Calcutta High Court (Appellete Side)
Development Authority & Ors vs Hasibur Rahaman Sardar & Ors on 26 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
FMA 177 of 2024
With
IA No.: CAN 1 of 2024
The Special Secretary, Kolkata Metropolitan
Development Authority & Ors.
Vs.
Hasibur Rahaman Sardar & Ors.
With
COT 81 of 2024
With
IA No.: CAN 1 of 2024
The State of West Bengal & Ors.
Vs.
The Special Secretary, Kolkata Metropolitan
Development Authority & Ors.
For the Applicants : Mr. Kishore Dutta, Ld. Advocate General
Mr. Satyajit Talukder, Adv.
Mr. Arindam Chatterjee, Adv.
For the Private : Mr. Sakti Mukherje, Ld. Sr. Adv.
Respondent No. 1 Mr. Amit Kumar Pan, Adv.
Mr. Syed Julfikar Ali, Adv.
Mr. Shubrojyoti Mookherjee, Adv.
For the State : Mr. Rabindra Narayan Dutta, Adv.
Mr. Arkodoy Mukherjee, Adv.
Hearing Concluded on : June 19, 2025
Judgement on : June 26, 2025
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.06.26
16:47:10 +05'30'
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DEBANGSU BASAK, J.:-
1. Appellants have assailed a judgment and order dated December 1, 2023 passed in WPA 28121 of 2022. State of West Bengal and its functionaries have preferred a cross objection there to. Both have been heard analogous.
2. By the impugned judgment and order, learned Single Judge has directed the Collector under the Land Acquisition Act, 1894, Howrah to issue a formal order of derequisition in respect of the plots in question in favour of the writ petitioner within two months from the date of communication of the judgment. State respondents have been granted opportunity to initiate fresh acquisition proceedings in respect of the plots within the timeframe of two months, in accordance with law.
3. Learned Advocate General appearing for the appellants has contended that, an acquisition proceeding under the West Bengal Land (Requisition and Acquisition) Act, 1948 being LA Case No. LA-II/29/1 of 1986-87 was initiated for acquiring land measuring 21.245 acres of mouza Pakuria comprising of several plots including RS Plot Nos 845, 846 and 847.
4. Learned Advocate General has contended that, order under Section 3(1) of the Act of 1948 was issued on May 23, 3 1988 and served upon the recorded owners/occupiers including the vendors of the writ petitioner. Possession of the land had been taken on May 22, 1988. Notification under Section 4(1a) of the 1948 Act had been published in the Calcutta Gazette extraordinary on December 14, 1989. Since, the acquisition proceeding could not be completed within the life time of the Act of 1948, the same had been switched over to the Land Acquisition Act, 1894 by invoking the amended provisions of Section 9(3) (A) and (B) of the Act of 1894. Notice under Section 9(3) and (4) of the Act of 1894 dated January 22, 2004 had been issued to the recorded owner/occupiers.
5. Learned Advocate General appearing for the appellants has contended that, the appellants being the requiring authority deposited the amount towards the costs of acquisition with the concerned Collector. Collector had declared award on September 30, 2004 in which Vendors of the writ petitioners were amongst the awardees. He has pointed out that, out of the 128 plots of land involved and total number of awardees being 311, 129 awardees had accepted and received the compensation amount. On 19 awardees having not received the same including the erstwhile 4 vendors of the writ petitioners, the compensation amount has been deposited with the Land Acquisition Tribunal under the provisions of the Act of 1894.
6. Learned Advocate General appearing for the appellants has contended that, possession taken and awards passed, the plots stood vested with the State. State of West Bengal thereafter had conveyed the land in question by a registered deed dated November 3, 2004 to the appellants.
7. Learned Advocate General has contended that, the writ petitioner claimed to have purchased the subject plots in April, 2022. He has referred to the reliefs sought for in the writ petition. He has pointed out that, the vendors of the writ petitioners questioned the requisition proceeding by way of a writ petition being CO No. 13775 (W) of 1994. Such writ petition had been disposed of on April 29, 1997. While disposing of such writ petition on April 29, 1997, High Court had set aside the possession taken on requisition but allowed the State to proceed with the acquisition of the land, in accordance with law.
8. Learned Advocate General appearing for the appellants has contended that, the land acquisition proceedings in CO 5 No. 13775 (W) of 1994 was different than the land acquisition proceedings involved herein. Therefore, according to him, the decision rendered in CO No. 13775 (W) of 1994 has no manner of application to the land acquisition proceedings involved in the present appeal and cross objection.
9. Learned Advocate General appearing for the appellants has submitted that, although the order dated April 29, 1997 passed in CO No. 13775 (W) of 1994 was the basis of the writ petitioner in the writ petition, in the affidavit in reply, the writ petitioner sought to take shelter under the judgement and order dated September 29, 2008 passed in WP No. 654 (W) of 2004. However, he has contended that, no effort was made to amend the writ petition to substantiate such allegation. In any event, the judgement and order dated September 25, 2008 passed in WP No. 654 (W) of 2004 related to a challenge to the notice issued under the Act of 1894 and that the land acquisition proceedings were not under challenge. Therefore, according to him, the judgement and order dated September 25, 2008 passed in WP No. 654 (W) of 2004 does not assist the writ petitioner.
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10. Learned Advocate General appearing for the appellants has submitted that, upon publication of the notice under Section 4 (1 a) of the Act of 1948 the land stood vested with the State under Section 4 (2) of the Act of 1948. He has contended that on publication of such notice, the period of requisition ended. Notice under Section 4 (1 a) of the Act of 1948 had been published on December 14, 1989. Land had therefore stood vested and once vested cannot be divested. He has relied upon 2020 Volume 8 Supreme Court Cases 129 (Indore Development Authority vs Manoharlal and ors.) in support of such contention.
11. Learned Advocate General appearing for the appellants has has referred to Section 4 and 7A of the Act of 1948. He has contended that, by virtue of Section 7A notice issued under Section 4 of the Act of 1948 ceased, however, the vesting continued. He has referred to Section 9 (3B) of the Act of 1894 in this regard. He has contended that, there is difference between the vesting under the Act of 1894 and the Act of 1948. He has contended that, vesting under the Act of 1894 takes place when possession is taken under Section 16 thereof after compliance with the provisions contained in 7 Sections 4, 5, 5A, 6, 9, 11 and 12 whereas vesting under the Act of 1948 is a fiction of law which takes place upon publication of the notice under Sections 4 of the Act of 1948.
12. Learned Advocate General appearing for the appellants has contended that, Section 11 A of the Act of 1894 was inserted by the Land Acquisition (Amendment) Act, 1984 while Section 7A was inserted by the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1996. He has contended that, Section 7A did not provide for lapse of either vesting or acquisition proceedings. According to him, vesting continues to remain even with the lapse of notice published under Section 7A of the Act of 1948. According to him, since the vesting remained, only the assessment of compensation is required to be done. According to him, December 14, 1989 when that is the date of publication of the notice under Section 4 of the Act of 1948 is the date of reference for the purpose of calculation of compensation.
13. Learned Advocate General appearing for the appellants has contended that, Section 9 (3B) of the Act of 1894 applies at the vesting stage whereas Section 9 (3A) thereof applies at the requisition stage under the Act of 1948. He has contended 8 that, the intention of the legislature in incorporating Section 9 (3A) and (3B) to section 9 of the Act of 1894 is to provide an opportunity of hearing to the land losers before assessment of compensation. In the facts of the case, he has pointed out that, notice under section 9 (3) and (4) of the Act of 1894 dated January 22, 2004 was issued to the recorded owner/occupiers of the land which can be construed to be a notice under section 9 (3B) of the Act of 1894 and the proceedings to be converted from the Act of 1948 to the Act of 1894. Award passed by the Collector on September 30, 2004, in such perspective has to be construed to be within the prescribed time and the same does not fall within the mischief of Section 11 A of the Act of 1894. Therefore, he has contended that, the award is valid.
14. Learned Advocate General appearing for the appellants has contended that, there is no statutory format for issuance of a notice under Section 9(3A) or 9 (3B) of the Act of 1948. In any event, nor non-issuance of notice under Section 9 (3A) or 9 (3B) could not vitiate the proceeding or affect the rights of the writ petitioners.
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15. Learned Advocate General appearing for the appellants has contended that, assuring that no effective notice was served upon the predecessors in the interest of the petitioner, then also, the same does not vitiate the proceeding or the award. He has relied upon All India Reporter 1962 Mysore 169 (M/s. Hunuikeri Bros., vs. Asst.
Commissioner,Dharwar Division, and Anr.) and 2010 Volume 13 Supreme Court Cases 98 (May George versus Special Tahsildar and Others) in support of his contention that, the Act of 1894 does not prescribe for any prejudicial consequence in case of notice under Section 9 (3) of the Act of 1894 not being served upon the person interested. He has contended that, law laid down in May George (supra) was followed in 2013 Volume 11 Supreme Court Cases 296 (Ram Prakash Agarwal and Anr. vs. Gopi Krishnan (Dead Through Lrs.) and ors.), 2024 SCC online SC 258 (State of Haryana vs. Ashok Khemka and Anr.) and Indore Development Authority (supra).
16. Learned Advocate General appearing for the appellants has contended that, since the writ petitioners are post vesting purchasers and therefore, they have no locus to challenge the 10 acquisition proceedings. In support of such contentions, he has relied upon 1996 Volume 3 Supreme Court Cases 124 (U.P. Jal Nigam, Lucknow through its Chairman and Anr. vs. Kalra Properties (P) Ltd., Lucknow and Ors.), 1996 Volume 11 Supreme Court Cases 698 (Star Wire (India) Ltd. vs. State of Haryana and Ors.), 2013 Volume 14 Supreme Court Cases 737 (Bangalore Development Authority vs. Vijaya Leasing Limited and Ors.), 2008 Volume 9 Supreme Court Cases 177 (Meera Sahni vs. Lieutenant Governor of Delhi and Ors.), 2019 Volume 10 Supreme Court Cases 229 (Shiv Kumar and Anr. vs. Union of India and Ors.), 2022 Volume 10 Supreme Court Cases 519 (Delhi Development Authority vs. Damini Wadhwa and Ors.), 2024 Volume 3 Supreme Court Cases 731 (Delhi Development Authority vs. Narendra Kumar Jain and Ors.), and 2012 Volume 12 Supreme Court Cases 133 (V. Chandrasekaran and Anr. vs. Administrative Officer and Ors.).
17. Referring to the ratio laid down in Indore Development Authority (supra) learned Advocate General appearing for the appellants has contended that, if an award 11 is made as on January 1, 2014 being the date of commencement of the Act of 2013 and, compensation has not been paid then also there is no lapse. Similarly, if compensation is being paid, and possession is not taken then also there is no lapse. He has contended that, non-deposit of compensation in court does not result in the lapse of land acquisition proceedings.
18. Learned Advocate General appearing for the appellants has contended that, the judgement and order dated September 25, 2008 passed in WP No. 654 (W) of 2004 does not operate as res judicata for the appellants or the state authorities in the instant case. He has contended that, the writ petition is not hit by the principle of res judicata. He has relied upon 1970 volume 1 Supreme Court cases 613 (Mathura Prasad Bajoo Jaiswal and Ors. vs. Dossibai N.B. Jeejeebhoy), 2005 Volume 5 Supreme Court Cases 390 (Shakuntala Devi vs. Kamla and Ors.), 2002 Volume 3 Supreme Court Cases 496 (Haryana Financial Corporation and Anr. vs. Jagdamba Oil Mills and Anr.), 2004 Volume 1 Supreme Court Cases 551 (V. Rajeshwari vs. T.C. Saravanabava), 2023 SCC Online SC 356 (Prem 12 Kishore & Ors. vs. Brahm Prakash & Ors.), 2010 Volume 12 Supreme Court Cases 400 (Surendra Nath Pandy and Others vs. Uttar Pradesh Cooperative Bank Limited and Another), and 2010 Volume 14 Supreme Court Cases 420 (Union of India and Others vs. O.P Nijhawan and Others) in this regard.
19. Learned Advocate appearing for the State (cross objector) has submitted that, State is adopting all the arguments and contentions advanced on behalf of the appellants by the learned Advocate General.
20. Learned Advocate appearing for the State has referred to a list of dates in his written notes on arguments. He has contended that, the writ petitioners have no right to challenge the land acquisition proceedings even if such proceedings are deemed to be lapsed in view of the fact that, the writ petitioners are post vesting purchasers. In support of the proposition that, a post vesting purchaser has no locus standi to challenge the acquisition proceedings learned Advocate appearing for the State has relied upon 2024 Volume 7 Supreme Court Cases 370 (Government of NCT of Delhi and Another vs. BSK Realtors LLP and Another), 2024 13 Volume 3 Supreme Court Cases 721 (Delhi Development Authority vs. Narendra Kumar Jain), 2023 Volume 12 Supreme Court Cases 756 (Delhi Development Authority and Shyamo and Others), 2022 Volume 8 Supreme Court Cases 771 (Delhi Development Authority vs. Godfrey Phillips(I) Limited and Others), All India Reporter 2024 J & K 114 (Sh. Chaman Kumarand Ors. vs. UT of J. and K. and Ors.) and All India Reporter 2011 SC 3558 (A.P Industrial Corporation Ltd. vs. Chantamemani Narasimha Rao & Ors.).
21. Learned senior advocate appearing for the writ petitioner has referred to the prayers made in the writ petition. He has submitted that, the challenge in the writ petition is the omission on the part of the authorities concerned to issue a formal order of release in spite of the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994 declaring the acquisition itself to be void. He has pointed out that, the land in question is RS the Nos. 845 (33.5 decimals), 846 (4 decimals) and 847 (9 decimals) aggregating to about 46.50 decimals situated at Mouza Pakuria.
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22. Learned senior advocate appearing for the writ petitioner has submitted that, the predecessor in title of the writ petitioner filed a writ petition being CO No. 13775 (W) of 1994, alleging that there was no notice under Section 3 (1) or Section 4 of the Act of 1948 served upon the predecessor in title. He has referred to the stand taken by the State in the affidavit used in CO No. 13775 (W) of 1994. He has submitted that, the claim of acquisition under Section 4 (1A) of the Act of 1948 in respect of plot Nos. 845 and 846 was under challenge in such writ petition. He has referred to the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994. He has contended that, by the time, the judgement and order dated April 29, 1997 was passed, the Act of 1948 had expired on April 1, 1997.
23. Learned senior advocate appearing for the writ petitioner has contended that, State accepted the directions issued in the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994. He has referred to a letter dated March 2, 2001 and the follow-up letter dated August 13, 2022 in this regard. He has contended that, by 15 such letters, State had admitted that the land in question had to be released to the writ petitioner.
24. Learned senior advocate appearing for the writ petitioner has contended that, although the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994 permitted the State to proceed afresh, having declared the proceedings up to the date of the judgement and order, void, State did not proceed afresh but sought to convert proceedings under the Act of 1948 to be one under the Act of 1894. He has contended that, since, the judgement and order dated April 29, 1997 had declared the proceedings under the Act of 1948 to be void, the same could not have been validly converted. In support of such contention, he has relied upon 2011 Volume 3 Calcutta High Court Notes 555 (State of West Bengal vs. Sabita Mondal).
25. Learned senior advocate appearing for the writ petitioner has contended that, both the requisitions and the acquisition proceedings under the Act of 1948 were stillborn. Judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994 had attained finality. Since, State did not issue a formal order of release, the writ petition had to be 16 filed. In such writ petition an interim order dated December 21, 2022 was passed against which, an appeal was filed. By an order dated March 1, 2023, the Division Bench had set aside the interim order and directed the learned Single Judge to hear the writ petition on the point of interim order again.
26. Learned senior advocate appearing for the writ petitioner has referred to an order dated September 25, 2008 passed in WPA No. 654 of 2004. He has also referred to the judgement and order dated February 21, 2013 passed by the Division Bench. He has pointed out that, the Special Leave Petition filed by the appellants directed against the judgement and order dated February 21, 2013 was dismissed by the Supreme Court on July 4, 2013.
27. Learned senior advocate appearing for the writ petitioner has referred to an order dated January 21, 2025 passed in the present appeal by the coordinate bench. He has also referred to affidavit of the State filed pursuant thereto and in particular to paragraphs 7 and 8 thereof. He has contended that, in such affidavit, State has acknowledged that, the land acquisition case was initiated under Act of 1948 and that, no fresh notice under Section 4 and 6 of the Act of 17 1894 were issued. He has submitted that, the proceedings under the Act of 1948 was declared void by the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994. Subsequent thereto, no further notice was issued under the Act of 1894.
28. State government had undertaken two land acquisition proceedings under the Act of 1948 being LA Case No. 27/1 (Act II)/CMDA of 1984-85 for plot Nos. 845, 846 and 847 and LA Case No. 29/1 (Act II) of 1984-85 for plot Nos. 1441, 1442, 1443, 1444, 1445, 1446, 1447, 13281, 1332, 1371 for the construction of West Howrah Township Project. in order to increase the employment opportunities for the youth by establishing commercial and industrial estate and for creation of better living in rural areas. Initially, State had requisitioned such properties at the behest of the appellants.
29. According to the State possession of the land in respect of LA Case No. 29/1 had been made over to the appellants, being the requiring authority, on May 24, 1988. According to the State, a notification dated May 24, 1989 had been issued under Section 4 (1 a) of the Act of 1948 which was published in the Calcutta Gazette on December 14, 1989. 18
30. Predecessor in title of the writ petitioner had filed a writ petition being CO No. 13775 (W) of 1994 challenging the acquisition proceedings in respect of plot Nos. 845, 846 and
847. Such writ petition was disposed of by a judgement and order dated April 29, 1997. Relevant portion of such judgement and order dated April 29, 1997 is as follows: -
"In this writ petition the purported requisition of the lands of the writ petitioners under the provisions of West Bengal Land (Requisition and Acquisition) Act 1948 has been challenged. The petitioners alleged that the lands of the writ petitioners as mentioned in the writ petition were purported to be requisitioned under the provisions of the said Act without service of any notice and/or any order made under the provisions of the said Act to the writ petitioners. Though the State respondent filed an affidavit-in-opposition to this writ petition contending that the lands of the writ petitioners were acquired under the provisions of said West Bengal Land (Requisition and Acquisition) Act of 1948 but no order made under sub-Section 1 of Section 3 for requisition of the same and/or for acquisition under Section 4 of the said Act upon requisition of the lands in question have been disclosed in the said affidavit-in-opposition except a copy showing taking over possession of the lands in dispute. It is settled principle of law that nobody should be deprived of his property without due process of law. Since, there is no material either to show that there was an order for requisition of the lands in question or the same was served upon the writ petitioners, so this writ petition succeeds and the possession, if any, taken by the respondent authorities without due process of law shall stand 19 set aside. However, the aforesaid order will not prevent the respondent authorities to proceed in accordance with the provisions of law for the purpose of acquisition of the lands in question of the writ petitioners.
Thus this writ petition is disposed of."
31. Judgment and order dated April 29, 1997 has categorically held that there was no order of requisition and that possession taken was illegal. State did not refer any appeal from the judgement and order dated April 29, 1997. Rather, there are two letters dated March 2, 2001 and August 30, 2022 by which, the authorities have decided to the derequisition/relinquish the plots. By the order dated March 2, 2001 the appellants has forwarded the application for derequisition to the State for necessary action. State by the letter dated August 30, 2022 has asked the appellants as to the status of the plots in questions.
32. In the present appeal, the coordinate bench by an order dated January 21, 2025 had called upon the State to submit a report in the form of an affidavit with regard to the steps taken subsequent to the judgement and order dated April 29, 1997 in respect of the plots concerned. Pursuant to such order dated January 21, 2025, State by an affidavit 20 dated February 7, 2025 has stated that, in respect of the land acquisition case initiated under the Act of 1948 in 1986-87, no fresh notice under section 4 and 6 of the Act of 1894 were issued and/or published in the Calcutta Gazette.
33. In such affidavit dated February 7, 2025, State however has sought to dispute that, the plots concerned in the writ petition were not part of LA Case No. 27/1 but was involved in LA case No. 29/1. Writ petitioner has however disputed this claim of the State.
34. Be that as it may, the fact remains that the High Court in a writ petition involving the 3 concerned plots of land, being CO No. 13775 (W) of 1994, by the judgments and order dated April 29, 1997 passed in presence of the State, has held that there was no order for requisition of the plots involved, and directed the State to make over possession to the writ petitioner therein being the predecessor in interest of the writ petitioner herein. State did not act in terms of the liberty granted to proceed in accordance with the law for the purpose of acquiring the plots in question.
35. State has claimed that there were in aggregate two acquisition proceedings being LA Case No. 27/1 and LA Case 21 No. 29/1 in respect of the same project. In respect of these two acquisition proceedings, four writ petitions including the present writ petition under consideration, had been filed before the High Court.
36. The first writ petition in point of time, was CO No. 13775 (W) of 1994 which had been disposed of on April 29, 1997 and concerns the subject plots in question in this appeal.
37. The next writ petition in order of time is WP No. 654 of 2004 (M/s. Rungta Agencies Ltd and others versus State of West Bengal) which was disposed of by a judgement and order dated September 25, 2008. By such judgement and order, the learned Single Judge had held that, the plots of land involved therein were not acquired in accordance with law. Learned Single Judge had directed release of such plot of land in favour of the writ petitioners therein. Both the appellants before us as well as the State had carried appeals against the judgement and order dated September 25, 2008 passed in WP No. 654 of 2004 being APO No. 66 of 2009 and APO No. 67 of 2009. Both such appeals had been disposed of by a judgement and order dated February 21, 2013. The appeal court has held 22 that, notice under section 9 (3B) was never given. Appeal court has affirmed the judgement and order dated September 25, 2008 passed in WP No. 654 of 2004.
38. The next writ petition in order of time is WP No. 3719 (W) of 2005. Such writ petition was also allowed by directing the authorities to release the land in question to the subsequent purchasers. Appeal preferred there from being FMA 1120 of 2010 was disposed of by an order dated January 3, 2013 by directing the acquiring authorities to hear the subsequent purchasers on the basis of the notice dated May 17, 2004. Special leave petition preferred against the order dated January 3, 2013 was dismissed.
39. Parties before us are bound by the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994 which had directed the authorities to make over possession of the plots of land in question to the predecessor in interest of the writ petitioner herein, after holding that there was no requisition proceeding. Such direction not being complied with, the subsequent writ petition was filed in respect of the same plots, by persons claiming to be the owners thereof.
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40. It is in this factual matrix that, the contention that, a writ petition is not maintainable by a person claiming to be a purchaser subsequent to the vesting, is required to be considered.
41. In the facts and circumstances of the present case, the High Court has held that, there was no requisition proceedings for the plots of land concerned. Such finding is binding upon the parties before us. Such finding was rendered on a writ petition filed by the predecessor in title to the writ petitioner before us.
42. There being no requisition proceedings in respect of the 3 plots of land involved, and the State having stated in their affidavit affirmed as February 7, 2025 that as notice under Sections 4 or 6 of the Act of 1894 being issued, the question of vesting of the same with the State, free from all encumbrances does not arise. Vesting not having taken place, the predecessor in title was entitled to deal with the 3 plots of land including selling the same which, the predecessor in title did to the writ petitioner. Such sale cannot be said to be invalid or the writ petitioner before us not to have acquired any right, title and interest in respect of such plots of land. 24 Writ petitioner before us cannot be considered to be a "post- vesting" purchaser with no vesting taking place prior to his purchaser.
43. Authorities cited at the bar that a post-vesting purchaser has no locus standi to question a requisition/acquisition proceeding are not attracted to the facts and circumstances of the present case, as there was no vesting of the plots of land concerned.
44. Appellants and State have cited various authorities on the issue of res judicata. The last of such authorities cited, in order of time, is BSK Realtors LLP (supra) which has held that, a previous decision of a competent court on facts which are foundation of right and relevant law applicable to determination of transaction which is the source of right, is res judicata. The previous decision on the matter in issue is a composite decision. Decision of law cannot be dissociated from decision on facts on which the right is founded. A decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if cause of action of subsequent proceeding is the same as in previous proceeding, but not when cause of action is different, nor 25 when law has since the earlier decision, been altered by a competent authority, nor when the decision relates to jurisdiction of courts to try the earlier proceeding, nor when earlier decision declares valid a transaction which is prohibited by law.
45. In the facts and circumstances of the present case, the cause of action of the writ petitioner is not different from that of the earlier writ petitioner being its predecessor in title. Law applicable, since the earlier decision has not been altered by a competent authority, High Court which had decided the earlier writ petition cannot be said to be without jurisdiction or had by its earlier decision declared a transaction valid which is prohibited by law.
46. None of the grounds which exempts the applicability of the principles of res judicata as noted in BSK Realtors LLP (supra) stands attracted in the facts and circumstances of the present case.
47. Intricacies of Section 9 of the Act of 1894 including the authorities of May George (supra) and the line of cases following it, need not be considered as, the High Court had set aside the requisition/acquisition proceeding in respect of the 26 plots of land by the judgement and order dated April 29, 1997 passed in CO No. 13775 (W) of 1994. State has admitted in its affidavit affirmed on February 7, 2025 that, no fresh notice under section 4 and 6 of the Act of 1894 were issued and/or published in the Calcutta Gazette, in respect of the plots of land involved.
48. There being no requisition/acquisition proceedings in respect of the plots of land involved, State and the appellants are in wrongful possession thereof.
49. Learned Single Judge by the impugned judgement and order has directed the authorities to issue formal order of de- requisition of the plots involved to the writ petitioner. Learned Single Judge has also granted liberty to the State to initiate fresh acquisition proceeding.
50. The parties before us being bound by the order dated April 29, 1997 passed in CO No. 13775(W) of 1994 which has held that there was no requisition proceeding and in view of the affidavit of the State affirmed on February 7, 2025 we modify the directions of the learned Single Judge relating to the issuance of formal order of derequisition to one of a direction to make over actual physical possession of the plots 27 to the writ petitioner within four weeks from date. Other direction of the learned Single Judge is affirmed.
51. In view of the discussions above, we do not find any merit in the appeal or the cross objection.
52. In view of the discussions above FMA 177 of 2024, COT 81 of 2024 along with all connected applications are disposed of without any order as to costs.
[DEBANGSU BASAK, J.]
53. I agree.
[MD. SHABBAR RASHIDI, J.]