P.K. CHATTOPADHYAY, J
(1) PETITIONERS filed the instant writ petition challenging the acquisition proceedings whereby the respondents had sought to acquire an area approximately 1000 sq. ft. in the North Western portion of the ground floor of premises No. 27 R. N. Mukherjee Road. The respondent authorities have invoked emergency powers under section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'said Act') for the purpose of acquisition of the aforesaid 1000 sq. ft. area in the aforesaid premises. The said premises No. 27 R. N. Mukherjee Road, Calcutta belongs to the petitioner No. 1 i. e. Hindustan Consultancy and Services Ltd.
(2) BY the order dated 9th November 1949, a portion measuring about 1000 sq. ft. area of the said premises No. 27 R. N Mukherjee Road was requisitioned under the provisions of the West Bengal Premises Requisition and Control Act, 1947. After requisition of the aforesaid portion at the said premises, the department of Post and Telegraph was put into possession and a Post Office was set up at the said premises.
(3) SECTION 10b of the West Bengal Premises Requisition and Control Act, 1947 (hereinafter referred to as the "control Act, 1947) came into force on 31st March 1987 and by virtue of the aforesaid provision of section 10b the requisitioned portion of the aforesaid premises stood automatically released after expiry of the period of 5 years from the date of coming into force of the West Bengal Premises Requisition and Control (Temporary Provisions) (Second Amendment) Act, 1986.
(4) AFTER coming into force of the aforesaid provision of section 10b of the West Bengal Premises Requisition and Control Act, 1947, the Collector on repeated occasions directed the Chief Post Master General to hand-over immediately vacant possession of the said premises to the petitioner. The said Collector fixed several dates for the purpose of handing over the vacant possession of the said premises to the petitioner but ultimately could not hand-over such vacant possession to the petitioner as the postal authorities refused to vacate the premises.
(5) THE petitioners also filed another writ petition earlier before this Court claiming vacant possession of the aforesaid requisitioned premises. The said writ petition being W. P. No. 1086 of 1996 was finally decided by the order dated 18th August 1999 passed by Prabir Kumar Samanta, J.
(6) THE relevant portion of the said order is quoted hereinbelow:
I, therefore, dispose of the writ petition by directing the First Land Acquisition Collector, Calcutta to hand over possession of the aforesaid premises to the writ petitioner after evicting the occupiers therefrom as expeditiously as possible preferably within a period of six months from the date of communication of this order provided there is no further order of requisition nor any contemplation for acquisition of the said premises under the relevant provisions of law. The rent compensation in respect of the premises in question for the periods under requisition shall be determined by the concerned authority expeditiously if not determined in the meantime and upon such determination, payments be made to the writ petitioner immediately thereafter.
(7) IT was submitted on behalf of the petitioners that the last day to hand-over possession of the aforesaid requisitioned portion of the premisses in question or to complete the acquisition proceedings pursuant to the aforesaid order passed by Prabir Kumar Samanta, J. on 18th August 1999 expired on 18th February 2000.
(8) ON 29th March 2000 a notification under section 4 read with section 17 (4) of the Land Acquisition act, 1894 was issued in respect of the aforesaid requisitioned premises of the petitioner. Thereafter, a declaration under section 6 of the said Act was published on 19th July 2000 and the order by the State Government under section 7 of the said Act was issued on 8th March 2001.
(9) THE petitioner challenged the action of the respondent authorities mainly on the following grounds:
A. There was no material justifying the invocation of section 17 (4).
B. When the Government was already in possession, section 17 (1) could not be made applicable as section 17 (1) speaks of urgency to take possession. If section 17 (1) was not applicable, section 17 (4) would not apply.
C. The application of section 17 (4) is permissible when section 17 (1) is applicable. Now where section 17 (1) applies, section 17 (3a) of the Act provides for payment of 80% of the estimated compensation. The said provision was not followed in this case. Therefore, the application of section 17 (4) was bad in law.
D. In the section 4 notification, no urgency had been spelt out. It is necessary to spell out the urgency in such a notification. As it was not done, the notification is bad in law.
(10) MR. T. C. Dutt, learned counsel of the State respondents raised objections on the following preliminary points as regards maintainability of the writ petition: there is no prayer in the writ petition for quashing the section 17 (4) notification or the urgency clause or the section 6 declaration or the acquisition proceedings. The petitioner has only claimed possession. If the petitioner does not seek quashing of the notification or the urgency declaration in the notification or the acquisition proceedings, the petitioner is not entitled to claim possession, because possession is the consequential relief after quashing of the acquisition proceedings. If acquisition is not quashed, the respondents are entitled to remain in possession.
(11) MR. Dutt submitted that in this case the relief claimed for quashing of the acquisition proceeding should be considered as the main relief and the claim for possession must be regarded as the consequential relief. According to Mr. Dutt, the aforesaid main relief has not been claimed by the petitioners and as such the consequential relief cannot be granted in favour of the petitioners.
(12) MR. Dutt further submitted that the principle of moulding the relief would not apply in the present case. According to Mr. Dutt, the petitioners have themselves chosen not to ask for the relief to which they might be entitled to.
(13) THE other preliminary point of objection is on the ground of delay. According to learned advocate of the State respondents the writ petition is to be dismissed as a belated one. It has been submitted on behalf of the State respondents that the section 4 notification was issued on 29th March 2000 and in the said notification it was clearly mentioned that the provision of section 17 (4) of the said Act was being invoked.
(14) ACCORDING to Mr. Dutt, though the notification under section 4 read with section 17 (4) of the Act of 1894 was issued on 29th March 2000 but the petitioners waited for more than one year and allowed the respondents to issue declaration under section 6 of the said Act and thereafter filed the present writ petition challenging the action of the respondent authorities. Mr. Dutt also submitted that the petitioners did not furnish any reason explaining the delay for not approaching this Court immediately after issuance of the notification under section 4 read with section 17 (4) of the Land Acquisition act, 1894.
(15) MR. Debal Banerjee, learned senior counsel of the petitioners, however, submitted that under Article 226 of the Constitution of India the Court enjoys a wide discretion in the matter of granting adequate and proper relief to an aggrieved party.
(16) REFERRING to the decision of the Supreme Court reported in AIR 1951 SC 41 (Charanjit Lal Chowdhury v. The Union of India and Ors.), learned counsel of the petitioners submitted that the Court should not reject any writ petition simply on the ground that the proper writ and direction has not been prayed for. The learned counsel further submitted that in making the final order, the Court may not mention any specific writ but can only quash impugned notification or pass any other appropriate order. The learned advocate of the petitioners also submitted that a specific prayer has been made for quashing of the notifications dated 29th March 2000 and 19th July 2000 issued under section 4 and section 6 of the said Act respectively.
(17) IT has been submitted on behalf of the petitioners that there was no delay and/or laches on the part of the petitioners in presenting the writ petition. According to the learned advocate of the petitioners, acquisition proceedings have not yet been completed in the present case and therefore it cannot be said that the writ petition cannot be entertained on the ground of delay.
(18) THE learned advocate of the petitioners distinguished the decisions of the Supreme Court reported in (1981)3 SCC 628 (Babu Singh and Ors. v. Union of India and Ors.) and (1998)4 SCC 387 (Larsen and Toubro Ltd. v. State of Gujarat and Ors.) which were cited by the learned advocate of the respondents in support of his arguments on the point of non-maintainability of the writ petition on the ground of delay. According to the learned advocate of the petitioners, the Supreme Court in the aforesaid decisions dismissed the appeals on the ground that the acquisition proceedings had already been completed and the final award under section 12 of the said Act was published at least before filing of the writ petition and admittedly the writ petition in the aforesaid cases were filed after a lapse of a couple of years.
(19) THE other decision of the Supreme Court reported in AIR 1980 SC 112 (Ashok Kumar v. Collector, Raipur) was also distinguished by the learned advocate of the petitioners on the ground that the facts mentioned in the said writ petition are not only different but admittedly there was no satisfactory explanation for the inordinate delay on behalf of the petitioners in the aforesaid matter. But in the present case according to the learned advocate of the petitioners there was no delay at all particularly when final award has not yet been published in respect of the property under acquisition. I agree with the aforesaid contention of the learned counsel of the petitioners as I am of the opinion that there is no delay and/or laches on the part of the petitioners in presenting this writ petition for the purpose of moving this Court for redressal of the grievances.
(20) ON the other preliminary point also, I do not find any merit as this Court cannot ignore the valid claims of the petitioners on the ground that proper writ and direction has not been prayed for. However, in this writ petition, the petitioners have specifically prayed for quashing of the impugned notifications dated 29th March 2000 and 19th July 2000 whereby and whereunder the State respondents sought to acquire the premises in question of the petitioners. The petitioners have admittedly challenged the validity and/or legality of the acquisition proceedings in the present writ petition as the petitioners specifically prayed for quashing of the aforesaid impugned notifications dated 29th March 2000 and 19th July 2000 issued by the Land Acquisition Collector in connection to the acquisition proceedings in respect of the premises of the petitioner. for the reasons stated above, I do not find any merit in the preliminary points raised by the learned counsel of the State respondents.
(21) THE petitioners have also challenged the invocation of the urgency clause by the respondent authorities in the present case. According to the learned advocate of the petitioners there was no material justifying invocation of the urgency clause. The learned advocate of the State respondents, however, sought to justify the invocation of the provisions of section 17 (4) of the said Act on the ground that by an order dated 18th August 1999 Prabir Samanta, J. had directed the respondents to make over possession of the premises in question provided there was no further contemplation of acquisition.
(22) THE learned counsel of the respondents sought to argue that the contemplation of acquisition should be interpreted as not only initiation but also speedy acquisition. Mr. Dutt, the learned counsel of the State respondents further submitted that the urgency arose during the pendency of the acquisition proceedings, as it was not possible on the part of the State respondents to complete the acquisition proceedings in time. In the present case, admittedly no material was produced by the respondents to justify the ground of urgency.
(23) BY the order dated 18th August 1999, Prbir Kumar Samanta, J. never directed the respondent authorities to complete the acquisition proceedings within a period of 6 months. Therefore, the alleged ground of urgency as argued by the learned counsel of the respondent State is not at all convincing.
(24) THE learned advocate of the respondents though cited the decision reported in (1995)5 SCC 587 (State of Uttar Pradesh and Anr. v. Keshav Prasad Singh) in support of the contention that the Supreme Court has upheld the invocation of section 17 (4) of the said Act in an almost identical situation but the learned advocate of the petitioners distinguished the same on the ground that the said decision was passed by the Hon'ble Supreme Court after considering the peculiar facts of the said case. The learned advocate of the petitioners further submitted that the ratio of any decision must be understood in the light of the facts of that case.
(25) IN the present case, it cannot be said that the aforesaid decision of the Apex Court reported in (1995)5 SCC 587 has any manner of application and furthermore in my opinion, the said case also does not decide the questions of law, which have been agitated in this case.
(26) REFERRING to the other decisions as were cited by the learned counsel of the State respondents, Mr. Debal Banerjee, learned senior counsel of the petitioners submitted that those cases had not laid down general propositions of law in respect of section 17 of the said Act. The learned advocate of the petitioners also submitted that the interpretation sought to be given by the respondents to section 17 (1) and section 17 (4) of the said Act is totally incorrect and unfounded.
(27) IN order to appreciate the rival contentions of the respective parties the provisions of section 17 of the said Act is set out hereunder: "section. 17. Special Powers in cases of urgency.- (1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), [take possession of any land needed for a public purpose]. Such land shall thereupon [vest absolutely in the [government], free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1 and with the previous sanction of the [appropriate Government], enter upon and take possession of such land, which shall thereupon [vest absolutely in the [government]] free from all encumbrances: provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
[ (3-A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),- (a)tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b)pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under sub-section (3-A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue. ] [ (4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (1) or sub-section (2) are applicable, the [appropriate Government] may direct that the provisions of section 5-A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time [after the date of publication of the notification] under section 4, sub-section (1). ]
(28) FROM a proper and meaningful construction of section 17 (4) it would be evident that the section 17 (4) is only applicable where the conditions of section 17 (1) have been applicable. In fact, section 17 (4) makes it clear that 'in cases of any land to which in the opinion of the Government the provisions of section 17 (1) or sub-section (2) are applicable'. The notification under section 17 (4) expressly states that in the opinion of the Governor the provision of sub-section (1) of section 17 of the said Act is applicable. Thus, the Governor has to arrive at a decision that provisions of sub-section (1) or sub-section (2) of section 17 are applicable before invoking 17 (4) of the said Act.
(29) THE respondents have sought to argue that whenever section 17 (4) is invoked, section 17 (1) need not necessarily be invoked.
(30) ADMITTEDLY, the aforesaid argument has been advanced by the learned counsel of the respondents on a hypothetical basis as in the present case both sections 17 (1) and section 17 (4) have been invoked as would appear from the notification issued by the respondent authorities on 29th March 2000. The learned counsel of the petitioners further submitted that the decision relied upon by the learned counsel of the State respondents and reported in AIR 1972 SC 1363 (Getmull Bhojraj v. State of Bihar) is not attracted to the facts of the present case. Admittedly, in the aforesaid case, no material was produced before the Court in order to show that the Government had applied its mind under section 17 (1) of the said Act but in the present case admittedly in the notification under section 17 (4), it has been mentioned that the Governor has applied its mind under section 17 (1) of the Act.
(31) THE relevant extract from the impugned notice dated 29th March 2000 is quoted hereunder:
In exercise of the powers conferred by sub-section (4) of section 17 of the Land Acquisition Act, 1894 (Act-I of 1894), the Governor is pleased to direct hat the provisions of section 5a of the Act shall not apply to the lands as described in the schedule below to which in the opinion of the Governor, the provisions of sub-section (1) of section 17 of the said Act are applicable.
(32) IN the said premises, I am of the view that the learned counsel of the petitioners has rightly contended that arguments advanced on behalf of the State respondents regarding independent application of section 17 (4) even without invoking section 17 (1) of the said Act in a particular case is purely academic in the facts of the present case and as such I am not inclined to decide this point in the present writ petition.
(33) MR. Dutt, however, specifically argued that there can be urgency of various dimensions and the same cannot be confined only for the purpose of taking possession. From the Act it appears that the emergency provision has been incorporated in the Act only for the purpose of taking possession. Section 16 of the said Act starts under the heading "taking possession". The aforesaid heading has abundantly made it clear that only for the purpose of taking possession the provisions of section 16 and section 17 have been engrafted in the Land Acquisition Act, 1894.
(34) MR. Dutt has relied upon the judgment of the Supreme Court in Civil Appeal No. 1913 of 2002 (First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr.) and contended that even if the authorities were in physical possession and wanted to acquire the land, the same would amount to taking up acquisition within the meaning of the Act since the existing acquisition was neither as owner nor was lawful in the eye of law. Mr. Dutt further contended that in order to effectuate lawful possession the authorities have taken steps.
(35) IN the view I have taken it is not necessary for me to deal with the aforesaid contention of Mr. Dutt.
(36) IN the present case, premises of the petitioner was requisitioned by the respondent collector at the instance of the department of Post and Telegraph and the possession of the said premises should have been handed over to the petitioners at leas on 1st March 1992 in view of the provision of section 10b of the said Control Act, 1947 which came into operation by virtue of the notification dated 31st March 1997. In terms of the aforesaid provision of section 10b, the respondent authorities were not only under an obligation to hand-over the vacant possession of the premises in question to the petitioner but as a matter of fact the respondent Collector admittedly fixed up different dates for the purpose of handing over of the vacant possession of the premises in question.
(37) MR. Ashutosh Law, learned senior counsel of the Postal Authorities, Government of India adopted the arguments of Mr. T. C. Dutt, learned counsel of the State of West Bengal and its authorities. From the affidavit-in-opposition filed on behalf of the respondents Postal Authorities, it appears that the proposal for acquisition of the premises in question was submitted before the authorities of the State of West Bengal by the Postal Authorities as far back as in the year 1993 and thereafter several reminders were also given by the Postal Authorities in this regard. The Post Master General, Calcutta Region also requested the Secretary, Land and Land Reforms Department, Government of West Bengal lastly on 22nd June 1999 for finalisation of the acquisition proceeding. Accordingly, it cannot be said that all of a sudden any emergent situation arose which empowers the Acquisition Authorities, namely, the First Land Acquisition Collector, Calcutta to invoke emergency provisions for acquisition of the premises.
(38) THE case of the State respondent is that because of urgency, steps were taken under section 17 (4) of the said Act. But no material has been produced by the respondents to justify the ground of urgency. However, assuming that there was grave urgency which necessitated the State Government to take steps under section 17 of the said Act, it was incumbent upon the Collector to tender payment of 80 percent of the compensation as estimated by him and also pay the amount unless prevented by causes mentioned in section 17 (3) (A) of the said Act.
(39) AS has been discussed above, section 17 (4) is only applicable where section 17 (1) applies.
(40) SECTION 17 (3-A) clearly provides that the 80 percent of the compensation shall be tendered and unless prevented mentioned in section 17 (3-A) (b), the amount also be paid by the Collector. This payment has to be made before taking possession.
(41) IT is well settled that if a thing has to be done in a particular manner, it must be done in that manner or not at all.
(42) IN this connection we may refer to the case reported in AIR 1969 SC 395 (Naibad Prosad v. Chhaganlal and Ors.) paragraph 5. The Supreme Court observed as follows: "it is well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded. "
(43) SUPREME Court has made observations to the similar effect in the case reported in AIR 1988 SC 1976. (Birad Mal Singhvi v. Anand Purohit).
(44) IN this case, admittedly, no amount was tendered on account of compensation far less any payment was made.
(45) THE statute had given power to the authorities to take expeditious steps provided the legal requirements are complied with. One of such mandatory requirement is tendering and payment of 80 percent compensation before taking possession.
(46) UNLESS, the aforesaid mandatory requirement is complied with first, the entire proceedings could be vitiated since that would amount to permitting the authorities to act otherwise than in accordance with the manner prescribed in the statute. The State respondents were bound to act in the manner laid down in the statute or that they should not have acted at all. Other modes of compliance are not permissible by law.
(47) THEREFORE, I hold that the acquisition proceedings are contrary to the provisions of Land Acquisition Act, 1894 and I set aside the same.
(48) IN the present case, the respondent authorities failed to acquire the portion of the said premises in question which was earlier requisitioned by the State o
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f West Bengal under the provisions of the Land Acquisition Act, 1894 and therefore, the postal department cannot remain in possession at the said premises in question particularly when the requisitioned premises stood automatically released from the requisition after the expiry of 5 years period from the date of coming into force of the West Bengal Premises Requisition and Control (Temporary Provisions) (Second Amendment) Act, 1896. In other words, the requisitioned portion of the property of the petitioners stood released from requisition after a period of 5 years from 31st March 1987 as the provisions of the section 10b of the said Control Act, 1947 came into force with effect from 31st March 1987. (49) FOR the aforementioned reasons, the respondent postal authorities shall release and deliver up vacant possession of the requisitioned portion of the Premises No. 27 R. N. Mukherjee Road, Calcutta to the petitioners forthwith as the said requisitioned property of the petitioners already stood released from requisition in terms of section 10b of the said Control Act, 1947 and the respondent postal authorities cannot remain in possession at the premises in question in absence of any legal authority. (50) ADMITTEDLY, the Post Office is housed in the requisitioned portion of the said premises at 27 R. N. Mukherjee Road, Calcutta and the postal department have set up the said Post-office for the benefit of the members of the public. This Court cannot be unmindful in respect of the purpose for which the portion of the premises in question is being utilised by the postal department but at the same time this Court also cannot permit any authority to occupy the property of a citizen and to utilise the same without being authorised by any provisions of law. Accordingly, in the present case, the authorities of the postal department are directed to hand over vacant possession of the premises in question to the petitioners without any further delay. For the foregoing reasons, this writ petition succeeds and the same is, therefore, allowed. The respondent Nos. 1 to 8 are directed to hand-over the vacant possession of the portion of the ground floor of the premises No. 27 R. N. Mukherjee Road, Calcutta, now occupied by the Postal Department to the petitioners forthwith although the State respondents, namely the First Land Acquisition Collector, Calcutta may take necessary step in future under the emergency provision of the Land Acquisition Act, 1894 in respect of the said premises, if so advised. However, I am not giving any liberty to the respondents nor am I passing any order which will have the effect to preventing the State respondents from taking steps lawfully under the provisions of Land Acquisition Act or any other provisions of law. In the facts and circumstances of the case, there will be, however, no order as to costs. Let xerox certified copy of this judgment be made available to the respective parties, if applied for, on urgent basis. Petition succeeds