Supreme Court of India
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITYversusPRADIP KUMAR GHOSH & OTHERS
- Citation
- 2017 INSC 1045
- Decided
- 24 October 2017
- Disposal
- Appeal(s) allowed
- Bench
- ARUN MISHRA
Holding
The requisition under s.3 continued until a release order under s.6 was made; consequently the acquisition under s.4 was lawful and the Division Bench’s quashing of the acquisition was erroneous.
Summary
The Kolkata Metropolitan Development Authority (KMDA) appealed against a Division Bench order that quashed its acquisition of a flat requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948. The property had been under requisition since 1979 and the High Court, in 1993, directed the Land Acquisition Collector to acquire it within six months or, failing that, to release it within another six months. No release order under s.6 was ever made, and a notification under s.4 for acquisition was issued in 1996. The Supreme Court held that the requisition continued until a formal release order was passed, and therefore the statutory power to acquire under s.4 remained valid. The Court rejected the Division Bench’s view that the acquisition was illegal, restored the Single Bench order, and allowed the appeal.
Issues considered
- The effect of the High Court’s 1993 mandamus directing acquisition or release on the continuance of the requisition under s.3 of the West Bengal Act.
- Whether the failure to issue a release order under s.6 automatically derequisitioned the property, rendering the later acquisition under s.4 void.
- Whether a mandamus can be interdicted by a subsequent statutory provision.
- Whether the acquisition was mala fide or a colourable exercise of power.
- Whether the doctrine of res judicata applies to the statutory acquisition proceedings.
Legislation cited
- Code of Civil Procedure, 1908s. 151
- Constitution of Indias. Article 226
- Contempt of Courts Act
- Land Acquisition Act, 1894s. 49
- West Bengal Land (Requisition and Acquisition) Act, 1948s. 3, s. 4, s. 5, s. 6
Subjects
land acquisitionrequisitionmandamusstatutory interpretationpublic purposeres judicatacontempt of courtWest Bengal Land (Requisition and Acquisition) Act
Judgment
[2017] 10 S.C.R. 229
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY
v.
PRADIP KUMAR GHOSH & OTHERS
(Civil Appeal No. 461 of2009)
OCTOBER 24, 2017 B
[ARUN MISHRA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
West Bengal Land (Requisition and Acquisition) Act, 1948:
ss. 3, 4 and 5 - Land acquisition, for development of Calcutta - C
Property handed over to Development Corporation - Property
requisitioned in year 1979, by issuance of notification u!s. 3( I) -
Requisitioned continued for long for 14 years - Challenge to - In
writ petition,. Single Judge of the High Court by order dated
· 10.03.1993, did not quash notification issued u/s. 3( 1) but directed
the authorities to acquire the properties within 6 months and if the D
authorities did not acquire the property within the time specified,
the Land Acquisition Collector to release the property under
requisition and restore the possession to the petitioner - Thereafter,
some delay in initiating the land acquisition proceedings - l5suance
of notification u!s. 4( /)(a) for acquisition of premises - However,
E
the Division Bench held that requisition ·u/s. 3( I) deemed to have
been lapsed, as such acquisition was illegal ~ Held: To enforce an
order it should be effective on date mandamus is sought to be enforced
- ft can be interdicted by another order or by statutory intervention
- By virtue of s. 6, until and unless r~lease order is passed and
delivery of possession pursuant thereto takes place, the requisition F
would continue - In the instant case, court had not quashed the
order of requisition and has not ordered that on lapse of 6 months
period grallted for acquisition and further period of 6 months
property shall stand derequisitioned - Direction was issued to the
L.A.C. to release the property from requ45ition - There was no G
automatic consequence of the de-requisition on lapse of specified
time - Thus, if the property had not been released u/s 6 obviously
the requisition continued and statutory power of acquisition could
have been exercised - Requisition continued until the dot!' <if
acquisition notification and there was no time limit for i11itiMin
'I
229
230 SUPREME COURT REPORTS [2017] JO S.C.R.
A acquisition - It is not a case that order was void but statutory power
has been exercised - As statutory power has been exercised, the
statutory action is not stifled by the order of the court - Thus, the
Division Bench of the High Court erred in law in quashing the
acquisition - Order passed by the Division Bench set aside and
that of the Single Bench is restored.
B
Allowing the appeal, the Court
HELD: 1.1 It is apparent from ss. 3 and 4 of the West Bengal
Land (Requisition and Acquisition) Act, 1948 that the property
that is under re<1uisition can only be acquired. Requisition is a
c sine qua non for a property as on the date when notification under
section 4 is issued. Section 3 had 'been omitted w.e.f. 1.4.1994.
However the property was requisitioned before the provision
was omitted. It is apparent that Section 6 requires an order to be
passed by the State Government for release of the property from
requisition. Government has to conduct an inquiry if any,
D considered necessary then the release order has to be passed
and possession of the property has to be delivered under section
6. Section 6(2) also provides that even if possession has been
delivered pursuant to a release order, the same shall not prejudice
any right in respect of such land, if any other person may be
E entitled by due process of law to enforce against the person to
whom possession of land was delivered. In the instant case, the
High Court has not directed delivery of possession and
possession had not been handed over. Thus, by virtue of the
provisions contained in section 6, until and unless release order
is passed and delivery of possession pursuant thereto takes place,
F the requisition would continue. [Paras 11-13] [243-H; 244-A, G-
H; 245-A-B]
Collector of Kamrup & Ors. v. Kamakhya Ram Barooah
etc. AIR 1965 SC 1301; H.D. Vora v. State of
Maharashtra & Ors. (1984) 2 SCC 337 : [1984] 2 SCR
G 693; Jiwani Kumar Paraki v. First land Acquisition
Collector, Calcutta & Ors. (1984) 4 SCC 612 : [1985]
1 SCR 686; Grahak Sanstha Manch & Ors. v. State of
Maharashtra (1994) 4 SCC 192 - referred to.
1.2 To enforce an order it should be effective on date
H mandamus is sought to be enforced. H can be interdicted by
KOLKATA METROPOLITAN DEVEWPMENT AUTHORITY v. 231
PRADIP KUMAR GHOSH & ORS.
another order or by statutory intervention. [Para 19] [249-D] A
Comptroller and Auditor-Gerreral of India, Gian
Prakash, New Delhi & Am: v. K.S. Jagannathan & Anr.
(1986) 2 SCC 679 : [1986] 2 SCR 17; Andi Mukta
Sadguru Shree Muktajee Va11das Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani B
& Ors. (1989) 2 SCC 691 : {1989] 2 SCR 697:
Mansukhlal Vithaldas Chauhan v. State of Gujarat
(1997) 7 SCC 622 : [1997] 3 Suppl. SCR 705; State of
A.P. & Ors. F. Raja Shri V.S.K. Krishna Yachandra
Bahadur Varuh Rajah of Venkatagiri & 01:1·. (2002) 4
SCC 660; Director of Settlements, A.P. & Ors. \'. M.R.
c
Apparao & Anr. (2002) 4 SCC 638 : [2002] 2 SCR
661 - referred to.
1.3 In the instant case, the nature of mandamus that has
been issued on 10.9.1993 has to be considered.· Firstly the court
had not quashed the order of requisition. Apart from that, the D
court has not. ordered that on lapse of 6 months period granted
for acquisition and further period of 6 months property shall stand
derequisitioned. The direction was issued to the L.A.C. to release
the property in question from requisition. It was not an automatic
consequence of the command issued. Thus, if the property had E
not been released under section 6 obviously the re<1uisition
continued and statutory power of acquisition could have IJeen
exercised. [Para 221 [254-C-E]
1.4 In the instant case, as the High Court has not quashed
the notification under section 3 and till derequisition was actually F
made, once statutory power had been exercised under section 4
which could be exercised when requisition continues and that· as
a matter of fact, continued as the court had not culled out the
consequence, there was. no automatic consequence of the de-
requisition on lapse of specified time. Proceedings under section
6 were required to be undertaken. No order of release was passed. G
Requisition continned until the date of acquisition notification
and there was no time limit for initiating acquisition under the
Act. The statutory provision would not be stultified by the
command so issued by the High Court in view of the decision of
this Court in Jacob case. Though, Single Judge has opined that H
232 SUPREME COURT REPORTS [2017] IO S.C.R.
A considering the order, it would be a case of violation of the order
to be dealt with under the Contempt of Courts Act. However,
when statutory provision had been invoked for acquisition, there
is no question of applicability of contempt of court also as laid
down in Jt1coh '.5 case. [Para 241 [257-C-El
B First Land Acquisition Collector & Ors. v. Nirodhi
Prakash Gangoli & Anr. (2002) 4 SCC 160 : [20021 2
SCR 326; Ravi S. Naik v. Union of India & Ors. (1994)
Supp 2 SCC 641 : [19941 1 SCR 754; Ma11ohar Lal v.
Ugrasen (2010) 11 SCC 557 : (2010] 7 SCR 346 -
referred to.
c General Manage1; Department of Telecomm1111ications,
Thiruvananthapuram v. Jacob slo Kochuvarkey Kallimh
(dead) by LRs. & Ors. (2003) 9 SCC 662 : [2003] 3
SCR 214 - relied on.
Patasi Devi v. State of Hw:vana (2012) 9 SCC 503 :
D [2012] 7 SCR 387 - distinguished.
1.5 It was submitted that even if the order is void, it is
required to be so declared by the compl'tent forum. It is not
permissible to ignore it. It is not the case that the order was void
but statutory power has been exercised, considering the nature
E of command that has been issued in the previous order dated
10.9.1993. [Para 26] 1257-H, 259-C]
Krishnadevi Malchand Kamathia & Ors. v. Bombay
Environmental Action Group & Ors. (2011) 3 SCC 363 :
12011 J 3 SCR 291 - held inapplicable.
F 1.6 There is no question of applicability of res judicata in
the instant case. As statutory power has been exercised the
statutory action is not stifled by the order of the court. It was
stated that the land was proposed to be sold but the appellants
had made it clear that they are not going to sell the property.
G [Para 27] (259-F-G]
Mohan/al Goenka v. Benoy Krishna Mukherjee & Ors.
AIR 1953 SC 65 : (1953] SCR 377; Municipal
Corporation of Greater Bombay v. Industrial
Development Investment Co. Pvt. Ltd. & Ors. (1996) 11
H SCC 501 : [1996] 5 Suppl. SCR 551 - referred to.
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 233
PRADIP KUMAR GHOSH & ORS.
1.7 The Division Bench of the High Court erred in law· in A
quashing the ac<1uisition. The order passed by the Division Bench
of the High Court is set aside and that of the Single Bench is
restored. [Para 28] [260-A-B]
Collector of Kamrup & Ors.v. Kamakhya Ram Barooah
etc. AIR 1965 SC 1301 - referred to. B
Case Law Reference
AIR 1965 SC 1301 referred to Para4
[1984] 2 SCR 693 referred to Para 7
[1985] 1 S.CR 686 referred to Paras c
(1994) 4 sec 192 referred to Para 9
[1986] 2 SCR 17 referred to Para 16
[1989] 2 SCR 697 referred to Para 16
[1997] 3 Suppl. SCR 705 referred to Para 17 D
(2002) 4 sec 660 referred to Para 18
[2002] 2 SCR 661 referred to Para 18
[2002] 2 SCR 326 referred to Para 20
E
[1994] l SCR 754 referred to Para 21
[2010] 7 SCR 346 referred to Para 21
[2003] 3 SCR 214 relied on Para 23
[2012] 7 SCR 387 distinguish eel Para 25
F
[2011] 3 SCR 291 held inapplicable Para 26
[1953] SCR 377 referred to Para 27
[1996] 5 Suppl. SCR 551 referred to Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 461' of G
2009.
From the Judgment and Order dated 27 .04.2007 of the High Court
of Calcutta in F. M.A. No. 694 of 2000.
Mukul Rohtagi, Ravindra Srivastava, Sr. Ad vs., Ms. Anindita Gupta,
. Rajesh Srivastava, Soumitra G. Chaudhuri, Chanchal Kumar Ganguli, H
234 SUPREME COURT REPORTS [~017] 10 S.C.R.
A Pradip K. Tarafdar, Mrs. Asha Gopalan Nair, Ms. Nivedita Nair, Advs.
for the appearing parties.
The Judgment of the Court was ·delivered by
ARUN MISHRA, J. 1. Aggrieved by the quashing of land
acquisition proceedings initiated under the West Bengal Land (Requisition
B and Acquisition) Act, 1948 (hereinafter referred to as "the Act") notice
under section 4(1 )(a) was published in the Gazette on 14.10.1996 and
also notice under section 5 of the Act. The property in question had been
requisitioned under the provisions of the Act by the issuance of notification
under section 3(1) since requisition continued for long for 14 years. It
c was questioned by filing a writ petition i.e. CR 15177 (W) of 1979 disposed
ofon 10.9.1993: The High Court of Calcutta did not quash the notification
issued under section 3(1 ), passed an order directing the concerned
authorities to acquire the properties in question if so desired within a
period of 6 months from the date of communication of order and if the
authorities did not acquire the property within the time specified the
D Land Acquisition Collector was directed to release the property under
requisition and restore possession of the same to the writ petitioner.
2. Thereafter there was some delay in initiating the land acquisition
proceedings. The notification under section 4( 1)(a) of the Act had been
issued on 14.10.1996 for the acquisition of premises No. I I, Sarat Bose
E Road, Kolkata. Questioning the same, fresh petition - Writ Petition
No.4361 (W) of 1997 was filed. Award was passed determining the
compensation in a sum ofRs.7,69,950/-. The writ petition was dismissed
by the Single Bench vide order dated 11.3.1998. It was held by the
Single Bench that in case the order dated 10.9.1993 was not complied,
F by the concerned authorities they would be liable for contempt of court
and may be dealt with in accordance with law in the contempt
proceedings, but the mere fact that possession of the property was not
restored, in view of the order passed on I0.9 .1993 the same would not
disentitle the authority in taking steps for acquisition of the property.
G
3. As against dismissal of the writ petition, appeal MATNo.1165/
1998 had been preferred before the Division Bench. The Division Bench
has allowed the same vide impugned judgment and order. The Government
of West Bengal had conveyed the property by registered deed of
conveyance on 21.12.2004 to Kolkata Metropolitan Development
Authority for development. A Division Bench of the High Court has
H allowed the appeal. It was held that requisition unde1 section 3( 1) of the
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 235
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
Act deemed to have been lapsed, as such the acquisition was illegal. A
Aggrieved thereby the appeal has been preferred by the Kolkata
Metropolitan Development Authority. \,
4. It was urged on behalf of the appellants that the High Court
did not quash the notification relating to requisition issued under section
3( 1) of the Act, but only issued a direction that the requisition should not B
continue for an indefinite period. Thus either the land was to be acquired
or it should have been released from the requisition. The requisition
continued and a notification under section 4(1 )(a) of the Act had been
issued. Award has been passed. Thus the property has vested in the
State Government. The order of reacquisition did not lapse. The C
acquisition made was lawful. The ratio of Collector of Kamrup & Ors. v.
Kamakhya Ram Barooah etc. AIR 1965 SC 1301 was not attracted.
The only question for consideration was the effect of the order-dated
10.9.1993. The requisition came to an end on the issuance of notification
under secciun 4(1) of the Act. There was no embargo created by orders
of the court to exercise statutory power for the purpose of acquisition. D
5. Shri Mukul Rohtagi, learned senior counsel appearing for the
respondents urged that the property had continued for a period.of more
than 14 years in requisition. Thus the High Court has passed an order on
10.9.1993 that the requisition was illegal and impermissible. A direction
was issued to release the property in case the property was not acquired E
within the time specified. As the State Government had not acted under
the Act, it was a gross dereliction of statutory duty not to release the
property. The requisition came to an end and under the provisions of the
Act property under requisition could have been acquired. It was a pre-
condition that the property should be under requisition for the purpose of
acquisition. Power of the High Court to issue mandamus is wide and F
untrammeled. As the State Government failed to act as per the mandamus
it was not open to acquiring the property later on. The consequence of
not acquiring the property within the time specified was the release of
the property and to restore the possession. The LAO had no option but
to restore the same within 6 months as stipulated in the order passed in G
1993. The requisition came to an end on the lapse of 6 months period on
· 10.3.1994 and a further period of 6 months also expired on 10.9.1994
during which period property was to be released. Under no circumstances,
requisition would continue after that period. In view of the decision in
Collector of Kamrup (supra) the property did not remain under
H
236 SUPREME COURT REPORTS [2017] 10 S.C.R.
A acquisition, as such notification for acquisition under section 4 (1) (a)
was clearly ultra vires of the powers. It was also contended that the
property was not used for the purpose it was required. As the appellant
had offered the property for commercial sale in the market by inviting
public bids, the acquisition was wholly unjustified and deserves to be
quashed. The notification under section 4 of the Act and notice under
B
section 5 was issued in violation of orders of the court-dated 10.9.1993.
The notification for acquisition was a· nullity and void ab-initio being
contemptuous to the order passed by the High Court. As observed in
Ravi S. Naik v. Union of India & Or~. (1994) Supp 2 SCC 641 and
Manolwr Lal (dead) by LRs. v. Ugrasen (dead) by LRs. & Ors.
C (2010) 11SCC557 the acquisition was colourable and mala fide exercise
of power. Even an erroneous decision operates as res j11dicata between
the parties as court's order of 1993 was binding. Even if an order is void
the parties cannot determine it. A party aggrieved by invalidity has to
approach the court for invalidation that the order against is inoperative.
D Such a declaration permissible if the court lacks inherent jurisdiction
hence the order of 10.9.1993 was binding. The power of judicial review
has been rightly exercised by the Division Bench to undo the injustice
and overreach of the State power.
6. The property had been requisitioned in the year 1979. The
requisition continued for long. As the Single Bench passed an order on
E
10.9.1993, on the ground that the requisition should not continue for long.
The requisition was not in fact quashed but a direction was issued either
to acquire the property within 6 months and in case it was not so acquired
within the time specified, Land Acquisition Collector was to initiate
proceedings within next 6 months thereafter for release.
F 7. The requisition cannot last for long was laid down in H.D.
Vora v. State of Maharashtra & Ors. (1984) 2 SCC 337 thus:
"6. But it was contended on behalf of the appellant that even if
the order of requisition was invalid as having been made for a
purpose other than a public purpose, Respondent 3 was not
G entitled to challenge the same after a lapse of over 30 years and
the writ petition should, therefore, have been dismissed by the
High Court. Now if the only ground on which the order of
requisition was challenged in the writ petition was that it was not
made for a public purpose and was therefore void, perhaps it
H might have been possible to successfully repd this ground of
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 237
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
challenge by raising an objection that the High Court should not A
have entertained the writ petition challenging the order of
requisition after a lapse of over 30 years. But we find that there
is also another ground of challenge urged on behalf of Respondent
3 and that is a very formidable ground to which there is no answer.
The argument urged under this ground of challenge was that an B
order of requisition is by its very nature temporary in character
and it cannot endure for an indefinite period of time and the
order of requisition in the present case, therefore, ceased to.be
valid and effective after the expiration of a reasonable period of
time and that it could not, under any circumstances, continue for
a period of about 30 years and hence it was liable to be quashed C
and set aside or in any event the State Government was bound
to revoke the same and to derequisition the flat. This contention
has, in our opinion, great force and must be sustained. There is a
basic and fundamental distinction recognised by Jaw between
requisition and acquisition. The Constitution itself in Entry 42 of D
List III of the Seventh Schedule makes a distinction between
acquisition and requisitioning of property. The original Article 31
clause (2) of the Constitution also recognised this distinction
between compulsory acquisition and requisitioning of property.
The two concepts, one of requisition and the other of acquisition
are totally distinct and independent. The acquisition means the E
acquiring of the entire title of the expropriated owner whatever
the nature and extent of that title may be. The entire bundle of
rights which was vested in the origiqal holder passes on acquisition
to the acquirer leaving nothing to the former. Vide: Observations
of Mukherjee, J., in Chiranjit Lal case AIR 1951 SC 41. The
F
concept of acquisition has an air of permanence and finality in
that there is transference of the title of the original holder to the
acquiring authority. But the concept ofrequisition involves merely
taking of "domain or control over property without acquiring rights
of ownership" and must by its very nature be of temporary
duration. If requisitioning of property could legitimately continue G
for an indefinite period of time, the distinction between requisition .
and acquisition would tend to become blurred, because in that
event for all practical purposes the right to possession and
enjoyment of the property which constitutes a major constituent
element of the right of ownership would be vested indefinitely
H
238 SUPREME COURT REPORTS [2017) 10 S.C.R.
A without any limitation of time in the requisitioning authority and it
would be possible for the authority to substantially take over the
property without acquiring it and paying full market value as
compensation under the Land Acquisition Act, 1894. We do not
think that the Government can under the guise of requisition
continued for an indefinite period of time, in substance acquire
B
the property, because that would be a fraud on the power
conferred on the Government. If the Government wants to take
over the property for an indefinite period of time, the Government
must acquire the property but it cannot use the pO\yer of
requisition for achieving that object. The power of requisition is
c exercisable by the Government only for a public purpose which
is of a transitory character. If the public purpose for which the
premises are required is of a perennial or permanent character
from the very inception, no order can be passed requisitioning
the premises and in such a case the order of requisition, if passed,
would be a fraud upon the statute, for the Government would be
D
requisitioning the premises when really speaking they want the
premises for acquisition, the object of taking the premises being
not transitory but permanent in character. Where the purpose
for which the premises are required is of such a character that
from the very inception it can never be served by requisitioning
E the premises but can be achieved only by acquiring the property
wi,;.::h would be the case where the purpose is of a permanent
character or likely to subsist for an indefinite period of time, the
Government may acquire the premises but it certainly cannot
requisition the premises and cont!nue the requisitioning indefinitely.
Here in the present case the order of requisition was made as
F
far back as April 9, 1951, and even it it was made for housing a
homeless person and the appellant at that time fell within the
category of homeless person, it cannot be allowed to continue
for such an inordinately long period as thirty years. We must
therefore hold that the order of requisition even if it was valid
G when made, ceased to be valid and effective after the expiration
of a reasonable period of time. It is not necessary for us to decide
what period of time may be regarded as reasonable for the
continuance of an order of requisition in a given case, because
ultimately the answer to this question must depend on the facts
and circumstances of each case but there can be no doubt that
H
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 239
PRADIP KUMAR GHOSH & OR~. (ARUN MISHRA, J.]
whatever be the public purpose for which an order ofrequisition A
is made, the period of time for which the order of requisition
may be continued cannot be an unreasonably long period such
as thirty years. The High Court was, therefore, in any view of
the matter, right in holding that in the circumstances the order of
requisition could not survive any longer and the State Government B
was bound to revoke the order of requisition and derequisition
the flat and to take steps to evict the appellant from the flat and
to hand over vacant possession of it to Respondent 3."
8. It was also held in Jiwani Kumar Paraki v. First Land
Acquisition Collector, Calcutta & Ors. (1984) 4 SCC 612 that the
requisition cannot continue for long and property should be acquired if C
necessary. This Court observed:
9"22. In view of the decision in the case of H.D. Vora (supra)
in the light of the decision of this Court rendered by Bench of
three Judges in Collector of Ako/av. Ramchandra AIR 1968
SC 244 and bearing in mind the distinction between "requisition" D
and "acquisition" as also the provisions of West Bengal amended
Section 49( l) (quoted above), the eorrect'position in law would
be that it will not be correct to say that in no case can an order of
requisition for permanent purpose be made but in a situation where
the purpose of requisitioning the property is of a permanent E
character and where the Government has also the power and
the opportunity to acquire the propc1ty or a part thereof especially
upon the fulfilment of the conditions of Section 49( 1) of the Land
Acquisition Act (as amended by the West Bengal Act) to the
extent applicable, if the Government chooses not to exercise
that power nor attempts to exercise that power to achieve its F
purpose, then that will be bad not because the Government would
be acting without power of requisition but the Government might
be acting in a bad faith. In other words, if there is power to
acquire as also the power to requisition and the purpose is of
pernmncnt nature by having the property or a part thereof for G
the Government then in such case to keep the property under
requisition permanently might be an abuse of the power and a
colourable exercise of the power not because the Government
lacks the power of requisition but because the Government does
not use the other power of acquisition which will protect the
rights and interests of the parties better. H
240 SUPREME COURT REPORTS [:2017] 10 S.C.R.
A 24. It is true that the purpose indisputably in the instant case is a
public purpose. It is also true that the only part of the building
namely one room has been requisitioned for the showroom but
the premises in question has remained under requisition for over
25 years and the purpose of having the premises in question is of
a permanent and perennial nature. But that by itself without
B
anything more would not enable the Court to draw the inference
that the ext:rcise of the power was bad initially, nor would the
continuance of the requisition become mala fide or colourable
by mere lapse of time. In order to draw such an inference, some
more material ought to have been placed before the Court. In
c the circumstances after having heard counsel on either side fully,
we feel that the following would be an appropriate order to be
made in the instant case:
( l) The impugned requisition order is upheld but the continuance
of the requisition of the premises in question is permitted subject
D to the conditions mentioned hereinafter.
(2) The Government is directed to take steps to acquire premises
in question by complying with the conditions mentioned and by
following the procedure prescribed in Section 49( I) of the Land
Acquisition Act, 1894 as substituted for the State of West Bengal
E by the West Bengal Act 32 of 1955 and if possible issue an
appropriate order acquiring the same if Government wants the
continued use of the premises. Such steps should be completed
within a period of three years from today.
(3) If, however, there are insurmountable difficulties in acquiring
F the premises under Section 49(1), the Government will be at
liberty to apply to this Court for appropriate directions.
(4) We also hope that the Gove1nment would take steps to acquire
any alternative property or prernises under Land Acquisition Act,
1894 in view of the fact that the purpose of the Government is
G more or less permanent and such steps should also be taken not
beyond a period of three years as aforesaid.
(5) If the aforesaid conditions or directions are not complied
with, the petitioner will also be at liberty to apply to this Court for
appropriate directions in accordance with law.
H
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 241
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
(6) In the meantime, the parties are at liberty to make any A
appropriate application for the enhancement of rent or
compensation in accordance with law, if they are so entitled to,
and this will also not prejudice the parties from proceeding with
any suit for damages etc. that may be pending."
9. In Grahak Sans/ha Manch & Ors. v. State of Maharashtra B
(1994) 4 SCC 192 a Constitution Bench of this Court has observed that
the requisition cannot continue indefinitely. This Court observed:
"16. We find ourselves in agreement with the view taken in the
cases of Collector of Akola AIR 1968 SC 244 and Jiwani
Kumar Paraki (1984) 4 SCC 612 that the purpose ofarcquisition C
order may be permanent. But that is not to say that an order of
requisitioning can be continued indefinitely or for a period of
time longer than that which is, in the facts and circumstances of
the particular case, reasonable. We note and approve in this
regard, as did this Court in Jiwani Kumar Paraki case, the
observations of the Nagpur High Court in the case of Mangila/ D
Karwa v. State of M.P AIR 1955 Nag. 153 which have been
reproduced above. That the concept of requisitioning· is
temporary is also indicated by the Law Commission in its Tenth
Report and, as pointed out earlier, by the terms of the said Act
itself, as it originally stood and as amended from time to time. E
There is no contradiction in concluding that while a requisition
order can be issued for a permanent public purpose, it cannot be
continued indefinitely. Requisitioning might have to be resorted
to for a permanent public pw·pose, to give an example, to tide
over the period of time required for making permanent premises
available for it. The concepts of acquisition and requisition are F
altogether different as are the consequences that flow therefrom.
A landlord cannot, in effect and substance, be deprived of his
rights and title to property without being paid due compensation,
and this is the effect of prolonged requisitioning. Requisitioning
may be continued only for a reasonable period; what that period G
should be would depend upon the facts and circumstances of
each case and it would ordinarily, be for the Government to
decide."
H
242 SUPREME COURT REPORTS [2017) 10 S.C.R.
A 10.0n 10.9.1993 the High Court at Calcutta had passed the
following directions in the previous writ application pertaining to
requisition:
"1. Since the order of requisition has been continuing the year
1979, the concerned Land Acquisition Collector is directed to
B acquire the property in question, if the authority so desires, within
six months from the date of communication of this Order.
2. If the concerned authority do.es not acquire the property in
question within the time specified hereinabove, the Land
Acquisition Collector is directed to releas.e the property in question
C from requisition and restore possession of the same to the writ
petitioner within ......... months thereafter."
The direction was two-fold; one to acquire property in 6 months
and secondly on failure to acquire within 6 months to release the property
within next 6 months. There was no automatic release contemplated in
o the order neither the notification unde,r section 3 of the Requisition of
Property issued way-back in the year 1979 had been quashed.
11. Sections 3 and 4 of the Act are relevant and they are extracted
hereunder:
"3. Power to requisition. -(1) If the State Government is of
E the opinion that it is necessary so to do for maintaining supplies
and services essential to the life of the community or for
increasing employment opportunities for the people by establishing
commercial estates and industrial estates in different areas or
for providing proper facilities for transport, communication,
irrigation or drainage, or for the creation of better living conditions
F
in rural or urban areas, not being an industrial or other area
excluded by the State Government by a notification in this behalf,
by the construction or reconstruction of dwelling places in such
areas or for purposes connected therewith or incidental thereto,
the State Government may, by order in writing, requisition any
G land and may make such further orders as appear to it to be
necessary or expedient in connection with the requisitioning:
Provided that no land used for the purpose of religious worship
or used by an educational or charitable iiistitution shall be
requisitioned under this section.
H
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 243 ·
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
(I A) A Collector of a district, an Additional District Magistrate A
or the First Land Acquisition Collector, Calcutta when authorized
by the State Government in this behalf, may exercise within his
jurisdiction the powers conferred by sub-section (1 ).
(2)An order under sub-section (1) shall be served in the prescribed
manner on the owner of the land and where the order relates to B
land in occupation of an occupier, not being the owner of the
land, also on such occupier.
(3) If any person fails to comply with an order made under sub-
section (l ), the Collector or any person authorized by him in
writing in this behalf shall execute the order in such manner as c
he considers expedient and may, -
(a) if he is a Magistrate, enforce the delivery of possession of
the land in respect of which the order has been made to
himself, or
(b) ifhe is not a Magistrate, apply to a Magistrate or, in Calcutta D
as defined in clause (11) of section 5 of the Calcutta
Municipal Act, 1951, to the Commissioner of Police, and
such Magistrate or Commissioner, as the case may be, shall
enforce the delivery of possession of such land to him".
4. Acquisition of land.-(1) Where any land has been E
requisitioned under section 3, the State Government may use or
deal with such land for any of the purposes referred to in sub-
section ( 1) of section 3 as may appear to it to be expedient.
(la) The State Government may acquire any land requisitioned
under section 3 by publishing a notice in the Official Gazette that F
such land is required for a public purpose referred to in sub-
section (1) of section 3. ·
(2) Where a notice as aforesaid is published in the Official Gazette,
the requisitioned land shall, on and from the beginning of the day
on which the notice is so published, vest absolutely in the State G
Government free from all encumbrances and the period. of
requisition of such land shall end.'~
It is apparent from the aforesaid provisions that the property that
is under requisition can only be acquired. Requisition is a sine qua non
for a property as on the date when notification under section 4 is issued. H
244 SUPREME COURT REPORTS [2017) !O ).C.R.
A Section 3 had been omitted w.e. f. 1.4.1994. However the property was
requisitioned before the provision was omitted.
12. Section 6 deals with release from requisition. Section 6 is
extracted hereunder :
"6. Release from requisition.-(1) Where any land
B requisitioned under section 3 is not acquired and is to be released
from requisition, the State Government may, after making such
inquiry, if any, as it considers necessary, specify by order in writing
the person who appears to it to be entitled to the possession of
such land.
c (2) The delivery of possession of such land to the person specified
in the order made under sub-section (I) shall be a full discharge
of any liability of the State Government for any claim for
compensation or other claim in respect of such land for any period
after the date of delivery but shall not prejudice any right in respect
D of such land which any other person may be entitled by due
process of law to enforce against the person to whom possession
of the land is so delivered.
(3) Where the person specified in the order made under sub-
section (I) cannot be found or is not readily traceable or has no
E agent or other person empowered to accept delivery on his behalf,
the State Government shall publish in the Official Gazette a notice
declaring that such land is release from requisition and shall cause
a copy thereof to be affixed on some conspicuous part of such
land.
F (4) Where a notice referred to in sub-section (3) is published in
the Official Gazette, the land specified in such notice shall cease
t9 be subject to requisition on and from the date of such publication
and shall be deemed to have been delivered to the person
specified in the order made under sub-section (I): and the State
Government shall not be liable for any compensation or other
G claims in respect of such land for any period after the said date."
It is apparent that section 6 requires an order to be passed by the
State Government for release of the property from requisition.
Government has to conduct an inquiry if any, considered necessary then
the release order has to be passed and possession of the property has to
H be delivered under section 6. Section 6(2) also provides that even if
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 245
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
possession has been delivered pursuant to a release order, the same A
shall not prejudice any right in respect of such land, if any other person
may be entitled by due process of.Jaw to enforce against the person. to
whom possession of land was delivered. ·
13~ The High Court in the instant case has not directed delivery of
possession and possession had not been handed over. Thus by virtue of B
the provisions contained in section 6, until and unless release order is
passed and delivery of possession pursuant thereto takes place, the
requisition would continue.
14. In The Collector of Kamrup & Ors. v. Kamakhya Ram
Barooah & Ors. (supra), this Court has laid down that the power to c
acquire the land under section 4 can be exercised only when land has
been requisitioned unc\er section 3 and not otherwise. This court in the
said case has observed:
"(4). The power to acquire land under s. 4 may, it is plain from a
bare perusal of sub-s. (1 ), be exercised where the land has been D
requisitioned under s. 3 and not otherwise. In the present case,
an order for acquisition of the land was ma\Je in the first instance
and presumably because it was .realized that the order was
defective and irregular. it was soughtto be rectified by passing
an order on August 4, 1949, requisitioning the land with effect
from February 7, 1949. By this expedient, an illegal order of E·
acquisition could not be validated."
15. The question involved in the present case is whether in view
of order passed by the court on 10.9 .1993 property could be said to be
under requisition under section 3 of the Act as on. the date notification
under section 4 had been issued. F
16. In regard to efficacy of order dated 10.9.1993, the respondents
have relied upon power to issue mandamus and the effect thereof. A
reference has been made to the decision in Comptroller and Auditor-
General of India, Gian Prakash, New Delhi & Anr. v. K.S.
Jagannatlum & Anr. (1986) 2 SCC 679 and Andi Mukta Sadguru G
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust & 01:5, v. V.R. Rudani & Ors. (1989) 2 SCC 691. In Comptroller
and Auditor-General of India (supra) the court observed :
"20. There is thus no doubt that the High Courts in India
exercising their jurisdiction under Article 226 have the power to H
246 SUPREME COURT REPORTS [2017] JO S.C.R.
A issue a writ of mandamus or a writ in the nature of mandamus or
to pass orders and give necessary directions where the
government or a public authority has failed to exercise or has
wrongly exercised the discretion conferred upon it by a statute
or a rule or a policy decision of the government or has exercised
such discretion mala fide or oil irrelevant considerations or by
B
ignoring the relevant considerations and materials or in such a
manner as to frustrate the object of conferring such discretion
or the policy for implementing which such discretion has been
conferred. In all such cases and in any other fit and proper case
a High Court can, in the exercise of its jurisdiction under Article
c 226, issue a writ of mandamus or a writ in the nature of
mandamus or pass orders and give directions to compel the
performance in a proper and lawful manner of the discretion
conferred upon the government or a public authority, and in a
proper case, in order to prevent injustice resulting to the
concerned parties, the court may itself pass an order or give
D
directions which the government or the public authority should
have passed or given had it properly and lawfully' exercised its
discretion."
In Andi Mukta Sadguru (supra), it was held:
E "20. The term "authority" used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32. Article 226 confers power
on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The words
F "any person or authority" used in Article 226 are, therefore, not
to be confined only to statutory authorities and instrumentalities
of the State. They may cover any other person or body performing
public duty. The form of the body concerned is not very much
relevant. What is relevant is the nature of the duty imposed on
G the body. The duty must be judged in the light of positive obligation
owed by the person or authority to the affected party. No matter
by what means the duty is imposed, if a positive obligation exists
mandamus cannot be denied."
There is no dispute with the proposition laid down in Comptroller
H and Auditor-General of India (supra) and Andi Mukta Sadguru
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 247
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
(supra) that mandamus can be issued for doing the positive act or a legal A
duty cast upon an authority.
17. In Mansukhlal Vithaldas Chauhan v. State of Gujarat
(1997) 7 sec 622 it has been observed that mandamus is a discretionary
remedy under Article 226 of the Constitution to compel for a public duty
which may be administrative, ministerial or statutory in nature. Statutory B
duty may be either directory or mandatory. 'Shall' and 'must' sometimes ·
be interpreted as 'may'. This Court has observed:
"22. Mandamus which is a discretionary remedy under Article
226 of the Constitution is requested to be issued, inter alia, to
compel performance of public duties which may be administrative, c
ministerial or statutory in nature. Statutory duty may be either
directory or mandatory. Statutory duties, if they are intended to
be mandatory in character, are indicated by the use of the words
"shall" or "must". But this is not conclusive as "shall" and "must"
have, sometimes, been interpreted as "may". What is
determinative of the nature of duty, whether it is obligatory, D
mandatory or directory, is the scheme of the statute in which the
"duty" has been set out. Even if the "duty" is not set out clearly
and specifically in the statute, it may be implied as correlative to
a "right".
23. In the performance of this duty, ifthe authority in whom the E
discretion is vested under the statute, does not act independently
and passes an order under the instructions and orders of another
authority, the Court would intervene in the matter, quash the order
and issue a mandamus to that authority to exercise its own
discretion. F
29. lt may be pointed out that this principle was also applied by
Professor Wade to quasi-judicial bodies and their decisions.
Relying upon the decision in R. v. Justices of London (1895) 1
QB 214. Professor Wade laid down the principle that where a
public authority was given power to determine a matter, G
mandamus would not lie to compel it to reach some particular
decision. "
18. The High Court directed interim payment to be made· in
accordance with law laid down by it in which it held A.P. Act 3_of 1971
to be invalid. However on appeal, in State of A.P. & Ors. v. Raja Shri H
248 SUPREME COURT REPORTS [2017] 10 S.C.R.
A V.S.K. Krishna Yachandra Bahadur Varuh Rajah of Venkatagiri &
Ors. (2002) 4 SCC 660 this Court upheld the constitutionality of the said
Act and further held that interim payments could be made only from the
date of determination by the Director µnder section 39( I). Though the
mandamus that was issued by the High Court relying upon Venkatagiri
case (supra) attained finality, for its enforcement, another writ petition
B
was filed. The Supreme Court laid down in Director of Settlements,
A.P. & Ors. v. M.R. Apparao & Anr. (2002) 4 SCC 638, that no further
mandamus could have been issued for release of payment in
implementation of its earlier order. Once the decision on which it was
based that is Venkatagiri case stood wiped off thus the mandamus
c became unenforceable. The Court further held that if the law which
was declared invalid by the High Court is held constitutionally valid,
effective and binding by the Supreme Court, then the mandamus
forbearing the authorities from enforcing its provisions would become
ineffective and the authorities cannot be compelled to perform a negative
D duty. The mandamus would not survive in favour of those parties against
whom appeals were not filed. This Court examined the question whether
while issuing a mandamus, the earlier judgment notwithstanding having
been held to be rendered ineffective, can still be held to be operative.
This Court in Director of Settlements v. M.R. Apparao (supra)
observed:
E "In other words, the judgment of the Andhra Pradesh High Court
in Venkatagiri case holding the Amendment Act to be
constitutionally invalid, on being reversed by the Supreme Court
on a conclusion that the said amendment is constitutionally valid,
the said dictum would be valid throughout the country and for all
F persons, including the respondents, even though the judgment in
their favour had not been assailed. It would in fact lead to an
anomalous situation, if in the case of the respondents, the earlier
conclusion that the Amendment Act is constitutionally invalid is
allowed to operate notwithstanding the reversal of that conclusion
in Venkatagiri case and only in Venkatagiri case or where the
G
parties have never approached the Court to hold that the same is
constitutionally valid. This being the position, notwithstanding the
enunciation of the principle ofresjudicata and its applicability to
the litigation between the parties at different stages, it is difficult
for us to sustain the argument of Mr Rao that an indefeasible
H right has accrued to the respondents on the basis of the judgment
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 249
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA; J.]
in their favour which had not been challenged and that right could A
be enforced by issuance of a fresh mandamus. On the ot~er
hand, to have uniformity of the law and to have universal
application of the law laid down by this Court in Venkatagiri
case it would be reasonable to hold that the so-called direction
in favour of the respondents became futile inasmuch as the B
direction was on the basis that the Amendment Act is
constitutionally invalid, the moment the Supreme Court holds the
Act to be constitutionally valid. We are, therefore, of the
considered opinion that no indefeasible right on the respondents
could be said to have accrued on account of the earlier judgment
in their favour notwithstanding the reversal of the judgment of C
the High Court in Venkatagiri case."
19. This Court has laid down that the High Court erred in issuing
mandamus in respect of a right which ceased to exist and was not
available on the date on which mandamus had been issued afresh. In
our opinion to enforce an order it should be effective on date mandamus D
is sought to be enforced. It can be interdicted by another order or .by
statutory intervention.
20. In First Land Acquisition Collector & Ors. v. Nirodhi
Prakash Gangoli & Anr. (2002) 4 SCC 160 the premises in question
had been requisitioned under the provisions of West Bengal Requisition E
and Control (Temporary Provision)Act, 1947 for accommodating students
of Calcutta National Medical College, Calcutta. The premises
subsequently sought to be acquired by issuing notification under sections
4 and 6 of the Land Acquisition Act in 1982 and 1989 respectively. The
High Court quashed the notifications. The premises stood derequisitioned
in 1993. A fresh notification was issued under sections 4(1) and 17(4) of F
the Act in November 1994. Entire notification was questioned by filing a
writ petition. In the said case Division Bench had issued a direction to
hand over physical possession 011 25.8.1994. This Court held that merely
because possession had not been delivered pursuant to the direction of
derequisition the acquisition would not become malafide. In case there G
existed need for acquisition it has to be judged independently. This Court
has laid down:
"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 H
250 SUPREME COURT REPORTS [2017] 10 S.C.R.
A directions of a learned Single Judge of the Calcutta High Cot1rt
dated 25-8-1994. When the 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 pµrpose
for which the acquisition is going to be made, is a real purpose or
a camouflage. By no stretch of imagination, exercise of power
B
for acquisition can be held to be mala fide, so long as the purpose
of acquisition continues and as has already been stated, there
existed emergency to acquire the premises in question. The
premises which were under occupation of the students ofNational
Medical College, Calcutta, were obviously badly needed for the
c 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 Sections
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 judgment that the acquisition is mala fide, must be
D
set aside and we accordingly set aside the same.
7. The argument advanced on behalf of the respondents is that
as the premises in question continued to be under posses~ion of
Calcutta Medical College, invocation of special powers under
Section 17 was vitiated and a valuable right of the landowners to
E file objections under Section 5-Acould not have been taken away.
According to the counsel for the respondents, Section 5-A of the
Act, merely gives an opportunity to the landowner to object to
the acquisition within 30 days from the date of publication of the
notification under Section 4, the power under Section 17 dispensing
F with inquiry under Section 5-A can, therefore, be invoked where
there exists urgency to take immediate possession of the land,
but where possession is with the acquiring authority, there cannot
exist any urgency, and, therefore the exercise of that power is
patently erroneous. In support of this contention, reliance was
placed on the decision of this Court in Ba/want Narayan Bhagde
G v. M.D. Bhagwat (1976) I SCC 700. We are unable to accept
this contention since the same proceeds on a basic misconception
about the possession of the premises. The premises in question
had been requisitioned under the provisions of the Requisition
Act and stood released from requisition by opPr:ition of Section
H 10-B of the said Act, since 1993. Even though the premises stood
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 251
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
occupied by the students of the medical college, but such A
occupation was neither as owner nor was lawful in the eye of
the law. To effectuate lawful possession and the purpose being
undoubtedly a public purpose, the State Government had been
attempting ever since December 1982 and each of its attempts
had failoo on account of the Court's intervention. It is in this
B
context, the legality of exercise of power under Section 17 of
the notification dated 29-11-1994 is required to be adjudicated
upon. In our considered opinion, having regard to the facts and
circumstances narrated above, the exercise of power under
Section 17 by the State Government, cannot be held to be illegal
or mala fide and consequently, the impugned judgment of the C
Division Bench of the Calcutta High Court cannot be sustained.
The learned Judges of the High Court have been totally swayed
away by the fact of non-implementation of the directions of
i3atabyal, J., in his order dated 25-8-1994, but that by itself would
not be a ground for annulling lawful exercise of power under the D
provisions of the Land Acquisition Act. We, therefore, set aside
the impugned judgment of the Division Bench of the Calcutta
High Court and hold that the acquisition in question is not vitiated
on any ground. The acquisition proceeding, therefore, is held to
be in accordance with law. The appeal is allowed. There wiffbe
no order as to costs." E
21. It was also submitted on behalf of the respondents that the
acquisition proceedings contrary to court's order were a nullity. In
substance, the submission is that once the derequisition has been ordered
to be made in specified time, having failed to do so, continuance of
requisition was unlawful. Thus the acquisition of such property could not F
have been made in view of the principles laid down by this Court in Ravi
S. Naik v. Union of India & Ors. (1994) Supp 2.SCC 641 and Manohar
Lal v. Ugrasen (2010) 11 SCC 557. The relevant portion of Ravi S.
Naik (supra) is extracted hereunder :
"40. We will first examine whether Bandekar and Chopdekar G
could be excluded from the group on the basis of order dated
December 13, 1990, holding that they stood disqualified as
members of the Goa Legislative Assembly. The said two members
had filed Writ Petition No. 321 of 1990 in the Bombay High
Court wherein they challenged the validity of the said order of
H
252 SUPREME COURT REPORTS [2017] IOS.C.R.
A disqualification and by order dated December 14, 1990, passed
in the said writ petition the High Court had stayed the operation
of the said order of disqualification dated December 13, 1990,
passed by the Speaker. The effect of the stay of the operation of
the order of disqualification dated December 13, 1990 was that
with effect from December 14, I 990, the declaration that
B
Bandekar and Chopdekar were disqualified from being me.mbers
of Goa Legislative Assembly under order dated December 13,
1991, was not operative and on December 24, 1990, the date of
the alleged split, it could not be said that they were not members
of Goa Legislative Assembly. One of the reasons given by the
c Speaker for not giving effect to the stay order passed by the
High Court on December 14, I 990, was that the said order came
after the order of disqualification was issued by him. We are
unable to appreciate this reason. Since the said order was passed
in a writ petition challenging the validity of the order dated
December 13, 1990, passed by the Speaker it, obviously, had to
D
come after the orderof disqualification was issued by the Speaker.
The other reason given by the Speaker was that Parliament had
held that the Speaker's order cannot be a subject matter of court
proceedings and his decision is final as far as Tenth Schedule of
the Constitution is concerned. The said reason is also
E unsustainable in law. As to whether the order of the Speaker
could be a subject matter of co.urt proceedings and whether his
decision was final were questions involving the interpretation of
the provisions contained in Tenth Schedule to the Constitution.
On the date of the passing of the stay order dated December 14,
1990, the said questions were pending consideration before this
F
Court. In the absence of an authoritative pronouncement by this
Court, the stay order passed by the High Court could not be
ignored by the Speaker on the view that his order could not be a
subject matter of court proceedings and his decision was final. It
is settled law that an order, even though interim in nature, is
G binding till it is set aside by a competent court and it cannot be
ignored on the ground that the court which passed the order had
no jurisdiction to pass the same. Moreover, the stay order was
passed by the High Court which is a superior Court of Record
and ''in the case of a superior Court of Record, !t is for the court
to consider whether any matter falls within its jurisdiction or not.
H
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 253
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
Unlike a court oflimitedjurisdiction, the Superior Court is entitied A
to determine for itself questions about its own jurisdiction."
This Court has observed that interim order is also binding till it is
set aside. In Manohar Lal (supra) this Court observed:
24. In Mu/raj v. Murti Raghunathji Maharaj AIR 1967 SC
1386, this Court considered the effect of action taken subsequent B
to passing of an interim order in its disobedience and held that
any action taken in disobedience of the order passed by the Court
would be illegal. Subsequent action would be a nullity.
25. In Surjit Singh v. Harbans Singh AIR 1966 SC 135, this
Court while dealing with the similar issue held as under (SCC p. C
52, para 4)
"4 . ... In defiance of the restraint order, the alienation/
assignment was made. If we were to let it go as such, it would
defeat the ends of justice and the prevalent public policy. When
the court intends a particular state of affairs to exist while it is D
in seisin of a lis, that state of affairs is not only required to be
maintained, but it is presumed to exist till the court orders
otherwise. The court, in these circumstances has the duty, as
also the right, to treat the alienation/assignment as having not
taken place at all for its purposes." E
26. In All Bengal Excise Licensees' Assn. v. Raghabendra
Singh AIR 2007 SC 1386 this Court held as under: (SCC p. 387,
para 28)
"28 . ... a party to the litigation cannot be allowed to take an
unfair advantage by committing breach of an interim order F
and escape the consequences thereof.... the wrong perpetrated
by the respondent contemnors in utter disregard of the order
of the High Court should not be permitted to hold good."
27. In DDA v. Skipper Construction Co. (P) Ltd. AIR 1~66
SC 2005 this Court after making reference to many of the earlier G
judgments held: (SCC p. 636, para 18)
"18. ... ' ... on principle that those who defy a prohibition ought
not to be able to claim that the fruits of their defiance are good,
and not tainted by the illegality that produced them.'"
H
254 SUPREME COURT REPORTS [20171 10 S.C.R.
A 28. In Gurunath Manohar Pavaskar v. Nagesh Siddappa
Nava/gund AIR 2008 SC 901 this Court while dealing with the
similar issues held that even a court in exercise of its inherent
jurisdiction under Section 151 of the Code of Civil Procedure,
1908, in the event of coming to the conclusion that a breach of
an order of restraint had taken place, may bring back the parties
B
to the same position as if the order of injunction has not been
violated.
29. In view of the above, it is evident that any order passed by
any authority in spite of the knowledge of the interim order of
the court is of no cons~quence as it remains a nullity.
c
22. In the light of aforesaid principles, in the instant case, we have
to consider the nature of mandamus that has been issued on 10.9.1993.
Firstly the court had not quashed the order of re4uisition. Apart from
that, the court has not ordered that on lapse of 6 months period granted
for acquisition and further period of 6 months property shall stand
D derequisitioned. The direction was issued to the L.A.C. to release the
property in question from requisition. It was not an automatic consequence
of the command issued. Thus if the property had not been released
under section 6 of the Act obviously the requisition continued and statutory
power of acquisition could have been exercised.
E 23. In General Manager, Department of Telecommunications,
17iiruvuna1::hr1puram v. Jacob s/o Kochuvarkey Kalliath (dead) by
LRs. & Ors. (2003) 9 SCC 662 this Court considered the question of
issuance of direction by the High Court to complete acquisition proceedings
and pass an award within a specified period with a view to avoiding
F further delay. This Court held that it would not disable the authorities to
exercise power under section 11-A where under a longer period was
available for passing an award. This Court also held that direction or
order couldn't be read to stultify any authority from exercising its powers
under the statute or deprives a statutory provision of its enforceability.
This Court also considered the question of limitations of mandamus and
G also issue of liability under the Contempt of Courts Act, and held that
there was no violation of either in exercise of statutory powers despite
court order. This court observed:
"7. As for the plea raised on behalf of the respondents that
since the Court directed the passing of the award by 3-9-1992
H which time was subsequently extended up to 3-12-1992,
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 255
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
irrespective of the provisions contained in the Act or for that A
matter even if what was said by the Court was right or wrong,
the order passed by the Court was very much binding inter partes
and the appellant could not have legitimately passed an award at
any time beyond 3-12-1992. Strong reliance has been placed
upon the decision reported in N. Narasimhaiah (1996) 3 SCC B
88. This was a case wherein the exercise of powerunder Section
17(4) dispensing with enquiry under Section 5-A was quashed
by the High Court and liberty was given to the State to proceed
further in accordance with law i.e. to conduct the enquiry under
Section 5-A and if the Government forms an opinion that the
land is required for a public purpose, issue a fresh declaration c
under Section 6. The question, which loomed large for
consideration, was as to whether the limitation prescribed under
clause (ii) of the first proviso to sub-section ( l) would still remain
operative and be capable of being complied with. This Court
observed that running of the limitation should be counted from D
the date of the order of the court received by the LandAcquisition
Officer and declaration is to be published within one year from
that date. This was for the reason that the Court having quashed
the earlier declaration under Section 6 when directed an enquiry
under Section 5-A to be conducted and to proceed afresh from
that stage, the limitation prescribed for issuing Section 6 E
declaration would apply to the publication of declaration under
Section 6( I) afresh and to be complied with from the date of
receipt ofa copy of the orderofthe Court. This decision is of no
assistance whatsoever to the respondents in the present case.
Notwithstanding the statutory period fixed, further time came to
F
be granted due to intervention of court proceedings in which a
direction came to be issued to proceed in the matter afresh, as
directed by the Court, apparently applying the well-settled legal
maxim - actus curiae neminemgravabit: an act of the court
shall prejudice no man. In substance what was done therein was
to necessitate afresh calculation of the statutory period from the G
date ofreceipt of the copy of the order of the cou1t. Granting of
further time than the one stipulated in law in a given case as a
sequel to the decision to cany out the dictates of the court afresh
is not the same as curtailing the statutory period of time to stultify
an action otherwise permissible or allowed in law. Consequent! y,
H
256 SUPREME COURT REPORTS (2017] IO S.C.R.
A no inspiration can be drawn by the respondents in this case on
the analogy of the said decision.
8. Reliance placed on the decision reported in ·M.M.
Krishnamurthy Chetty ( 1998) 9 SCC 138 is equally inappropriate
and ill-conceived. That was a case wherein a learned Judge of
B the High Court, while setting aside the order passed by the
statutory authorities under the Tamil Nadu Land Reforms
(Fixation of Ceiiing of Land) Act, 1961, remanded the case for
fresh consideration specifically in the light of an earlier judgment
of the High Court in the case of Naganatha Ayyar v. Authorised
Officer 84 MLW 69. While the remand proceedings were pending
c before the authorised officer, this Court reversed the aforesaid
judgment in Authorised Officer v. S. Naganatha Ayyar (1979)
3 sec 466 and the authorised officer decide(l the ceiling limit in
the remit proceedings in terms of the decision of this Court and
not as per the directions of the High Court to determine the
D same in the light of the earlier High Court judgment. It was held
in that case that the order of the High Court directing the
authorised officer to examine the dispute in the light of the !!arlier
High Court decision reported in Naganatha (supra) having
become final in the absence of any challenge thereto despite the
reversal of the earlier High Court judgment by this Court, this
E Court observed that even orders which may not be strictly legal
becoml; fir.a! and are binding on the parties if they are not
challenged before the superior courts. This Court, while rendering
the said decision, was concerned with a direction of the High
Court to do a particular thing in a particular manner and unless
F the binding judgment between parties was set at naught to enable
the authority to do it in any other way, it had to be done in a
particular manner so directed by the Court or not at all. So far as
the case on hand is concerned, since the Court in the earlier
proceedings had intervened at the instance of the respondents
the Court was ditecting the authorities concerned to complete
G the process within a particular time to avoid further delay and
ensure expeditious conclusion of the proceedings. There is nothing
to indicate in the order of the High Court stipulating or extending
the time for passing the award, that beyond the time so permitted,
it cannot be done at all and the authorities are disabled once and
H for all even to proceed in the matter in accordance with law, if it
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 257
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
is so permissible for the authorities under the law governing the A
matter in issue. The Court cannot be imputed with such an
intention to stifle the authorities from exercising powers vested
with them under statute or to have rendered an otherwise
enforceable statutory provision, a mere dead letter. Neither fr9m
the nature and purport of the earlier orders passed nor from B
their contents, is there any scope for inferring the imposition of a
total embargo upon the competent authorities, to exercise the
statutory powers indisputably vested with and available to sur.h
authorities under the statute, at the time of such exercise.
24. In the instant case as the High Court has not quashed the C
notification under section 3 and till derequisition was actually made, once
statutory power had been exercised under section 4 which could be
exercised when requisition continues and that as a matter of fact,
continued as the court had not culled out the consequence, there was no
automatic consequence of the de- requisition on lapse of specified time.
Proceedings under section 6 were required to be undertaken. No order D
of release was passed. Requisition continued until the date of acquisition
notification and there was no time limit for initiating acquisition under the
Act. The statutory provision would not be stultified by the command so
issued by the High Court in view of the decision of this Court in Jae.ob
(supra). Though, Single Judge has opined that considering the order, it
would be a case of violation of the order to be dealt with under the E
Contempt of Courts Act. However, in our opinion, when statutory provision
had been invoked for acquisition, there is no question of applicability of
contempt of court also as laid down in Jacob (supra).
25. Reliance has been placed on Patasi Devi v. State of Haryana
(2012) 9 SCC 503 that it was a colourable exercise of power. In the said F
case this Court found that the acquisition was made in order to oblige
the colonizer that was not for a public purpose. The facts are different in
the instant case. The property had been acquired for the purpose of
systematic development of Calcutta and the same has been handed over
to Kolkata Metropolitan Development Corporation for the said purpose. G
Thus it could not be said that there was colourable exercise of power in
the instant case.
26. It was also submitted on behalf of respondents that even if
the order is void, it is required to be so declared by the competent forum.
It is not permissible to ignore it. For the purpose, reliance has been placed H
258 SUPREME COURT REPORTS [2017] 10 S.C.R.
A on Krishnadevi Malchand Kamathia & Ors. v. Bombay
Environmental Action Group & Ors. (2011) 3 SCC 363:
"16. It is a settled legal proposition that even if an order is void.
it requires to be so declared by a competent forum and it is not
permissible for any person to ignore the same merely because in
B his opinion the order is void. In State of Kenda v.· M.K.
Kunhikannan Nambiar Manjeri Manikoth Naduvi AIR 1996
SC 906, Tayabbhai M. Bagasarwalla v. Hind Rubber
Industries (P) Ltd. AIR 1997 SC 1240, M. Meenakshi v.
Metadin Agarwal (2006) 7 SCC 470 and Sneh Gupta v. Devi
Sarup (2009) 6 SCC 194, this Court held that whether an order
c is valid or void, cannot be detennined by the parties. For setting
aside such an order, even if void, the party has to approach the
appropriate forum.
17. In Stale of Punjab v. Gurdev Singh AIR 1991 SC 2219.
this Court held that a party aggrieved by the invalidity of an
D order has to approach the court for relief of declaration that the
order against him is inoperative and therefore, not binding upon
him. While deciding the said case, this Court placed reliance
upon the judgment in Smith v. East Elloe RDC 1956 AC 736,
wherein Lord Radcliffe observed: (AC pp. 769-70)
E " ... An order, even if not rnade in good faith, is still im act
capable of legal consequences. It bears no brand of invalidity
[on] its forehead. Unless the necessary proceedings are taken
at law to establish the cause of invalidity and to get it quashed
or otherwise upset, it will remain as effective for its ostensible
F purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba AIR 2004 SC 1377,
this Court took a similar view observing that once an order is
declared non-est by the court only then the judgment of nullity
would operate ergaomnes i.e. for and against everyone
G concerned. Such a declaration is permissible if the court comes
to the conclusion that the author of the order Jacks inherent
jurisdiction/competence and therefore, it comes to the conclusion
that the order suffers from patent and latent invalidity.
19. Thus, from the ahove, it emerges that even if the order/
notification is void/voidable, the party aggrieved by the same
H
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. 2:W
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
cannot decide that the said order/notification is not binding upon A
. it. It has to approach the court for seeking such declaration. The
order may be hypothetically a nullity and even if its invalidity is ·
challenged before the court in a given circumstance, the court
may refuse to quash the same on various grounds including the
standing of the petitioner or on the ground of delay or on the B
doctrine of waiver or any other legal reason. The order may.be
void for one purpose or for one person, it may not be so for
another purpose or another person."
In the instant case ratio of the aforesaid dictum is not applicable
and it is not the case that the order was void but statutory power has
been exercised and considering the nature of command that has been c
issued in the previous order dated 10.9.1993, the decision in Krisluwdevi
(supra) is not attracted to the case.
27. It was also submitted on behalf of the respondents that an
erroneous decision operates as res judicata. For this purpose, reliance
1'
has been placed on Mohan/al Goenka Benoy Krishna Mukherjee D
& Ors. AIR 1953 SC 65. This Court observed:
(23) "There is ample authority for the proposition that even an
erroneous decision on a question of law operates as res judicata
between the parties to it. The correctness or otherwise of a
judicial decision has no bearing upon the q.uestion whether or ~ot E
it operates as res judicata. A decision in the previous execution
case between the parties that the matter was not within the
competence of the executing Court even though erroneous is
binding on the parties; see Abhoy Kanta Gofwin v. Gopinath
Deb Goswami and Others AIR (30) 1943 Cal 460." F
There is no question of applicability of res judicata in the instant
case. As statutory power has been exercised the statutory action is not
stifled by the order of the court. It was stated that the land was proposed
to be sold but the appellants had made it clear that they are not going to G
sell the property. This Court had held in Municipal Corporation of
Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd.
& Ors. (1996) 11 SCC 501 where the land has been acquired for public
purpose may be used for another public purpose; diversion to private
purpose is only interdicted.
H
260 SUPREME COURT REPORTS [2017] IO S.C.R.
A 28. In view of the aforesaid discussion, we find that the Division
Bench of the High Court has erred in Jaw in quashing the acquisition.
We set aside the order passed by the Division Bench of the High Court
and restore that of the Single Bench. The appeal is allowed. Parties to
bear their costs.
B
NidhiJain Appeal allowed.
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