Salil Kumar Datta, J.
1. This is an appeal from the orders dated November 12 and 24, 1976 passed by M. M. Dutt J modifying his earlier order dated August 5, 1976 disposing the Civil Rule No. 18143 (W) of 1975.
2. For the establishment of Haldia Dock, lands of residents in Mouza Debhog whereon, it was alleged, their homes and hearths were situated, were acquired under the provisions of the Land Acquisition Act, 1894 by the State of West Bengal(sic) the Board of Trustees for the Port of (sic) cutta (hereinafter referred to as the (sic)cutta Port Trust'). There were negotiations between the State Government and the representatives of the people of Mouza Debhog for rehabilitation of the inhabitants of Mouza Debhog affected by the said acquisition and the Government of West Bengal by its letter of January 8, 1974 communicated its decision to tile Collector of 24-Parganas to allot plots to the affected families of the Mouza Debhog for rehabilitation out of lands adjacent to the town area to be obtained from the Calcutta Port Trust, on payment of coats of acquisition, and 4 cottah plot without, development was to be allotted to each affected family.
3. The Collector of Midnapore by Its letter dated July 17, 1974 informed the Secretary, Haldia Mulyan Committee, as representing the local people, to arrange for deposit of Rs. 3,01,699.75 p. to the Calcutta Port Trust as costs of acquisition of 28.33 acres of such land for allotment to affected families of Mouza Debhog. The Collector further advised that on such deposit the said under-developed land would DP handed over to the Secretary for allotment to the evicted families of Mouza Debhog. The same position was reiterated in the letter of the Special Land Acquisition Officer, Haldia Project, Midna-pore dated August 14, 1974 and letter dated October 1, 1974 (Annexs. B. D, G & I respectively of the petition of motion in C, R, No. 6665(W) of 1974 referred to hereinafter).
4. Before the arrangements were finalised, it was alleged, on or about November 3, 1974 some residents of Mouza De-bhog were served with notice under Section 47 of the Act by the Government without honouring the commitments aforesaid and informing them that as they failed to deliver possession of the lands acquired, possession of such lands would be taken by the Additional District Magistrate, Tamluk on November 8, 1974. Some of residents of the Mouza numbering 160 thereupon moved an application in this Court under Article 226 of the Constitution challenging the acquisition and for appropriate writs commanding the respondents the State of West Bengal and the Calcutta Port Trust to show cause why the notices for possession should not be cancelled and directing them not to take possession of the properties of the petitioners until they were provided with suitable accommodation as disclosed in Government communications referred to above. On this application Civil Rule No. 6665 (W) of 1974was issued on November 5, 1974 with interim injunction restraining them from taking possession of the lands acquired in Debhog Mouza.
5. The Rule was contested by the respondents by filing affidavits-in-opposition and was ultimately disposed of by A. K. Mookherjee, J. by order dated April 8, 1975 in effect on consent. It was provided therein as follows :--
(i) The petitioners in the Rule would deposit the costs of acquisition being Rs. 3,01,699.75 p. of the lands described in the schedule to the order within three months from date. The schedule was subsequently modified in minor aspects.
(ii) Upon such payment the Calcutta Port Trust would make over possession thereof to the Special Land Acquisition Officer, Haldia who would in his turn make over possession of such lands within one week thereafter to the authorised representatives of the petitioners.
(iii) Within November 30, 1975 the petitioners would make over possession of the acquired lands in their possession and in default possession would be taken 'without recourse to law'.
(iv) The Special Land Acquisition Officer (Haldia) Midnapore on receipt of possession of acquired lands from the petitioners would forthwith deliver possession of the same to the Calcutta Port Trust
6. It may be noted here that the acquisition of lands described in the schedule to the said order on payment of costs of acquisition thereof by the petitioners therein was intended for the rehabilitation of the families of Debhog Mouza who were affected by the impugned acquisition. Each of such family was to be allotted four cottah plot of undeveloped land out of lands to be acquired aforesaid in accordance with the commitment made by the Government which was also the petitioners' case and the basis of such proposed acquisition under the order though the same was not expressly mentioned therein.
7. In terms of the order of April 8, 1975 in C. R No. 6665(W) of 1974, the petitioners therein (excluding some about 26 who did not make any proportionate contribution and as such not interested) made payment of the entire amount of Rs. 3,01,699.75 p. as the costs of acquisition of land for rehabilitation of the persons of Mouza Debhog affected by the acquisition of the Calcutta Port Trust. Thesepetitioners formed a co-operative housing society named as Debhog Rehabilitation Colony Development Co-operative Society Ltd. which confined its membership to persons evicted by Haldia Dock Project and intended to be rehabilitated in Debhog. Thereafter the petitioners approached the respondents for delivery of lands to them and they were informed that the possession would be given to one of their nominee selected unanimously. The petitioner No. 107 of the 'Basic' petition appeared before the Special Land Acquisition Officer Haldia Project with authorisation letter in his favour by 126 petitioners out of the original petitioners, the other remaining petitioners did not sign as they did not contribute towards compensation money and as such were not interested. The document of authorisation provided that possession was to be made either to Sibapada Tripathy or to him as the Secretary of the Society. The respondent No. 3 however did not accept the authorisation letter and it was thug evident, it was alleged, that there was no intention on the part the said respondent to give possession of the lands in pursuance of the order in C. R. No. 6665(W) of 1974 and the respondents were trying to avoid giving possession to the petitioners.
8. On the above allegations the said 126 petitioners moved another application under Article 226 of the Constitution praying for issuance of appropriate writs directing the Special Land Acquisition Officer Haldia Project to give possession of land of the Schedule to aforesaid order dated April 8, 1975 in Civil Rule No. 6665(W) of 1974 in terms thereof to Shibapada Tripathy as their authorised representative or to him as the Secretary of the Society and in the meantime not to take possession of hearths and homes of the petitioners situated in acquired lands for Haldia Port. In this application other remaining petitioners of the earlier rule were made pro forma respondents. This Court on this application issued a Rule on November 24, 1975 being Civil Rule No. 18143(W) of 1975 in terms of the prayer granting an ad interim injunction restraining the respondents from taking possession of the said acquired lands.
9. The Rule was opposed by the respondents who filed two sets of affidavits-in-opposition one by the Calcutta Port Trust respondent No. 5 and the other by the State of West Bengal and Its concerned Officers respondents Nos. 1 to 4. The common objection was that in ab-sence of all the petitioners the order of April 8, 1975 could not be enforced. It was further stated that the acquisition of lands for the Haldia Project was legally and validly made. The Calcutta Port Trust admitted that there were some mistakes in respect of the lands of the schedule to the order, for rectification whereof, steps were being made. It was submitted that the President and the Secretary of the Haldia Mulyan Committee were at the back of the society interested in selling lands at higher prices for their own benefit. The authorisation in favour of Shibapada Tripathy, it was contended, was rightly refused as he was not authorised by all the petitioners of the C. R. No. 5665 (W) of 1974.
10. The Special Land Acquisition Officer Haldia Project, affirming the affidavit-in-opposition on behalf of the respondents Nos. 1-4 stated that the letter of authorisation produced before him did not appear to be genuine and as such he wanted to verify the same. The petitioner No. 1 wanted 2 days time to resubmit the document and that the same was not filed till then. Accordingly it was recorded by him that the petitioners failed to comply with the directions of this Court. Some other petitioners of C. R. No. 6665 (W) of 1974 informed by letters that they were not interested in rehabilitation nor had they authorised anyone as their representative. Further there was written report from Sasadhar Samui of Debhog that the Society was demanding from affected persons price at the rate of Rs. 200/- per decimal, otherwise, no land would be allotted and in fact such price had been realised from many residents of Debhog. In view of the non-compliance by the petitioners of the provisions of order of April 8, 1975 by unanimously selecting their representative the respondent No 3 was unable to deliver possession of lands acquired for purpose of rehabilitation of Debhog residents and it was no longer possible to implement the order. As however the lands acquired by the Calcutta Port Trust on payment of full compensation were urgently required for Haldia Port Project, it was prayed that the respondents should be given, leave to take steps for obtaining possession. Except as aforesaid all other allegations were denied.
11. The petitioners filed affidavit-in-reply to the above affidavits denying allegations therein made but there was no effective denial to the allegations that the society had been charging higher rates forallotment of land out of the lands acquired for rehabilitation as aforesaid.
12. The rule came up for hearing before M. M. Dutt, J. on August 5, 1976 and the learned Judge directed the petitioners who signed the letter of authority to appear before the respondent No 3 for verification of signatures by him. On his satisfaction about the signatures of the petitioners in the letter of authority the said respondent would deliver possession of the lands described in the schedule to the said order to their representative by August 30, 1976. His Lordship further directed the respondent No. 3 to keep back such quantity of land not less than 4 cottahs per head as might be allotted to the remaining petitioners, who till then were not signatories to the said letter of authority, on proof of their signature and payment of proportionate compensation. On his satisfaction on those aspects the said respondent would deliver possession of their share of land to them accordingly.
13. In any event it was further directed the petitioners were to give possession of acquired lands by December 31, 1976 failing which the respondents were given leave to take possession of acquired lands without reference to any legal proceeding,
14. By order dated August 9, 1976 the respondent No. 3 was directed to accept signatures of two petitioners who were in jail if such signatures were authenticated by the Jail Authority.
15. The petitioners thereafter filed an application on August 26, 1976 for certain directions for delivery of possession to Shibapada Tripathy in respect of some other petitioners also whose signatures could not be verified in accordance with the directions under the order dated August 5, 1976 and for allotment of lands to persons other than the petitioners affected by the acquisition from lands kept for the remaining petitioners of the original rule in event of their failure within a specified time to pay proportionate costs at the rate of four cottahs for each person. The application was opposed by the respondents Nos. 1 to 4 as no account books were produced before the Special Land Acquisition Officer to establish the proportionate costs of acquisition paid by the petitioners, in view of the fact that the land was acquired for rehabilitation of 300 to 400 affected families.
16. By order dated November 12, 1976 the learned Judge directed the Collector to consider the account books and documents to establish the contributions made by each of the petitioners and, if he was so satisfied, to distribute land to the petitioners 'through their authorised representative proportionate to the contribution made by each of the petitioners, subject to a maximum quantity of 4 cottahs'. Further such allotments of land could be made jointly to the extent of each of the petitioners' land proportionate to his contribution subject to the maximum of 4 cottahs through the said representative.
17. The petitioners thereafter filed another application on Nov. 22, 1976 for modification of the order dated Nov. 12, 1976. It was stated therein that the original proposal of January 8, 1974 for allotment of 4 cottahs of land to each affected family of Mouza Debhog was superseded by letter of July 17, 1974 wherein the petitioners were directed to pay a sum of Rs. 3,01,699.75 p. for total area of 28-38 acres or 1700 cottahs, in terms of the order in Civil Rule No. 6665(W) of 1974. Further as the land was low lying area, the same would have to be developed and roads and tanks to be made which would cover 12/14 acres. The direction in subsequent order providing for maximum allotment of 4 cottahs to each petitioner was in conflict with earlier order and was unworkable, as costs of land acquired on that basis would only amount to Rupees 98,859.00 p. while the petitioners had to deposit Rs. 3.01,699.75 p. to avoid forcible dispossession and over Rs. 2 lacs would be lying with Government for no purpose.
18. On this application the learned Judge passed the following order onNovember 24, 1976.
'After hearing the learned Advocates for both the parties my order dated November 12, 1976 is modified to this extent that the Collector shall allot four cottahs of land to each of the petitioners provided he has paid the price for the same. The date for delivery of possession by the petitioner is extended till January 31, 1977.
It is stated by Mr. Dutta appearing for the Port Commissioners that as soon as the lands are distributed to the petitioners, the surplus money, if any, shall be refunded to the petitioners' Advocate Mr. Parimal Das, who is on record. The petitioners will be at liberty to make representations to the Government for allotment of more lands for the purpose of development.
This application is thus disposed of without any order as to costs.'
These orders of November 12 and 24, 1976 are the subject-matter of this appeal.
19. Mr. K. P. Sinha learned Advocate for the petitioners appellants contended that the order in C. R. No 6665 (W) of 1974 dated April 8, 1975 was passed on consent and the terms thereof could not be varied, except by consent of all parties, oven by the court. He has referred to the decision in Sailendra v. State of Orissa, : 1SCR72 which lays down the proposition that a judgment by consent or default is an effective estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. He further submitted that it is not open to a party to approbate and reprobate and take inconsistent position, when actins on a position taken earlier, the other party has acted upon the same culminating in an order of court. He submitted that the order of April 8, 1974 directed the petitioners to deposit Rs. 3,01,699.75 p. for acquisition of about 28 acres of land and when the amount has been duly deposited, the respondents should not be heard to contend that the petitioners are entitled to much less area at this stage.
20. Reliance was placed on the decision in Union of India v. Anglo Afgan Agencies AIR 1968 SC 718, wherein it was held that when a representation by Government is acted upon by a party, the Government is bound to carry out the promise. In this case also it was submitted, the petitioners have acted upon by the representations made by the Government and as such the Government is bound to give complete effect to the order passed by Court on basis of such representation.
21. Mr. Sinha also referred to the decision in Union of India v. Kishorilal, : 1SCR493 , and contended that the order of April 8, 1975 passed on consent concluded the arrangement between the parties in clear and unambiguous terms and it is not necessary nor permissible to look into any anterior fact. Accordingly it was not permissible for the learned Judge to fix the limit of allotment of land to 4 cot-tahs of land to each of the petitioners contrary to the provisions of the order on compromise as also his earlier order.
22. Anticipating a possible objection that a joint contract must be enforceable jointly if at all, Mr. Sinha submitted that the order of April 8, 1975 embodied a joint contract with petitioners on one hand and the respondents on the other. If some petitioners do not join for enforcement ofthe contract, such contract even in terms of the impugned orders has been made as it could be made, enforceable in part in respect of the petitioners who have moved for the purpose.
23. It is well known that when land to acquired under the provisions of Land Acquisition Act, 1894, there is no obligation in law on the Government or the acquiring authority to provide for rehabilitation of persons as may be affected by such acquisition though as a welfare State provision for rehabilitation is often made on humanitarian grounds without legal obligation. The same was the position here in the case of the acquisition of lands for Haidia project on behalf of the Calcutta Port Trust. As however representations and appeals were made to the persons in authority on behalf of such affected persons the Government in consultation with the Calcutta Port Trust arranged for acquisition of an area of approximately 30 acres for rehabilitation of persons affected by such acquisition. The letter of January 8, 1974 to the Collector, Midnapore which discloses the decision of the Government is to the following effect.
'The undersigned (Special Officer and Dy, Secretary Ex-officio to the Government of West Bengal; is directed to say that some representatives of the people of Mouza Debhog whose lands have been subjected to acquisition for the Haidia Dock Project saw the Minister-in-charge of this Department a few days back and expressed their readiness to co-operate with Government in the matter of delivering peaceful possession of land to Government provided the persons affected were given plots for rehabilitation from the land adjacent to the township area already acquired for the Calcutta Port Commissioners. During the discussion it was made clear to the representatives that subject to the approval of the Calcutta Port Commissioners the land mentioned by them may be available to the affected families on payment of cost of acquisition thereof by them and also on the distinct understanding that the same would not be developed by any agency before allotment.
Since the representatives agreed to receive allotment of plots for rehabilitation on the above condition and also gave their assurance to co-operate with Government in the matter of finalisation of acquisition proceedings including making over possession of the land, it is requested that arrangement may please be made to allot 4 cottahs plot without any development,to each of the affected families of mouza Debhog on prior payment of pro-rata acquisition costs thereof to the Calcutta Port Commissioners out of the 30 acres of land adjacent to the township area which is provisionally earmarked for the purpose by the Calcutta Port Commissioners. The above arrangement may, however, be given effect to after the prior approval of the Calcutta Port Commissioners has been obtained...'
24. Letter of July 17, 1974 by the Collector asked the Mulyan Committee to deposit Rs. 3,01,699.75 p. as cost of acquisition of 28.38 acres of land advising that after such allotment undeveloped lands would be handed over to it for allotment to the evicted families of mouza Debhog. Letter of August 14, 1974 also provided for allotment pf land as stipulated in above letter of January 8, 1974. The provision of allotment of lands to evicted families on payment of proportionate acquisition costs by them against allotment of 4 cottahs plot of undeveloped land to each evicted family was never altered or superseded and in fact in the writ petition of C. R. No. 6665(W) of 1974 the prayer was for issuance of writ directing the respondents to provide for respective accommodation of the petitioners on the basis of commitments made by the respondents concerned as disclosed in the aforesaid letters being the annexures in question to the said petition. The order on consent was passed for enforcement of the above commitment as was prayed for in the petition as otherwise there was no scope for a legal challenge on acquisition of land on the ground of absence of provisions for rehabilitation of families affected by acquisition. Such commitment for allotment of 4 cottah plot of undeveloped land to each evicted family should have been expressly provided in the order of April 8, 1975 for the absence whereof the learned Advocates must share the responsibility. Even so the absence of the provision for rehabilitation of affected families of Debhog in the said order does not extinguish or affect the basic arrangement founded on the Government's commitment in respect of such rehabilitation, which remained and continues to remain an implicit but effective condition of the order and the petitioners cannot be permitted to turn round and take advantage of the absence of the provision which would lead to a strange and absurd situation never contemplated by the parties when the petitioners approached the Court on November 5, 1974 and wouldresult in undue and unfair benefit and advantage to them at the cost of other displaced families.
25. In the subsequent petition ofmotion in the connected rule the petitioners referred to the Government Memo. of October 1, 1974 which required of the petitioners to form a co-operative society competent to act on behalf of the affected families of Mouza Debhog in the matter of allotment, of land for rehabilitation. The co-operative society was also formed, it is said, with provision for admission of members thereto who desired to be rehabilitated in Debhog as a result of acquisition so that it could not be said or urged that the land offered for rehabilitation was to be distributed only to the petitioners and not to other families of Mouza Debhog affected by the acquisition.
26. In the order of August 5, 1976 in the connected rule there is no mention for such allotment of land not exceeding 4 cottahs to each petitioner as per Government commitment. The position was soon realised and in subsequent order dated November 12, 1976, the Court made explicit what was all through an implicit and binding provision, well known to parties, of the order of April 8, 1975 directing that each petitioner would be allotted land subject to the maximum quantity of 4 cottahs for each affected family for rehabilitation, which was as we have seen, was the basis of the commitment made by Government when the land was offered for rehabilitation.
27. It is to be remembered that in the matter for enforcement of a commitment or representation made by Government or other authority acted upon by the claimant by writ proceedings, such commitment or representation is the basis and fundamental condition for grant of tine relief without which no relief will be available in writ proceedings. Such commitment or representation in material aspects is the primary and basic material fact in the cause of action for relief claimed and even if it is not expressly provided for in the order granting the relief, whether on consent or otherwise, it remains and continues to remain an implicit but effective condition of the relief as without it the relief granted will be one without jurisdiction in an application under Article 226 of the Constitution.
28. In the aforesaid circumstances we do not find that there was any scope for review or modification of the order of November 12, 1976 by substituting 'mini-mum quantity of four cottahs' for 'maximum quantity of four cottahs' as prayed for by the petitioners. We accordingly do not find any infirmity in the impugned orders an any ground warranting our interference. It may also be noted that the petitioners have been given the right in the impugned order to apply for allotment of more lands for purpose of development.
29. In the view we have taken, we do not consider it necessary to deal with the contentions raised by Mr. Sinha as indicated above. While there can be little dispute on the propositions of law laid down in the judgments cited by Mr. Sinha, they have no application to the facts of the case.
30. As we propose to dismiss the appeal, sustaining the orders in the connected rule, we feel that some directions in addition should be made as indicated below in partial modification of the relevant provisions of the orders under challenge in the appeal as indicated below. We direct, that the Calcutta Port Trust will on allotment and delivery of possession of lands to the petitioners and others in terms of the said orders refund the surplus money out of the costs of acquisition to the petitioner's Advocate on record Mr. Parimal Das or as they may require in that behalf, but such money as may be refunded will carry interest at the rate of 6% per annum for period from date of receipt by the Calcutta Port Trust to date of payment and will be payable by the Calcutta Port Trust. The Land Acquisition Officer, Haldia Project will in his turn deliver, as early as possible after such allotment and delivery of possession as aforesaid, the surplus lands back to the Calcutta Port Trust. The allotment and delivery of possession of lands will be made by the Special Land Acquisition Officer Haldia Project, without least delay as the petitioners approach him in manner indicated in the orders in the connected rule and date of possession for delivery of possession of the acquired lands for Haldia Project by the petitioners is extended to August 31, 1977.
31. Subject to the above modification the appeal is dismissed, without however any order as to costs in the circumstances. There will be no order on the applications in the rule which will be treated as disposed of.
32. Before we conclude, on behalf of the respondents it was stated that an application for recalling the order of April 8, 1975 passed by A. K. Mookerjee, J. ispending, We find that in fact such an application has been filed on May 7, 1976 but no step for its hearing for all these days has been taken on behalf of the State and others who are the applicants. According to Mr. Sinha this application was also disposed of by the learned Judge and no order was passed thereon which statement is denied by the other side. There is however no order on record in respect of this application and it is not necessary for us to express any opinion in respect thereof.
G.N. Ray, J.
33. I agree.