Calcutta High Court
Daulat Singh Surana & Ors vs State Of West Bengal & Ors on 28 July, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA 2025:CHC-OS:131
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/168/2007
IA NO: GA/1/2007 (OLD NO. GA/2495/2007)
DAULAT SINGH SURANA & ORS.
VS
STATE OF WEST BENGAL & ORS.
For the Plaintiffs : Mr. Debayan Bera, Adv.
Mr. Anirban Pramanick, Adv.
Mr. Punarbasu Nath, Adv.
Ms. Bhagyashree Dey, Adv .
For the State : Mr. Suman Kr. Dutt, Sr. Adv.
Mr. Paritosh Sinha, Adv.
Mr. Shourya Samanta, Adv.
Hearing concluded on : 14.07.2025
Judgment on : 28.07.2025
Sugato Majumdar, J.:
The instant suit was filed by the Plaintiffs praying for a decree for a sum of
Rs.9,30,97,394/- on account of damages for unauthorized occupation, mandatory
injunction along with other reliefs.
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Plaint Case:
The plaint case may be summarized as follow:
The Plaintiffs were the owners of a piece and parcel of the property
located at premises no. 4, Pretoria Street, Kolkata – 700071 containing
two storied buildings, outhouses and garden land, stretching over an area
of 38 cottah of land. The brick built structure along with adjoining land
situated on the western part of the entire land admeasured about 15 cottah
5 chittacks 14 sq. ft. The rest of the land measuring about 22 cottah was
garden area, located in the eastern part of the premises.
The premises in its entirety was requisitioned under the Defence of
India Act/Rules and was again requisitioned under the West Bengal
Premises Requisition & Control (Temporary) Provisions Act, 1947.
In terms of an Order dated 17/09/1985 passed in Matter No.872 of
1984 this Court held that no public purpose would be served for
requisition of the garden land measuring about 22 cottah 10 chittacks 31
sq. ft. and directed the State to deliver up possession of that part to the
Plaintiffs. So far as the rest of the land appertaining to the residential
building was concerned it was held that requisition could not continue for
indefinite period of time and the order of requisition would stand quashed
after six months if proceedings had not been initiated under the Land
Acquisition Act, 1894. But the Government did not initiate proceeding
within the stipulated period.
On 14/10/1985, order of derequisition of the garden land
measuring about 22 cottah 10 chittacks 31 sq. ft. was issued by the
Competent Authority, but did not deliver of possession on 16/10/1985.
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Order of derequisition of the structural part of the premises situated on
the western part was issued by the Competent Authority and the Plaintiffs
were directed to take possession thereof along with the garden part on
02/08/1986. But possession was not delivered.
On 31/05/1986, the Defendant no. 3 being the First Land Acquisition
Collector, Kolkata issued on order for requisition and acquisition of the
entire land under West Bengal Land (Requisition & Acquisition) Act, 1948.
The order passed by the Defendant no. 3 was quashed by this Court in
terms of the order dated 16/07/1987 in C.O. No. 8407(w) of 1987. Appeal
was preferred against the order in the Division Bench of this Court being
Appeal No.2224 of 1987 where the Division Bench annulled acquisition of
garden part of land measuring about 22 cottah 10 chittacks 31 sq. ft. and
allowed the Defendant no. 1 to go for acquisition of the structural part and
15 ft. of the land from the building part. A special leave petition was filed
before the Supreme Court of India which was dismissed.
On 02/05/1991, the Defendant delivered up vacant possession of the
area of the premises measuring about 22 cottah 10 chittacks 31 sq. ft. land
situated in the eastern portion of the premises no. 4, Pretoria Street,
Kolkata – 700071. The Plaintiffs thereafter separated the western part of
the premises measuring about 15 cottah 5 chittacks 14 sq. ft. by
constructing boundary wall. The Defendants no. 1 & 2 retained possession
of the western part of the premises comprising of structural part as
aforesaid. The Defendants did not initiate any proceeding for acquisition
of this structured part within nearby time but retained possession thereof.
The Plaintiff received rent compensation under West Bengal Act No. V of
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1947 for a period ending on 31/05/1986. For subsequent period, no
compensation was paid.
Process of acquisition of the western portion of the premises was
initiated by a notice dated 13/12/1994 under Section 4 of the Land
Acquisition Act, 1894. This was followed by notices under Section 6 of the
Act dated 23/06/1995 and notice dated 15/07/2003 under Section 9 as well
as notice dated 06/08/2003 under Section 11 of the Act. The Plaintiffs filed
objections on 18/12/2006. Previously, the Plaintiffs filed objection against
the notice under Section 9 of the Land Acquisition Act, 1894.
Acquisition of the western portion of the premises consisting of the
building part under the Land Acquisition Act, 1894 was challenged by the
Plaintiffs before the Single Bench of this High Court in W.P. No. 13522(w)
of 1995. Single Bench decided the writ petition in favour of the Plaintiffs by
setting aside the acquisition notice. The Division Bench in FMAT No. 06 of
1997 reversed the order passed by the Single Bench and upheld the validity
of the acquisition, in terms of the Order and Judgment dated 10/10/2002.
This order was challenged by the Plaintiffs in the Supreme Court of India in
Civil Appeal No. 6756 of 2003. During pendency of the Appeal, a valuer
was appointed from the panel of the Original Side of this High Court for
fixation of rental damages from 01/06/1986 to the end of July 2004.
Another valuer was later appointed. The Bench of the Supreme Court of
India directed the Defendant state to deposit a sum of Rs.25,00,000/- and
also directed the Defendant state to continue to pay Rs.3,00,000/- as rental
from 01/07/2006 till the disposal of the Appeal.
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CA No.6756 of 2003 was finally dismissed by the Supreme Court2025:CHC-OS:131
of
India upholding the order passed by the Division Bench. The final
Judgment was delivered by the Supreme Court of India on 13/11/2006.
It is contended by the Plaintiffs that they are entitled to damages/rental
for use and occupation of the premises by the Defendant no. 1 till vesting
under the Land Acquisition Act, 1894. It is contended that the Plaintiffs are
entitled to compensation and/or damages, as detailed below:
PARTICULARS
For the period from June Rs.9,88,24,967/-
1, 1986 to July 31, 2004
For the period from Rs. 70,92,427/-
August 1, 2004 till June,
30, 2007
Total Rs.10,59,17,394/-
Less amount received Rs.1,28,20,000/-
Net Due Rs.9,30,97,394/-
Accordingly, the instant suit has been instituted by the Plaintiffs praying for
decree for a sum of Rs.9,30,97,394/- or such other sum as may be of
damages/rental of the western part of the premises as aforesaid,
alternatively enquiry into damages/rental; declaration that the Defendants
are liable to pay to the Plaintiffs and the later are entitled to receive
occupational charges for the months of July 2007 onwards till vesting of the
property, mandatory injunction directing the Defendants to pay at a rate of
Rs.8,20,467/- per month from July 2007 until vesting, along with other
prayers.
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Written Statement:
The Defendants contested the suit by filing written statement.
The positive case made out by the Defendants are that the entire
premises no. 4, Pretoria Street, Kolkata-700071 along with outhouses and
vacant compound was requisitioned under Defence of India Rules and
possession of it was made over to the Commissioner of Police on
05/07/1943. The property was derequisitioned on 29/12/1947 and
possession was handed over to the owner. The property was re-requisitioned
under the Act V of 1947 and possession was made over to the Home (Police)
Department on 05/02/1959. Against this order of requisition a writ petition
was filed. The writ petition was disposed of in terms of an order of this Court
on 17/09/1985 observing that regarding the covered portion, requisition
should be continued for a further period of six month after which the
requisition would be quashed. However, if the Government intended to
continue to use the premises for a longer period, they were at liberty to take
up proceeding under the Land Acquisition Act, 1894. After expiry of six
months, they should deliver possession to the writ petitioners immediately
unless such proceedings are initiated within such time. An appeal was
preferred and the Appellate Court modified the order in part holding that the
judgment would not stand in the way of the authorities for acquisition of the
same for public purpose.
On 25/04/1986, the owners filed another writ petition challenging the
proceedings in respect of the said premises under West Bengal Act II of 1948
wherein an interim order restraining the Government from serving any order
without the leave of the Court was passed. On 25/07/1986 an order of
derequisition in terms of the order of this Court was passed and issued by the
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Government of West Bengal. On 30/07/1986, Defendant no. 3 passed orderintimating that the premises had been derequisitioned and possession would
be handed over to the owners on 02/08/1986. Again the land was re-
requisitioned under the West Bengal Act II of 1948 in terms of an order
dated 31/05/1986 with leave of the Court and the land was not handed over.
This order was challenged by the Plaintiffs. Single Bench of this Court
quashed the requisition. On appeal, being FMAT 2224 of 1987 the Division
Bench approved the acquisition and the vacant land upto the extent of 15 ft.
adjourning the building; the remaining part of the vacant land was to be
released. In compliance with the order of the Division Bench, vacant portion
of the land was handed over. In order to complete the proceeding of
acquisition of the residual area, notice under Section 5 (i) & 5 (iii) of the Act
II of 1948 was issued to the Plaintiffs inviting claims. The aforesaid notices
under Section 5 of the West Bengal Act II of 1948 was again challenged in a
writ proceeding. These notices were quashed and the Government was asked
to deliver back the possession. Another writ petition was filed by the
Plaintiffs praying for fixation of rent in respect of the vacant land. The writ
petition was allowed and the Government was directed to fix and pay rent
compensation within a period of four months from the date of
communication of the order dated 18/08/1993.
In compliance with the order passed in FMAT 2224 of 1987, a
notification under Section 4 of the Land Acquisition Act 1894 was published
on 21/12/1994 and a declaration under Section 6 of the Act was published on
07/08/1995. These notifications were again challenged by the Plaintiffs.
The matter went upto the Supreme Court of India, being Civil Appeal No.
2757 of 2006. On application filed by the Plaintiff, Government was directed
pay Rs.5,00,000/- as interim measures. Thereafter, on different dates, the
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Supreme Court of India directed the Defendants to pay various amounts andthe same was paid. It was made clear that the quantum of damages is
subjected to determination by any other forum. In terms of the Judgment
and Order dated 13/11/2006, Civil Appeal was dismissed upholding the
order of the Division Bench. In the circumstances, the suit property stood
vested from 14/08/1986. On 15/11/2007 compensation was determined as
Rs.52,92,521.53p and the Plaintiffs received the amount of compensation.
It is further contended that in terms of the Order of the Division Bench
in FMAT No. 2224 of 1987 the property in question, namely, the building
with 15 feet vacant land at the back of premises no. 4, Pretoria Street,
Kolkata-700071 stood vested with the Government of West Bengal from the
date of notification under Section 4 (1A) of the West Bengal (Requisition &
Acquisition) Act, 1948 dated 14th August, 1986. The Defendants contended
that in terms of various orders of the Supreme Court of India, admittedly the
Plaintiffs received a sum of Rs.1,28,20,000/. It was clarified by the Supreme
Court of India that such payments were on ad hoc basis subject to final
determination in the appeal. Apart from this amount this sum of
Rs.1,28,20,000/-, the Defendants paid a sum of Rs.95017/- on ad hoc basis
calculated at a rate of Rs.777/- being the amount of rent compensation
determined on 5th February, 1959 and for the period from the month of June
1986 to the month of August 1996 which had been received by the Plaintiffs’
Advocate on 21/08/1996.
It is also contended that since the premises was vested in favour of the
Defendants no rent or occupation charge is payable to the Plaintiffs from
14/08/1986 although there was a direction of the Supreme Court of India of
adjustment of the ad hoc payments against compensation for acquisition of
Page |92025:CHC-OS:131
the property. No such adjustment was made. Therefore, the Defendantsraised a counter-claim for recovery of (Rs.1,28,20,000/-
+Rs.95017)=Rs.1,29,15,017/- along with interest at a rate of 12 per cent per
annum. The Defendants, in terms of the counter-claim prayed for a decree
for a sum of Rs.1,29,15,017/- along with interest at a rate of 12% per annum
from the respective dates or payment till date, along with ancillary reliefs.
On the basis of rival pleadings, the following issues were framed:
1. Is the suit maintainable in its present form?
2. Are the claims of the parties barred by limitation?
3. Are the Defendant liable to pay to the Plaintiff
damages/rental compensation for use and occupation of the
western portion of premises no.4, Pretoria Street, Kolkata-
700071, comprising an area of 15 kottahs 5 chittacks and 14
sq. ft. of land with 2-storied building and outhouses standing
thereon from 01/06/1986 till 30/06/2007.
4. Are the parties entitled to have the relief sought for?
5. To what other reliefs are the parties are entitled.
Issues No. 1 – 5
Issue of maintainability of the suit in the instant case cannot be decided in
isolation since it is embedded in the substance of the fact. It was argued by the
Learned Counsel for the Plaintiff that compensation claimed in the suit is of the
nature of rental compensation for long occupation distinct from the compensation
payable under the Land Acquisition Act, 1894 under which compensation is payable
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on account of acquisition of the title. On the other hand, the Learned Counsel for the
Defendant that the nature of compensation prayed for by the Plaintiff comes within
scope and ambit of Section 23 of the Land Acquisition Act, 1894 (in short “the
“Act of 1894”) which can only be decided by the authority constituted under the Act
of 1894. Rival contentions demand further and detailed understanding of arguments
on points and counter points and appreciation of evidence, facts and applicable laws.
All the issues are taken up together for consideration and adjudication, therefore.
Neither of the Learned Counsels raised the issue of limitation or argued on
that. Therefore, this issue is not taken up for adjudication.
Argument for the Plaintiffs:
The first leg of argument of Mr. Bera, the Learned Counsel for the Plaintiff
was that the West Bengal Land (Requisition and Acquisition) Act, 1948 (in short the
Act II of 1948), was enacted by the State of West Bengal for requisition and speedy
acquisition of lands for certain purposes, mentioned in the Act. Initially the Act II of
1948 was valid upto 31/03/1951. Then the life of the Act was extended from time to
time. By the West Bengal Land (Requisition and Acquisition) Re-enacting Act XV of
1977, the Act II of 1948 was re-enacted in the year 1977. By the West Bengal Land
(Requisition and Acquisition) (Amendment Act IV of 1989), the life of the Act was re-
enacted and extended upto 31/01/1994. Thereafter the West Bengal Land
(Requisition and Acquisition) (Amendment) Act 1994 was published. By this re-
enacting Act, life of the Act II of 1948 was extended whereunder and whereby till
31/03/1997. By this Amendment Act, Section 3 of the Act II of 1948 was omitted,
and power of requisition was withdrawn w.e.f. 01/04/1994. But prior requisitions
were not affected.
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The West Bengal Land (Requisition & Acquisition) (Amendment) Act 1996was passed to amend the Act II of 1948, furthermore. Section 7A was inserted.
Under this amendment, the Collector should make award within 3 years from the
publication of notice, in case of failure of which the notice would lapse. Proviso
stated that where a notice had been published more than 2 years before
commencement of the Amendment Act of 1994, award should be made within 1 year.
In computing the period of three years or one year, as the case may be, period during
which any action or proceeding was taken in pursuance of the said notice and the
notice had been stayed by any order of a Court having jurisdiction, should be
excluded. This Amendment Act of 1996 came into effect on and from 07/04/ 1996.
By virtue of Section 3 of the Amendment Act 25 of 1996, i.e. under Section 7A of the
Act of 1948, the Collectors were required to declare the award within three years
from the date of notification under Section 4 (1a) of the Act and if such award had
not been made within the said period, the notice should lapse. In other words, the
proceeding for acquisition would lapse. Under Section 7A, in cases where the said
notice had been published more than two years before commencement of the West
Bengal Land (Requisition & Acquisition) (Amendment) Act 1994, an award should be
made within a period of one year from the date of commencement of that Act. This
means notices which were published two years before 31/03/1994, award must be
passed in respect of them on or before 31/03/1995, in case of failure of which the
process of requisition and acquisition would lapse.
It is further submitted that the Act II of 1948 was a temporary statute,
extended from time to time. After lapse of time, it was effaced from the statute book,
w.e.f. 01/04/1997.
Subsequently, the Government of West Bengal enacted the Land Acquisition
(West Bengal Amendment) Act VII of 1997, w.e.f. 01/04/1997. By the said West
P a g e | 122025:CHC-OS:131
Bengal Amendment Act of 1997, the provisions of the Land Acquisition Act, 1894 wasamended in its application to the State of West Bengal. Sections 9, 11A, 23 (1A) and
54 were introduced. Purpose of the amendment was to complete the requisition and
acquisition proceedings which were initiated under the Act II of 1948, but could not
be made complete by publishing award within 31/03/1997. First proviso to Section
(3A) of Section 9 which was inserted by the Amendment Act provided that notice
under sub-section (3A) shall be the date of reference for the purpose of determining
the value of land under the Act. The first proviso to sub-section (3B) of Section 9 of
the Amendment Act provided that the date of publication of the notice under sub-
section (1a) of the Section 4 of the Act II of 1948 shall be the date of reference for the
purpose of determining the value of land under the Act. Therefore, as per the said
proviso, the valuation of acquired lands would relate back to the date of notification
under Section 4 (1a) of the Act II of 1948 inspite of the fact that acquisition could not
be made complete and the notification lapsed by operation of Section 7A of the Act of
1996. Mr. Bera referred to Sabitri Devi & Ors. Vs. State of W.B [2002 (III)
CHN 108] where Single Bench of this Court decided that any proceeding under a
lapsed statute finds its natural death and could not survive after 31/03/1997; that a
notice under Section 4 (1a) of a lapsed statute cannot be saved or survived after death
of the statute; that vesting under Section 4 (1A) could not be saved or could not have
survived after 31/03/1997 and that vesting under Section 4(1A) of Act II of 1948
could not continue on lapse of notice under Section 4 (1A) of the lapsed Act II of
1948. It was further held that where notices under Section 9 (3A) or 9 (3B) of the
Land Acquisition Act 1894 (West Bengal Amendment) had not been issued whether
the notices under Section 4(1A) was surviving or not on 31/03/1997 by reason of
lapse of the Act II of 1948, not only the requisition but also the acquisition would
lapse irrespective of the principle of once vested cannot be divested. An appeal was
filed against the Judgment but the appeal was dismissed upholding the decision of
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the Single Bench, [2011 (3) CHN (CAC) 555]. Special Leave Petition filed before
the Supreme Court of India was also dismissed. Thus decision on the point that the
vesting under Section 4(1A) of the Act II of 1948 could not continue on lapsed notice
under Section 4(1A) of the Act II of 1948 reached finality.
In the context of the present case, Mr. Bera argued that the notification under
Section 4 (1A) of the West Bengal Land Requisition & Acquisition (Amendment) Act
1994 came into effect on 31/03/1994. Therefore, the notification under Act II of
1948 had been published more than two years back before commencement of the
Amendment Act 1994. Therefore, in view of proviso to Section 7A of the West Bengal
Land (Requisition & Acquisition) (Amendment) Act 1996 the award ought to have
been declared within one year from 31/03/1994, otherwise the notice would stand
lapsed. Period of stay should be excluded. In this case, without declaring award
under the Act II of 1948, the government switched over to the Land Acquisition Act
1894 to complete acquisition. Therefore, it is concluded by Mr. Bera notification
under the Act II of 1948 lapsed and the property was divested w.e.f. 16/08/1986.
The Plaintiff, therefore, is entitled to rent of the land in the form of compensation for
unauthorized occupation by the Government since then. It is further submitted that
damages/rental for use and occupation of the premises for the period stretching from
01/06/1986 to 10/09/2007 was not covered by the award declared under Section 11
of the Land Acquisition Act 1894. Therefore, the instant suit claiming compensation
for the said period is maintainable.
The second leg of argument of Mr. Bera was on quantum of compensation,
damages/rental for use and occupation of the premises from of 01/06/1986 to
10/09/2007.
Mr. Bera argued that notification dated 13/12/1994 under Section 4(1) of the
Land Acquisition Act 1894 for acquisition of the western part of the premises no. 4,
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Pretoria Street, Kolkat-700007, measuring an area of 0.2423 acres of land was
published in the Calcutta Gazette Extraordinary on 21/12/1994. The notification was
challenged and Single Bench of this Court set aside the said notification, by order
dated 02/12/1996. An appeal was preferred by the State. The Division Bench of this
Court set aside the order of the Single Bench in terms of the Judgment dated
10/10/2002. Thereafter, a Special Leave Petition (Civil) No. 6373 of 2003 was filed
before the Supreme Count of India. In course of hearing and during pendency of the
Special Leave Petition, the Supreme Court of India considered the issue of rental
compensation, asked and called for valuation report and directed the State from time
to time, in terms of various interim orders, to pay rental compensation. The State
paid, on total, a sum of Rs.1,28,20,000/- to the Plaintiffs, towards rental/damages
for use and occupation of the premises for the period from 01/06/1986 to
13/11/2006 when the Special Leave Petition was disposed of.
After disposal of the Special Leave Petition, the suit was proceeded with.
Plaintiff no. 1 deposed as P.W. 1 and one Valuer Mr. Prabir Kumar Chaudhuri
deposed as P.W. 2, adduced in evidence his valuation report, which was marked as
Ext. L. The valuation report being Ext. L assessed compensation upto 30/06/2007 to
the tune of Rs.10,59,00, 000/-. The Defendants adduced oral evidence of one Sandip
Kumar Deb who was examined as D.W.1. He was a valuer and challenged the
valuation report of P.W. 2. However, in cross-examination D.W. 1, in his evidence
also admitted that valuation of structure during the relevant period in the year 2007
at Pretoria Street would be Rs.5,500/- per square feet. In course of cross-
examination, D.W. 1 admitted that valuation assessed by P.W. 2 at a rate of
Rs.6000/- per square feet was correct. However, the said D.W. 1 did not submit any
valuation report. It was submitted by Mr. Bera that the valuation report, being Ext. L,
therefore, should be accepted as piece of evidence regarding quantification of
P a g e | 15
damages and/or rental for use and occupation of the premises from 01/06/19862025:CHC-OS:131
to
31/07/2007.
It is further submitted that in the plaint damages have been claimed upto
30/06/2007. But the Plaintiffs are entitled to get damages till 10/09/2007. S0, the
Plaintiffs are further entitled to get damages from 01/07/2007 to 10/09/2007 at the
same rate, as assessed by the valuer. Therefore, according to Mr. Bera, the Plaintiffs
are entitled to get compensation, in total, of Rs.9,35,07,542/-.
The next limb of argument of Mr. Bera was that compensation payable under
the Act of 1984 was for extinction of title and on account of acquiring title of the land
in question by the Government. But the present claim is on account of long
occupation by the Government and the claim is basically demand of rent. The Act of
1894 left no scope for deciding or quantification of the said component. Only civil
court can decide on the issue. Therefore, the instant suit inspite of receiving of
compensation under the Act of 1894, is maintainable.
Argument of the Defendant:
The first leg of argument of Mr. Dutta was that the property stood vested in
the State Government on and from 14/08/1986. Thus the Plaintiffs are not entitled
to any rentals / damages from the date of vesting. The Plaintiffs had admitted that
they have received rent compensation for the period upto 31/05/1986. Furthermore
on or about 15/11/2007. Compensation for acquisition of the said property was
determined by the Land Acquisition Collector, Kolkata at Rs.5,29,2521.53p. The
amount was duly received and accepted by the Plaintiffs. The Plaintiffs did not
challenge the award of the Land Acquisition Collector, Kolkata.
Admittedly, on 03/12/1994, notice was issued by the Defendants under
Section 4 of the Land Acquisition Act, 1894 on 03/06/1995. When the Single Bench
P a g e | 16of this Court in W.P. no.13522 (w) of 1995 allowed the writ petition quashing 2025:CHC-OS:131
thenotification, the State preferred appeal in the Division Bench when the order of the
Single Bench was set aside in FMAT no. 6 of 1997, in terms of the Judgment dated
10/10/2002.
Special Leave Petition was filed in the Supreme Court of India against the
Order passed by the Division Bench of this Court. The Supreme Court of India in C.A.
No. 6756 of 2003 upheld the Judgment of the Division Bench in terms of the
Judgment dated 13/11/2006 giving liberty to the Plaintiffs to claim their dues, if any,
before the appropriate forum. It is submitted by Mr. Dutta that in view of the order
passed by the Supreme Court of India, there cannot be a dispute that the property
stood vested in the government w.e.f 16/08/1986.
The second leg of argument of Mr. Dutta was that the Plaintiffs cannot claim
any rental/damages by filing a civil suit. The appropriate remedy lies under the Land
Acquisition Act 1894. In the event the Plaintiffs are aggrieved by the Award dated
15/11/2007, passed by the Land Acquisition Collector, they ought to have challenged
under Section 18 of the Land Acquisition Act 1894. Even if the Plaintiffs are
aggrieved that they were not awarded compensation for the period prior to
01/03/1995, the same should be challenged by the Plaintiffs in terms of the Land
Acquisition Act 1894. In fact after receiving award, which has been calculated from
03/01/1995, the Plaintiff cannot have any claim for the period after 03/01/1995 and
any such claim is baseless.
It is further argued that in the Land Acquisition Act 1894 is a complete code
and civil court have no jurisdiction in going into the matter provided under the Act.
Mr. Dutta relied upon:
State of Bihar v. Dhirendra Kumar, [(1995) 4 SCC 229]
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Laxmi Chand v. Gram Panchayat, [(1996) 7 SCC 218]Bangalore Development Authority v. Brijesh Reddy, [(2013) 3 SCC 66]
According to him, the suit is, therefore, not maintainable.
The third limb of argument of Mr. Dutta was that evidence of P.W. 2 on
valuation is not acceptable. He had not visited the property and had no access to the
property. He had relied on reports of other persons. His report was not based on his
personal knowledge or inspection. In fact, D.W. 1 completely demolished the
Valuation Report (Ext. L) prepared by P.W. 2. The Plaintiffs have also failed to prove
the quantification of the rentals/damages, as worked out by them.
The fourth limb of argument was that in terms of various interim Orders
passed by the Supreme Court of India, the Defendants paid various amounts as
admitted by the Plaintiffs. The Supreme Court of India upheld the order of vesting
and also directed the interim payments made by the Defendants to the Plaintiffs
should be adjusted while making payment of compensation under the award dated
15/11/2007. Adjustment was not made and vesting of the land w.e.f. 16/08/1986 was
confirmed. Therefore, according to Mr. Dutta, the Plaintiffs are liable to refund the
interim payment and, therefore, the counter-claim should be allowed.
Decision:
Certain facts are admitted and more or less adjudicated upon.
In the year 1943, the property at premises no. 4, Pretoria Street, Kolkata –
700071 was requisitioned by the Government of West Bengal under the Defence of
India Rules. The Government started using this land and as well as the ground floor
of two storied building. On 28/12/1947, the land was derequisitioned by the
Government. Again by an Order dated 13/01/1959, the property was requisitioned
P a g e | 182025:CHC-OS:131
under Section 3(1) of the West Bengal Premises Requisition and Control (TemporaryProvisions) Act, 1947.
In the year 1982, the Plaintiffs purchased the land. After purchasing the land,
the Plaintiffs filed a writ petition in this Court, challenging the order of requisition
dated 30th January, 1959. After adjudication by a Single Judge, the matter went to
the Division Bench. Division Bench disposed of the matter in terms of the Judgment
and Order dated 12th December, 1985. The result of adjudication was that the
requisition remained valid for six months from 12/12/1985 and the requisition in
respect of the garden was put to an end with a direction to hand over the possession
thereof to the Plaintiffs and liberty to acquire at the same time.
Apprehending acquisition of the said land, under the provisions of the West
Bengal Land (Requisition & Acquisition) Act, 1948, the Plaintiffs filed the second
Writ Petition C.R. No. 5025(w) of 1986.
The Government once again requisitioned the said land under Section 3 (1) of
the West Bengal Act II of 1948 by making an order dated 31/05/1986. The
Government continued to use the requisition land measuring more or less .2542
hector for the same purpose as before. Thereafter, for acquiring the land property,
the Government published a notice dated 14/08/1986, on 16/08/1986, in the Official
Gazette under Section 4(1a) of the Act of 1948.
The Plaintiffs challenged the order and notice under Section 3(1) and Section
4(1a) of the Act II of 1948 in the third unit petition being Civil Rule No. 8407(w) of
1987. The Single Bench set aside the order and the notice. An appeal was preferred
(FMAT 2224 of 1987) which was disposed of by the Division Bench on 07/09/1990,
setting aside the order passed by the Single Bench. The order of acquisition of vacant
land at the back of the building beyond fifteen feet at the back side was annulled.
P a g e | 19
Consequently and pursuant to the Order, on 12th June, 1991, physical possession2025:CHC-OS:131
ofthe land and beyond fifteen feet of existing building was delivered back by the
Government to the Plaintiffs. Thereupon a notice under Section 5 (3) of the West
Bengal Act II of 1948 bearing dated 14/09/1992 was given by the First Land
Acquisition Collector, inviting the Plaintiffs to make their respective claims for
compensation for the said land already acquired by the Government in terms of the
notice under Section 4 (1a) of the Act of 1948 dated 14/08/1986.
By Order passed in W.P. No. 3799 of 1992, the requisition Order dated
30/04/1959 was set aside together with a direction to the State to deliver vacant
possession of the land and the building to the Plaintiffs within six months. By a
subsequent Order dated 08/07/1994 passed in the W.P. No. 3798 of 1992 the
previous Order dated 18/08/1993 was modified to the extent that the order would
not prevent the Government from issuing fresh notice in terms of the order of this
Court within a period of six months.
On 21/12/1994, Government published a notification dated 13/12/1994 under
Section 4 of the Land Acquisition Act, 1894 purporting to acquire the land or
property for public purpose. After hearing the Plaintiffs, a declaration under Section
6 of the Act I of 1894 was made by the Competent Authority on 23rd June, 1995. It
was published in the newspaper on 6th and 7th July, 1995 and in the Official Gazette
on 07/08/1995.
In the conspectus of facts, the sixth writ petition was filed on 02/08/1995 by
the Plaintiffs. This writ petition was filed, initially challenging the notification dated
13th December, 1994 published under Section 4 of the Land Acquisition Act, 1894
and subsequently, challenging the declaration under Section 6 of the Act of 1894 was
added. The Single Bench, in C.O. No. 13522(w) of 1995, set aside notice under
Section 4 dated 13/12/1994 and the declaration under Section 6 dated 23/06/1995,
P a g e | 20
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both under the Land Acquisition Act, 1894, in terms of the Order dated 02/12/1996.
The State preferred an appeal being FMAT No. 06 of 1997. The Division Bench
disposed of the appeal by Order dated 10/10/2002 setting aside the order passed by
the Single Bench. The Division Bench noted that the building and vacant land at the
back of the building to the extent of fifteen feet had already been vested absolutely in
the State Government on and from 16th August, 1986. A Division Bench while
passing the order noted and observed that the Government possession of land never
became illegal or unauthorized by operation of law. The Division Bench upheld the
notification. It was also in the order of the Division Bench that there was an
unbroken and continuous valid requisition which had been ultimately merged in the
acquisition notice dated 14th August, 1986. Therefore, whatever rent compensation
or damages the Plaintiffs were entitled in law they were always and they were at
liberty to claim the same from the Government in accordance with law. Thus, liberty
was given to the Plaintiffs to claim their dues before the appropriate forum in
accordance with law.
A Special Leave Petition was preferred before the Supreme Court of India
against the order passed by the Division Bench. The Supreme Court of India in
course of hearing of the Special Leave Petition which was numbered as Civil Appeal
No. 6756 of 2003 allowed payment of rent compensation to the present Plaintiff
from time to time. Valuers were appointed and valuations were made. The
Defendants/State paid various amounts so directed, to the Plaintiffs. In terms of
final Judgment dated 13/11/2006, the Supreme Court of India dismissed the Special
Leave Petition upholding the Order passed by the Division Bench dated 10/10/2002.
It is clear from the conspectus of facts, as stated above, that the State did not
issue any notification within six months under the Act II of 1948, as contemplated in
the Order dated 08/07/1994. Government did not pursue acquisition of land under
P a g e | 21
1948 Act. Once the time frame of six months lapsed, there was no acquisition2025:CHC-OS:131
or
retaining of land under the 1948 Act. Subsequently, notifications were issued under
Sections 4 and 6 of the Act of 1894 and acquisition of land under the said Act of 1894
was upheld by the Supreme Court of India. In view of that there cannot be and is not
any living dispute of the legality and validity of acquisition. In view of this the whole
gamut of argument made by Mr. Bera on applicability or non-applicability or
contextuality of the 1948 Act becomes irrelevant. In fact it was noted in the
Judgment of the Supreme Court of India dated 13/11/2006 –
“It was asserted by the appellant that having abandoned the
earlier proceedings initiated under the West Bengal Act 2 of 1948,
as was evident from the fact of publication of the impugned
Notification under Section 4 read with Section 4 of the Act No. I of
1894, the State Government had lost the right to retain the
possession of the land.”
The Government abandoned any proceeding or did not pursue any proceeding of
acquisition of land under 1948 Act. Therefore, the argument made by Mr. Bera
cannot be accepted.
Division Bench clearly held which was upheld by the Supreme Court of India
that possession of the State was never illegal. Therefore, the State is not liable to pay
any mesne profit or other damages for illegal or unauthorized occupation of the suit
premises. Claim of the Plaintiffs is basically rent compensation. That had been
allowed by the Supreme Court of India from time to time subject to adjustment to be
made at the time of final payment of rent compensation. However, the adjustment
was not made at the time of payment of compensation to the Plaintiffs.
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2025:CHC-OS:131
The foundation of Mr. Bera’s argument was that compensation payable under
the Act of 1894 are different from rent compensation claimed by the Plaintiffs; a
distinction was attempted to make between liability to pay rent and other money on
account of long and continuous possession of the suit premises by the State and
compensation payable under the Act of 1894 which is basically a compensation for
snapping of title or in other words, extinction of title of Plaintiffs. Mr. Bera tried to
impress on the point that two claims are different and rent compensation cannot be
decided in the same breathe with the compensation payable under the Act of 1894 or
can be adjudicated by the authority established under the Act of 1894. To
understand this finesse of argument it is necessary to look into the West Bengal
Amendment of Section 23 of the Land Acquisition Act, 1894. Necessary for present
context may be quoted here:-
“13. WEST BENGAL-In section 23 in sub-section (1),
(1) (i) in clause “fifthly” the word “and” at the end shall be omitted and
deemed always to have been omitted:
(ii) in clause “sixthly” for the words “possession of the land, and shall be
deemed always to have been substituted;
(iii) after clause “sixthly” following clause shall be deemed always to
have been inserted, namely,-
“seventhly the loss of earning if any, caused to the person interested in
consequence of the acquisition of the land, where earning was derived
directly from such land.”;
In sub-section (IA) of section 23 of the principal Act, the following
proviso shall be added:
P a g e | 23
“Provided that in respect of the acquisition of the land referred to in sub- 2025:CHC-OS:131
section (3A), and sub-section (3B), of section 9, in addition to the market
value of the land, the court shall in every case award an amount
calculated at the rate twelve per centum per annum on such market
value for the period commencing on and from the date of taking
possession of the land to the land to the date of the award of the
Collector.”.-West Bengal Act VII of 1997 (2-5-1997)”
The West Bengal Amendment provided for loss of earning and other components of
compensation for the period commencing on and from the date of taking possession
of the land to the date of award of the Collector. West Bengal amendment of Section
23 widened the ambit of compensation. Unauthorized or illegal occupation of the
suit premises by the State could have opened space for the Plaintiffs praying for
appropriate compensation for such illegal occupation. Unless it was so, the Plaintiffs
remedy lies under the Act of 1894. In this case the possession of the State has been
adjudicated as legal and authorized. The Act of 1894 as amended in West Bengal
provided scope for claiming compensation. Rent is more compensatory for prolonged
legal occupation by the State which can be considered under the Land Acquisition
Act, 1894. Therefore, any further claim of the Plaintiffs, as prayed for, is nothing but
one of the components of compensation contemplated and envisaged in Section 23 or
other parts of Act of 1894. Once the Plaintiff is dissatisfied or aggrieved on payment
of compensation, the only authority where he can approach is a Land Acquisition
Court constituted under the Act of 1894. In case, the occupation of the Government
had been illegal or unauthorized civil court could have entertained suit for
compensation which might be prayed for such illegal occupation. This is not a case.
Therefore, the Civil Court has no jurisdiction to allow compensation to the Plaintiffs,
as prayed for. Accordingly, an inevitable conclusion is that the plaint case is not
maintainable as this Court has no jurisdiction to allow such compensation.
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Counter-claim raised by the State is also the amount paid by the State as rent
compensation. Since the amount already paid had not been adjusted as directed by
the Supreme Court of India the same is claimed to be refunded in this suit. It has
already been decided and concluded that this Court has no jurisdiction to consider
claims on account of rent compensation and other compensation related to
acquisition of land on the same logic and reason the counter-claim raised by the
State cannot be considered by this Court having no jurisdiction to do that.
In nutshell, for reasons stated above, both the plaint case and the counter
claim are dismissed and the suit is disposed of accordingly.
(Sugato Majumdar, J.)
