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Jayanta Kumar Banerjee Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 7694 (W) of 1979
Judge
Reported inAIR1981Cal138
ActsConstitution of India - Article 226; ;Land Acquisition Act, 1894 - Section 4
AppellantJayanta Kumar Banerjee
RespondentState of West Bengal and ors.
Appellant AdvocateDipankar Gupta, ;Saktinath Mukherjee, ;N.C. Mallick, ;Sambhunath Ray and ;S. Pal, Advs.;Tarun Kumar Basu, ;Bidyut Kiran Mukherjee and ;L.K. Chatterjee, Advs.
Respondent AdvocateD.K. Sen, ;A.P. Chatterjee, Addl. Standing Counsel, ;Sadhan Chandra Gupta, Addl. Adv.-General, ;Arun Kumar Matilal and ;Biplab Mitra, Advs., ;Gautam Chakraborty, S. Mitra and ;Uday Narayan Biswas, Adv
Cases ReferredAmon v. Raphael Tuck
Excerpt:
- orderg.n. ray, j. 1. in this rule, a notification under section 4 of the land acquisition act, 1894 bearing the date of publication as on may 28, 1979 in the calcutta gazette (extraordinary) issued by the government of west bengal, land utilisation and land reforms and land revenue department in respect of premises no. 4 middleton row, calcutta, measuring more or less 2894 of a hectare (.7076 of an acre) is under challenge. the petitioner contends that respondent no. 7, dr. graham's homes, kalimpong, a society registered under the societies registration. act is the owner of the land and building situated at premises no. 4 middleton row, calcutta and the respondent no. 8, mr. robert hamilton wright was the president and/or chairman of the said dr. graham's homes at the relevant time and.....
Judgment:
ORDER

G.N. Ray, J.

1. In this Rule, a Notification under Section 4 of the Land Acquisition Act, 1894 bearing the date of publication as on May 28, 1979 in the Calcutta Gazette (Extraordinary) issued by the Government of West Bengal, Land Utilisation and Land Reforms and Land Revenue Department in respect of premises No. 4 Middleton Row, Calcutta, measuring more or less 2894 of a hectare (.7076 of an acre) is under challenge. The petitioner contends that respondent No. 7, Dr. Graham's Homes, Kalimpong, a society registered under the Societies Registration. Act is the owner of the land and building situated at premises No. 4 Middleton Row, Calcutta and the respondent No. 8, Mr. Robert Hamilton Wright was the President and/or Chairman of the said Dr. Graham's Homes at the relevant time and the said Mr. Robert Hamilton Wright represented to the petitioner that he had the authority to conduct the affairs of the respondent Dr. Graham's Homes including negotiations for disposal of its properties and assets The petitioner contends that sometime in of about 1977, certain negotiations took place between the representatives of the respondent Union of India and the sard Dr Graham's Homes regarding purchase of the said premises by the respondent Union of Tndia for the purpose of its Communications Department, but the said negotiations failed. Thereafter, the respondent Dr. Graham's Homes had also negotiated with the Government of West Bengal for the sale of the said property without any substantial result. In or about April, 1978, the petitioner having come to know that the respondent Dr. Graham's Homes was intending to sell all the sard properties, took inspection of the same under a written authority of the said Mr. Robert Hamilton Wright. After the aforesaid inspection the petitioner with intent to purchase the said property, started negotiations with the respondent Mr. Robert Hamilton Wright as the representative of the respondent Dr. Graham's Homes and the said Mr. Robert Hamilton Wright by his letter dated 7th May, 1978 assured the petitioner that he would recommend to the Board of Management of the respondent Dr. Graham's Homes to approve and/or accept the petitioner's offer to purchase' the said property and by letter dated 2nd June, 1978, the respondent Mr. Robert Hamilton Wright acting as the President and Chairman of the said Board confirmed that the Board had agreed to sell the said property to the petitioner and theirAdvocate had been finalising the draft agreement for sale. At the request of Dr. Graham's Homes and Mr, Robert Hamilton Wright sometime in June 1978 the petitioner agreed to donate a sum of Rs. 3,90,900/- to Or. Graham's Homes and duly communicated the said offer of the petitioner to Mr. Robert Hamilton Wright by a letter dated 9th June, 1978. The said offer for donation was ultimately included in the purchase price as a result of further negotiations and ultimately the petitioner acceded to the request of the respondents Dr. Graham's Homes and Mr. Robert Hamilton Wright to enhance the purchase price to Rs. 36,00,000/-and to pay a sum of Rs. 6,00,000/- by way of earnest money.

2. The petitioner further contends that some time between August and October, 1978, various draft agreements for sale were prepared and/or considered by the concerned parties and/or their respective Advocates. Ultimately on the top of one of such draft agreement for sale, Mr. Robert Hamilton Wright on October 3, 1978 made an endorsement in his own hand inter alia to the effect that he had studied the said draft and as far as he was concerned it was in order, but he requested his learned Advocate Mr. S. S. Hazra to have a final check on all points as safeguard to their position. It was also indicated that after that Mr. Sen, the learned Solicitor for the petitioner, would draw up the formal agreement on stamped paper for signature by the next week-end. It appears that the draft agreement drawn up by Mr. Sen was forwarded to Mr, S. S, Hazra, and the said agreement was redrafted by the said learned Advocate and he had also signed and initialled all the four pages thereof. The respondent Mr. Robert Hamilton Wright also made certain corrections in his own hand and at the top of the agreement under hissignature on October 8, 1978, fee made anendorsement to the effect 'Approved and the Memorandum of Agreement may now be engrossed'. The petitioner contends that in the aforesaid circumstances there had been a concluded contract by and between the petitioner and the respondent Dr. Graham's Homes for sale of the said premises. The petitioner contends that Mr. Graham's Homes and Mr. Robert Hamilton Wright were fully aware that the purchase money including the earnest money would be paid by the petitioner under arrangement with Vysya Bank Limited at 37, Colootola Street, Calcutta. The petitioner also finalised the requisite financial agreement with the said Bank and the learned Advocate for the petitioner byhis letter addressed to the Chairman of Dr. Graham's Homes asked for clarification of Clause 4 of the finally approved draft agreement for sale regarding the time for possession of the third storey of the building and the two garages and the passages to the third storey mentioned therein. Dr. Graham's Homes by their letter dated 7th Nov., 1978 through their learned Advocate called upon the petitioner to complete the proposed sale by payment of entire consideration money within three days' time and inducted that in default the agreement for sale would stand repudiated. As the said time was not only too short but unreasonable and un-warranted and execution and registration of a conveyance within such a short time was virtually an impossibility, the petitioner gave a reply to the said letter and the learned Advocate of the petitioner under his covering letter dated 28th November, 1978 addressed to the concerned respondents forwarded the Memorandum of Agreement engrossed on stamped paper and also informed that the petitioner was ready to pay by Bank Draft the earnest money of Rs, 6,00,000/-and he could arrange for tile Bank Guarantee for the balance of consideration money, if necessary. But as the petitioner subsequently came to know and/or realised that the respondent Dr. Graham's Homes was intending to resile from the said concluded contract, the petitioner instituted Title Suit No. 2356 of 1978 in the City Civil Court at Calcutta against Dr. Graham's Homes and Mr. Robert Hamilton Wright inter alia praying for specific performance of the contract for sale and other ancillary reliefs as set out in the petition. After filing the said suit, the petitioner also made an application in the said suit for injunction restraining fee defendants from entering into any agreement of sale or transaction of the saidproperty or any portion thereof or from dealing with the same in any manner until the disposal of the said suit. The City Civil Court, Calcutta, issued a notice calling uponthe defendants to show cause and also passed an ad interim order of injunction in terms of the prayer. The petitioner contends that at the hearing of the application for temporary injunction the learned Advocate for the respondent Dr. Graham's Homes submitted and/or suggested inter alia that the petitioner should be directed to pay Rs. 6,00,000/- to the defendants therein and furnish Bank Guarantee for the balance sum of Rs. 30,00,000/- or alternatively furnish Bank Guarantee for the entire amount of Rs. 36,00,000/-. The petitioner contendsthat the petitioner immediately accepted both the said suggestions on behalf of the defendants and even agreed to complete the purchase by 8th Feb., 1979. On the score of getting instructions from Mr. Robert Hamilton Wright who was then out of station, the hearing of the application was adjourned and on the next date of hearing it was also submitted by the Counsel for the defendants that specific instructions could not be obtained as Mr. Hamilton Wright was still out of Calcutta. The petitioner contends that the Vysya Bank by a letter dated 22nd Jan., 1979 recorded its willingness to furnish Bank Guarantee for the entire amount of Rs. 36,00,000/- or to accommodate to the tune of Rs. 36,00,000/-. It appears that subsequently the defendants raised a contention that the City Civil Court had no pecuniary jurisdiction to direct payment of Rs. 36,00,000/- or to direct for furnishing Bank Guarantee for the said sum. Thereafter, the petitioner on legal advice applied for withdrawal of Title Suit in the City Civil Court with liberty to file a fresh suit and the application for withdrawal was allowed. The petitioner thereafter filed the suit in the ordinary original civil jurisdiction of this Court being Suit No. 184 of 1979 for certain reliefs as set out in para 35 of the writ petition. The petitioner also applied for interim order of injunction in the said suit and on 19th March, 1979, this Court passed an interim order as set out in paragraph 37 of the writ petition. After a contested hearing on 12th June, 1979 the said application for injunction was finally disposed of on certain terms as set out in para 38 of the writ petition. The said suit is pending adjudication before this Court. The petitioner contends that after the said order was passed by this Court in final disposal of the said application for injunction, the petitioner was informed on or about 13th June, 1979 that certain purported acquisition proceedings were being sought to be initiated and/or had been initiated in respect of the disputed premises. The learned Advocate of the petitioner thereafter by his letter dated 14th June, 1979 informed the Second Land Acquisition Collector, Calcutta about the said order dated 12th June, 1979 passed by this Court in disposing of the application for temporary injunction and on 18th June, 1979, the Second Land Acquisition Collector received the said letter. It appears that the Second Land Acquisition Collector by his letter dated 25th June, 1979 informed Shri N. C. Mullick, the learned Advocate acting on behalf of thepetitioner that a meeting had been arranged on 4th July, 1979 on the subject mentioned in the said letter and requested the learned Advocate of the petitioner to attend the same. By subsequent letter dated 3rd July, 1979 the said Second Land Acquisition Collector informed Sri Mullick that the meeting scheduled to be held on 4th July, 1979 has been adjourned till 18th July, 1979. Thereafter the petitioner along with the said Shri Mullick attended the chamber of the respondent Second Land Acquisition Collector on 18th July, 1979 at the specified time but was informed by the Second Land Acquisition Collector that the meeting had to be adjourned because of the absence of the representatives of respondent Dr. Graham's Homes. Shri Mullick, however, on 18th July, 1979 enquired about the purpose of the said meeting whereupon he was told by the Second Land Acquisition Collector that it had been decided to acquire the said property and that the said Shri Mullick had been invited to attend the meeting because of his aforesaid letter dated 14th June, 1979. The petitioner contends that Sri Mullick also enquired specifically as to whether any notification had been issued or not under Section 4 of the Act whereupon the Second Land Acquisition Collector, informed that no notification under Section 4 had yet been published. The subsequent meeting was however fixed on 2nd August, 1979.

3. The petitioner contends that thereafter on 27th July, 1979 the petitioner was surprised to know that a purported notification under Section 4 dated 28th May, 1979 in respect of the said premises was published in the Calcutta Gazette (Extraordinary issue) bearing the date as 28th May, 1979. The petitioner on the same day purchased two copies of such purported Gazette from the Government Press at Alipore. The petitioner thereafter also made appropriate enquiries and came to know that the text of the purported Gazette notification was received by the Publication Department not earlier than 25th July, 1979. It appears from Annexure 'A' to the supplementary affidavit of the petitioner that the Superintendent, West Bengal Govt. Press, informed that the printing of the said notification dated 28th May, 1979 since published in the Calcutta Gazette (Extraordinary) was printed on 18th July, 1979. The binding was made on 21st July, 1979 and the Publication Department received such notification after binding on 25th July, 1979 underDelivery Note No. 23897. The petitioner contends that the said purported acquisition proceeding was mala fide and was made with sole intent to defeat the lawful agreement between the petitioner and the said Dr. Graham's Homes and in any event the Gazette Notification bearing the date as 28th May, 1979 is invalid and of no consequence because, in fact, such Gazette publication was not made in the month of May but long thereafter in July, 1979.

4. A preliminary objection was, however, raised by the learned Counsel appearing for different respondents namely to the effect that the petitioner not having any interest in the property in question has no locus standi to move the said application under Article 226 of the Constitution of India and on that score alone, the writ petition should be dismissed.

5. Mr. Gupta, the learned Additional Advocate-General of West Bengal appearing for respondents Nos. 1, 2 and 3, contended that for enforcing a right under Article 226 of the Constitution, a party must establish that he had a right and the said right was invaded and/or threatened. He contended that the existence of a legal right was the foundation of a petition to be validly presented under Article 226 of the Constitution. He contended that under Section 54 of the Transfer of Property Act, an agreement of sale could not create any right in the property. Mr. Gupta contended that only a person aggrieved could present an application under Article 226 of the Constitution and the concept of a person aggrieved, would vary according to the context of the Statute. In this connection, Mr. Gupta referred to the decision of the Supreme Court made in the case of Bar Council of Maharashtra v. M. V. Dabholkar, reported in : [1976]1SCR306 . It was held by the Supreme Court in the said case that according to the context of the Statute the notion of 'person aggrieved' may vary. One of the meanings is that a person would be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make him 'a person aggrieved'. In the facts of that case, it was held by the Supreme Court that the Bar Council had the moral responsibility to ensure that the members of the legal profession must follow some code of conduct. The Bar Council of Maharashtra could not be treated as a mere busybody, but in viewof the responsibilities which the Bar Council had, the Bar Council was certainly interested in the adjudication made in a dispute raised relating to the conduct of a member of the legal profession. Mr. Gupta contended that only under the said special circumstances, it was held that the Bar Council of Maharashtra had locus standi although Supreme Court had clearly indicated that normally until his legal right was invaded and/or threatened, a party was not entitled to move a petition under Article 226 of the Constitution of India. Mr. Gupta also referred to another decision of the Supreme Court made in the case of Jasbhai Motibhai Desai v. Roshan Kumar, reported in : [1976]3SCR58 . In the said decision, earlier decisions of the Supreme Court on the question of 'party aggrieved' were reviewed and/or considered by the Supreme Court and it was held that the expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the Statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. Referring to the said decision, Mr. Gupta contended that the Land Acquisition Act had no concern with any ethical or disciplinary proceeding but it was concerned with the private right of the person having interest in the land vis-a-vis acquisition of such land. Accordingly the petitioner not having any interest in the land on the basis of the said agreement, even assuming that the agreement was a concluded contract between the parties, the petitioner had no locus standi to present the said application under Article 226 of the Constitution inter alia challenging the legality and validity of the acquisition proceeding and/or the validity of the said notification under Section 4 of the Land Acquisition Act. Mr. Gupta also contended that from the materials on record, it also transpired that there was no concluded contract as yet and Dr. Graham's Homes had repudiated the contract and/or had not agreed to sell the property. He submitted that the petitioner had instituted a suit before this Court for certain declaration relating to the said property, but up till now, the petitioner did not get any such declaration from any court of law on the basis of which the petitioner could claim any legal right to the property. He also contended that under the provisions of Urban Land (Ceiling and Regulation) Act,1976 there could not be any light to transfer of a property falling within the urban complex under the said Act in the absence of a permission from the concerned authority. For this contention, he referred to Section 27(1) of the said Act. He contended that the premises in question being within the city of Calcutta was fully covered by the said Act and as such, in the absence of any permission from the concerned authority for transferring the aforesaid premises covering an argu of about 45 cottahs of land, there could not have been any valid conveyance of the said property.

6. Mr. Sen, the learned Counsel appearing on behalf of Union of India and other respondents, also contended that under Section 54 of the Transfer of Properly Act, an agreement of sale did not create any interest in the property and such agreement still remained in the domain of contract. He submitted that if such contract had been frustrated because of the acquisition of the property in exercise of the right of eminent domain then the party to the contract would not be in a position to enforce the contract and as such, he could not also question the validity of acquisition proceedings. In this context, Mr. Sen referred to the decision of the Supreme Court made in the case of Satyabrata Ghose v. Mugneeram Bangur 6c Co., reported In : AIR1954SC44 . B. K. Mukherjea, J. (as his Lordship then was) speaking for the court held in the said decision that the doctrine of frustration was really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the Act agreed to be done and hence would come within the purview of Section 56 of the Indian Contract Act. It would be incorrect to say that Section 56 of the Contract Act would apply only to the case of physical impossibility and that where the said section is not applicable, recourse can be had to the principles of English law of frustration. It must be held also that to the extent that the Indian Contract Act dealt with a particular subject, it was exhaustive upon the same and it was not permissible to import the principles of English law which would be dehors these statutory provisions. Mr. Sen referred to Clause 4 of the agreement between fee petitioner and Or. Graham's Homes since annexed to the writ petition and submitted that Clause 4 of the agreement had dearly indicated that the agreement to convey was subject to any acquisition or requisition proceeding. He also supported Mr. Gupta in his contention that without therequisite permission from the prescribed authority under the Urban Land (Ceiling and Regulation) Act, 1976, the property in question could not be conveyed to the petitioner. Mr. Sen also contended that statutory bodies created under the Land Acquisition Act had been discharging their statutory duties and functions and the vires of the said Land Acquisition Act had not been challenged. Accordingly the action taken by such statutory bodies could not be challenged in the instant application under Article 226 of the Constitution.

7. Mr. Goutam Chakraborty, the learned Counsel appearing for Dr. Graham's Homes, contended that the petitioner had no locus standi to present the writ petition because the petitioner did not acquire any interest in the property under the said agreement for sale. He also contended that in paragraph 4 of the writ petition the ownership of Dr. Graham's Homes in respect of the premises in question was clearly admitted by the petitioner. He also submitted that even assuming that there had been a concluded contract between the parties the petf-tioner was not entitled to claim title to the property as a matter of right and under the Specific Relief Act it was entirely the discretion of the court either to direct for specific performance of the contract by conveying the property or grant damages for breach of contract.

8. Mr. Saktinath Mukherjee, the learned Counsel appearing tor the petitioner, in answer to the said preliminary objection raised by the learned Counsel appearing for the respondents about the maintainability of the writ petition at the instance of the petitioner, submitted that in India, an agreement for sale would not create any interest in the property but it would not be correct to contend that such agreement between the parties did not create any right between the contracting parties. He submitted that any reliance on Section 56 of the Indian Contract Act must proceed on the footing that the acquisition was a fait accompli but it should be noted that no acquisition of the property had been made but only a purported notification under Section 4 of the L. A. Act had been issued. By the said purported notification only a tentative opinion was sought to be formed by the requiring authority that the property in question was likely to be acquired. He submitted that under the Transfer of Property Act the petitioner might not have acquired any interest or title to the property as yet, but certainly some rights were created in favour of thepetitioner because of the said concluded contract. He submitted that for enforcing the right of the petitioner under the said concluded contract the petitioner had instituted the said suit in the original jurisdiction of this Court and the petitioner had been taking steps to enforce his right for specific performance of the contract for sale of the premises in question. If in the meantime any acquisition proceedings had been initiated for the ultimate purpose of acquisition of the premises in question, it must be held that the petitioner had been prejudicially affected by such acquisition proceeding. He submitted that for determining locus standi to move a writ petition acquisition of title to or interest in the property could not be the sole criterion but prejudicial affectation of a right should be the test to determine whether a party had a locus standi as riot to move a writ petition to safeguard such prejudicial affectation of his right. In this connection. Mr. Mukherjee referred to the decision of the Supreme Court made in the case of Gadde Venkateswara Rao v. Govt. of Andh Pra, reported in : [1966]2SCR172 . He submitted that in the said case the appellant was representative of the committee which for all practical purposes acted as a trustee for the amount collected. The Supreme Court held that in such circumstances the appellant had locus standi to present the writ application. He also submitted that the Supreme Court in the decision made in Jashbhai Motibai's case : [1976]3SCR58 (supra) clearly laid down that the expression 'ordinarily,' suggested that it is not a cast-iron formula. In the special facts of the case explained by the Supreme Court, it was however held that the appellant in the said case had no interest what' soever in the subject-matter of litigation but in the instant case the facts were otherwise. He submitted that the petitioner had certainly an interest in the subject-matter of the litigation, namely, the acquisition proceeding in respect of the property which was the subject-matter of a contract between the parties. He also referred to a decision made in the case of Amon v. Raphael Tuck & Sons Ltd., reported in (1956) I All ER 273, It was held in the said decision that a person was legally interested in the answer only if he could say that it might lead to a result that would affect him legally, that is, by curtailing his right.

9. Mr. Mukherjee contended that if the property in question was acquired then the right of the petitioner to get back the property by way of specific performance of thecontract would certainly be curtailed and in the aforesaid circumstances it could not be contended that the petitioner was a mere busybody having no connection or interest in the subject-matter of the dispute; He submitted that a person going to suffer such frustration of contract in the event of acquisition of the property must have locus standi to question the correctness of the action relating to the acquisition which would otherwise amount to frustration of contract.

10. After considering the respective submissions of the learned Counsel appearing for the parties, it appears to me that Mr. Mukherjee is amply justified in his contention that the expression 'ordinarily' is not a cast-iron formula and until a party has acquired any title to the property or pecuniary interest therein he cannot present a petition under Article 226 of the Constitution challenging an action concerning such property. In my view, Mr. Mukherjee is justified in his contention that acquisition of interest in a property is not the sole test for determining the locus standi to move the writ petition, but prejudicial affectation of a right concerning the property should be the test to determine the locus standi to move a writ petition. I respectfully agree with the view made in the case of Amon v. Raphael Tuck & Sons Ltd. (1956-1 All ER 273) that a person is legally interested in an answer only if he can say that it may lead to the result that would affect him legally, that is, by curtailing his right In the facts and circumstances of the case, the right of the petitioner to enforce a contract for sale would be curtailed and such contract would be frustrated if the property in question would be acquired. In such circumstances, the petitioner must have locus standi to question the correctness of the acquisition proceeding because acquisition of the property would ultimately frustrate the contract.

10-A. On the merits of the case of the petitioner, Mr. Mukherjee contended that from the information given by the Superintendent, West Bengal Government Press as noted hereinbefore, it was quite apparent that the purported notification under Section 4 of the West Bengal Land Acquisition Act was printed only on 18th July, 1979 and the same was sent for binding on 21st July, 1979 and after such binding the Publication Department received the same only on 25th July, 1979 under delivery note No. 23897. Accordingly the Gazette Notification of tile said Notification under Section 4 showing on the face of it that it was published on 28th May,1979 was clearly antedated and (he statutory requirement of Gazette Notification not having been lawfully made, the said Notification must be held to be invalid. He submitted that to constitute a legal and valid notice under Section 4 of the Land Acquisition Act, such notice was got to be published in the official Gazette, In the instant case, it was clear and evident that such publication was not made on the date mentioned in the Gazette and as such, it must be held that there was no valid notification in the eye of law. He submitted that it could not be contended that the actual date of publication should be held as the date of publication of the notification although another date of publication was mentioned in the Gazette. Mr. Mukherjee contended that by such antedating the Gazette Notification, the very sanctity of the Gazette notification was lost. It was really unfortunate that the State Government had allowed such antedating of the notification published in the official Gazette although various consequences would follow from the date of the publication of the Gazette notification. He submitted that if ultimately the property would be acquired, the date of Gazette publication would he very relevant for determining the valuation of the property. Similarly, the time limit to file objection against the intended acquisition under Section 5 was linked up with the date of the Gazette notification. There were other provisions in the Land Acquisition Act which also indicated that the date of the Gazette publication was very relevant and vital for various consequences affecting the rights of the parties. In the aforesaid circumstances, Mr. Mukherjee contended that Section 4 notification having a considerable bearing on various consequences following from publication of such notification in the official Gazette the notification must be published in the Gazette correctly and in strict compliance of the requirement of law, and it could not be contended that if the Gazette Notification had been antedated, the real date of publication would be substituted in place of the date mentioned in the Gazette publication. In such circumstances, Mr. Mukherjee contended, that Gazette publication must be held to be invalid and/or void ab initio. In this connection, he referred to the executive instructions issued by the Government of West Bengal as contained in the West Bengal Land Acquisition Manual (1951) Part I. In Chapter II, Rule 12, it has been provided for, that on publication of notice under Section 4 in the official gazette, substance of such notification will be givenby the Collector at convenient places in the locality. He submitted that it was quite apparent and evident that for initiating an acquisition proceeding, publication of Sec. 4 Notification in the Official Gazette was the starting point and only on publication of such notification in the Official Gazette other steps were required to be taken because various consequences would follow from such publication of the notification under Section 4 in the official Gazette. He submitted that it would also appear that the Second Land Acquisition Collector had been holding meeting with the learned Counsel of the petitioner, Mr. Mullick and also with the petitioner on dates long after May 28, 1979 and it was specifically stated by him that no notification under Section 4 was published up to that date but it was only intended that acquisition would be made in respect of the premises in question. Mr. Mukherjee submitted that such antedating of the Gazette Notification was made mala fide in order to frustrate the petitioner's right to enforce the said contract for sale of the property.

11. Mr. Gupta, the learned Additional Adocate General of West Bengal, in answer to the aforesaid contention of Mr. Mukherjee, submitted that as a matter of fact the date of publication of the Gazette Notification was not May 28, 1979 but he conceded that such notification was made in July as contended by the petitioner. But he submitted that after such notification in July, the substance of the notification was published in accordance with the provisions of Section 4 of the Land Acquisition Act at different places and substance of such notification was published on 7th August, 1979. He produced the records of the acquisition proceeding at the hearing and it will appear that on 7th August 1979 copies of the Gazette Notification were forwarded for publication for the general information of the public at different places and the said notifications were hung up in the office notice boards of such places. Mr. Gupta contended that it would appear from the notification published at various places under Section 4 of the Act that it was stated that any person interested in the land in question who had any objection thereof might within 30 days on which public service of the substance of the notification was given in the locality, file objection in writing before the Second Land Acquisition Collector at 5 Bankshall Street, Calcutta. Mr. Gupta contended that purpose of the notification under Section 4 was to inform the interested parties that there was likelihood of acquisition and to enable the interested par-ties to put their objections against the proposed acquisition of the land. No one had suffered any prejudice whatsoever because the public notification was made on 7th August, 1979 and objection under Section 5 could have been filed within 30 days from such public notification and not from May 28, 1979, viz. the date appearing on the Gazette Notification. Mr. Gupta contended that due to serious load-shedding prevailing in the State causing serious backlog of works in the publication department of the Government Press, the matters could not be published on the scheduled dates but the scheduled date of publication of the said notification was only mentioned in the Gazette Notification. He submitted that even assuming that such incorrect dating was not desirable and actual date of publication should have been given on the Gazette, but publication of a wrong date on the Gazette Notification could not have invalidated the Gazette Notification itself. The Gazette Notification must in the circumstances be read as published on the date of actual publication although some other date was mentioned in the Gazette. He submitted that it would not be correct to contend that the Gazette Notification was wholly invalid only because a wrong date of publication was mentioned in the Gazette. He also submitted that there could not be any question of mala fide so far as the State Government was concerned. A proposal for acquisition of the building for the purpose of Union Government viz. for the communication department of the Union Government was received by the State Government and the State Government being satisfied that such acquisition was intended for a public purpose, published the said Gazette notification under Section 4. There was no question of acting mala fide by the State Government because the intended acquisition was not for the purpose of the State Government but for the purpose of the, Central Government.

12. After considering the aforesaid submissions of the learned Counsel for the parties on the question of validity of the Gazette publication of the notification under Section 4 of the Land Acquisition Act, it appears to me that it is really very unfortunate that the State Government has allowed antedating of the Gazette publication. In my view, it was highly improper to give 28th May as the date of publication of the Gazette notification when actually it was published in the third week of July. There cannot be any justification for antedating aGazette publication on the plea that the date mentioned in the Gazette was the intended date for the publication of the Gazette when actually for some reason or other it was not possible to publish the Gazette on the intended date. It may be noted that the Gazette publication in question is an Extraordinary issue and hence it cannot be contended that the scheduled date was mentioned on the Gazette publication although factually the publication was made at a much later date. Mr. Mukherjee is justified in contending that various consequences follow on the publication of the Gazette Notification under Section 4 of the Land Acquisition Act. Many valuable rights can be defeated by referring to the date of notification appearing on the Gazette if a party does not know the actual date of publication. It should also be noted that it is quite unlikely that a common man should know the actual date of publication. The petitioner in the instant case is singularly fortunate in getting the actual date of publication from the Superintendent of the Government Press. Sanctity of the Gazette Notification must be maintained by the Government because under different statutes, various rights follow from the Gazette publications made under such statutes. Apart from that, an antedating of Gazette publication is likely to undermine public faith in the sanctity of the Gazette publication.

13. In the aforesaid circumstances, I amnot inclined to accept the contention of thelearned Additional Advocate General thatalthough there had been antedating ofGazette publication, the said Gazette notification should be held to be a valid notification by substituting the actual date of publication in place of the date mentioned in theGazette. In my view, the said Gazette publication concerning Notification No. 7894LA(II)/4B-6/79 dated 28th May, 1979 underSection 4 of the Land Acquisition Act in respect of premises No. 4, Middleton. Rowmust be held to be illegal and void and noteffect should be given on such. Gazettenotification and all actions taken pursuant tosuch publication of the said notification mustalso be held as illegal and of no consequence. The Rule is disposed of accordingly. There will be, however, no order asto costs. This order however will not preclude the concerned authorities to publish fresh notification in the official gazette underSection 4 of the Land Acquisition Act inaccordance with law.

14. The learned Counsel appearing for the respondents Nos. 7 and 8 prays for stay of operation of this order. Let the operation of this order remain stayed for a period of two weeks after the re-opening of the Court after long Puja Vacation.


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