 1.00 p.m. It was submitted by learned Counsel that actual possession was never taken. It was only a paper transaction and paper proceedings had been drawn. Gojer Brothers was not present when possession as alleged to have been taken. It was a cyclonic weather in South Bengal including Kolkata, on that day as the cyclone "Aila" hit the city. He has referred to two decisions i.e. Raghbir Singh Sehrawat Vs State of Haryana And Ors., (2012) 1 SCC 792 and Prahlad Singh And Ors. Vs Union of India And Ors. 2011(5) SCC 386.

On the other hand, learned Counsel appearing on behalf of the respondent no. 3, Central Model School, had submitted that notice under Section 16 admittedly was served to the appellant on 18.5.2009 intimating the possession be handed over on 25.5.2009, possession certificate had been filed even before the Hon'ble Supreme court in W.P. No.432 - 433 of 2009. The possession certificate clearly indicates handing over the possession by Land 60 Acquisition Department to the School Education Department and thereafter by the school education department to the school. Possession can be handed over by means of an Memorandum and by putting signatures thereupon. Reliance has been placed on Balmokand Khatri Educational And Industrial Trust, Amritsar Vs State of Punjab And Ors. 1996(4) SCC 212 and Tamil Nadu Housing Board Vs A.Viswam (Dead) By Lrd. 1996(8) SCC 259. It was further submitted that certificate cannot be doubted to say that possession has not been handed over. Reliance has been placed on Brij Pal Bhargava And Others Vs State of Uttar Pradesh And Others (2011) 5 SCC 413, Dahyabhai Ranchhoddas Dhobi And Another Vs State of Gujarat And Others (2010) 7 SCC 705.

In Raghbir Singh Sehrawat(Supra) crops were standing on the land thus the Apex Court had observed on legality of the mode and manner of taking possession. In Balwant Narayan Bhagde V. M.D.Bhagwat (1976) 1 SCC 700 wherein it has been dealt with now delivery is effected by taking appropriate measure. Various decisions have also been considered in Banda Development Authority Vs. Moti Lal Agarwal 2011(5) SCC 394. The Apex Court had summarised in Banda Development Authority (Supra) that there is no hard and fast rule that can be laid down as to 61 what act would constitute taking of possession to acquire land. If the land is vacant, the act of the State Authority concerned to go to the spot and prepare a Panchnama will ordinarily be treated as sufficient to constitute taking of possession. It has been summarised in Banda Development Authority(supra) as follows:-

"27. The two judgments relied upon by the learned counsel for Respondent 1 are not helpful to the cause of his client. In Vyalikaval Housebuilding Coop. Society v.V.Chandrappa this Court held that where the acquisition was found tobe vitiated by fraud and mala fide, the delay in filing the writ petition cannot be made a ground for denying relief to the affected person. In Babu Ram V.State of Haryana this Court held that the appellant cannot be denied relief merely because there was some delay in filing the writ petition. The facts of that case were that 34 kanals 2 marlas of land situated at Jind (Haryana) was acquired by the State Government under Section 4 read with Sections 17(2)( C )J and 17(4) for construction of sewage treatment plant. Notification under Section 4 was issued on 23.11.2005 and declaration under Section 6 was issued on 2.1.2006. Mitaso Educational Society, Narwana, filed a suit for injuncting the State from constructing the Sewage treatment plant in front of the school. On 15.2.2006 the trial Court passed an order of injunction. In another suit filed by one Jagroop similar order was passed by the trial Court. After some time, the appellant filed writ petition under Article 226 of the Constitution. Before this Court it was argued that relief should be denied to the appellant because there was delay in filing the writ petition. Rejecting this argument the Court observed (Babu Ram Case, SCC p.122, para 32).

"32.Since Section 5-A of the LA Act had been dispensed with, the stage under Section 9 was arrived at within six months from the date of the notice issued under Sections 4 land 17(2) ( c ) of the LA Act. While such notice was issued on 23.5.2006. During this period, the appellants filed a suit and thereafter, withdrew the same and filed a writ petition in an attempt to protect their constitutional right to the property. It cannot, therefore, be said that there was either any negligence or lapse or delay on the part of the appellants."

It has also been held that when crop was standing, possession could not have been taken without giving notice to the landowners. As regards taking of possession by the Revenue Authority, symbolic possession, which was taken was not relied upon. In the facts and circumstances of the instant case, notice was admittedly given, school was running in the said building and there is absolutely nothing to doubt that proceedings of taking possession was drawn by LAO and handing over possession to the School Education Department and thereafter School Education Department has handed over the possession to the School as per the documents available in the file. They are conclusive and enough in the facts of the case as per decision of the Hon'ble Supreme Court in Banda Development Authority. Possession has duly been taken in the instant case in accordance with law. It could not be said to be mere paper proceedings as submitted. We 63 are unable to accept the submissions made by the learned Senior Advocate. He has also relied upon the decision of the Supreme Court in Patasi Devi vs. State of Haryana & Ors., (2012) 9 SCC 503 and also relied upon the decision of the Hon'ble Supreme Court in the case of Banda Development Authority (supra) in which the Apex Court laid down referring to the case of Prahlad Singh & Ors. vs. Union of India & Ors., (2011)5 SCC 386, and observed that the land is to be acquired and treated to be vested as estate of the State. Judgement of Banda Development Authority (supra) has already been referred, which we have already discussed and distinguished.

Reliance has also been placed in (2011)5 SCC 386 in which it has been held that High Court should have examined the important issue of cultivation. The decision has no application in the instant case as, in our opinion, possession had been taken.

The Apex Court in the case of Balmokand Khatri Educational & Industrial Trust, Amritsar vs. State of Punjab & Ors., (1996)4 SCC 212, has laid down with respect to mode of taking possession and observed the mode of taking possession in drafting the Panchnama in the presence of Panchas and taking possession and giving delivery to the beneficiaries. Merely because the appellant retained possession of the acquired land, the 64 acquisition cannot be said to be bad in law. The Apex Court has observed, "4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Paresh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal and unlawful possession.

5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be had in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not 65 necessary for us to give any such liberty since acquisition process has already been completed."

Similarly, in the case of Tamil Nadu Housing Board vs. A. Viswam (Dead) by LRS, (1996) 8SCC 259, the Apex Court has considered the mode of taking possession and has laid down that under Section 114(e) of the Evidence Act, 1860 the LAO in discharge of his official duties has taken the possession and delivered possession of the land to the appellant. The same cannot be disregarded the Apex Court has laid down thus, "The question is: whether the land in question was taken possession of? The issue squarely arises vis-à-vis the respondents. Unfortunately, the respondents had not impleaded the LAO who had taken possession and delivered possession of the land to the appellant. It is not in dispute that under Ext.P-5, the LAO delivered possession to the appellant. Therefore, as rightly contended by Shri Harish Salve, learned Senior Counsel for the appellant, that the presumption under Section 114(e) of the Evidence Act would consequently get attracted to the facts in this case. The LAO in discharge of his official duty after taking possession of the disputed land along with other lands, had, in turn, delivered the same to the appellant. It is seen that 339 acres of land acquired by a common notification was taken and the award came to be made and possession was taken of all the lands. Question arises: whether it would be possible for the LAO to take physical possession of the entire 339 acres of land and deliver the same to the Housing Board? The approach to the question must be pragmatic and realistic but not purely 66 legalistic. It is true that in Balwant Narayan Bhagde case, Untwalia, J. had held thus: (SCR p.263 : SCC p. 710, para 25) "... the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land."

In the decision reported in (2011) 5 SCC 413 [Brij Pal Bhargava and Others -vs- State of Uttar Pradesh & Ors.], it has been laid down that the question of possession has to be considered in a pragmatic manner and it is a question of fact. The possession receipts have to be relied upon which were drawn on the spot.

We are unable to accept the submission that it was not possible to deliver the possession. There is no room to doubt that the possession certificate is a valid not a proper transaction.

The Apex Court in Brij Pal Bhargava (Supra), has been pleased to lay down as follows:

"10. As regards the affidavit of the lawyer appearing on behalf of the appellants in land acquisition proceedings, we have gone through the affidavit. It is, however, completely 67 bereft of the dates and other details. We, therefore, do not find it fit to rely upon the same."

"13. Seeing the report and the orders passed, we are thoroughly convinced that not only the possession was taken, but there are activities going on at the behest of Mathura Vrindavan Development Authority. This is apart from the fact that this is a pure question of fact which has been answered by the High Court in no uncertain terms. In this view of the matter, we are of the clear opinion that even on this count, the appellants must fail."

Apart from that, it is also apparent that in case possession has been illegally retained or if a person has re-entered the possession in an illegal manner, land acquisition proceeding would not be vitiated . Reference, in this connection, has been by respondent No.3, to State of Tamil Nadu & Anr. -vs- Mahalakshmi Annual & Ors. reported in (1996) 7 SCC 269; Sita Ram Bhandar Society, New Delhi -vs- Lieutenant Governor, Government of NCT, Delhi & Ors. reported in (2009) 10 SCC 501 and Banda Development Authority, Banda -vs- Moti Lal Agarwal & Ors. reported in (2011) 5 SCC 394.

Coming back to the arguments on behalf of the appellants, reference was made to the judgment State of Andhra Pradesh & Ors. -vs- Gowardhanlal Pitti (Supra), and it was sought to be distinguished. It was submitted that acquisition stood vitiated due to orders/decrees of Court. The argument employed for 68 distinguishing the case are not enough. In the instant case, the acquisition is for public purpose and passing of the judgment and decree would not make it impermissible or violative of law in any manner whatsoever, exercise of 'eminent domain' is sought to be undertaken under the Land Acquisition Act, 1894. It was also submitted that the school was not the tenant, the tenant was one Kuldip Harbans Kaur against whom there was a decree for eviction and in the instant case, the decree holder was dispossessed by an illegal order of the writ court, act of the court should not prejudice a litigant and the possession is technically that of the receiver permission of Court was not taken, it is the bounden duty of the court to restore possession to the owners.

We have dealt with these submissions of the appellants in detail in aforesaid paragraphs and we have not found any merits in them and they are not enough to come in the way of acquisition. We have not found that there was any political interference made in the instant case. It cannot be said that acquisition was to regularise the illegal possession of the school. The nature of the possession of the school was immaterial for the purpose of validity of the acquisition. There was due compliance of the statutory provisions of Land Acquisition Act, In the facts of the case and considering the nature of the objection raised, that the amount 69 awarded was not commensurate with the value of the property, cannot come to the rescue of the appellants as that is not a question which can be examined within the scope of judicial review of notification under Section 4 or for declaration under Section 6 of the Act and for which reference has already been sought.

We find no merits in the appeals and the same are liable to be dismissed and are hereby dismissed, all the pending applications also stand disposed of. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.

A prayer for stay is made on behalf of the appellants. We direct that status quo be maintained in the matter for a further period of four weeks from date.

Let the records of the Land Acquisition Department be sent to the concerned department by the Registrar, Original Side of this Court.

         (JOYMALYA BAGCHI, J.)                         (ARUN MISHRA, CJ.)




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