Calcutta High Court (Appellete Side)
Smt. Ranu Dutta & Ors vs The State Of West Bengal & Ors on 28 April, 2026
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 20562 of 2025
Smt. Ranu Dutta & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Partha Chakraborty
Mr. Rishabh Dutta Gupta
For the State : Mr. Tapan Kr. Mukherjee, Sr. Adv.
Ms. Tuli Sinha .... Advocates
For the KMDA : Mr. Satyajit Talukder
Mr. Arindam Chatterjee
.........advocates
Amicus Curiae : Mr. Debayan Bera, Sr. Adv.
Reserved on : 25.03.2026
Judgment on : 28.04.2026
Hiranmay Bhattacharyya, J.:-
1. Petitioners have prayed for issuance of a writ in the nature of mandamus to
command the respondents to withdraw, cancel, quash and recall the
notification published in connection with LA Case No. LA-II/1/2 dated
Page 1 of 39
1993-94 and for a direction upon the respondents and their men and agents
to release the property of the petitioner from the scope and ambit of the said
acquisition proceeding.
2. Petitioners claimed that their predecessor-in-interest namely Pramatha
Ranjan Dutta since deceased, purchased a piece and parcel of land
measuring 3 cottahs, 2 chittaks and 5 square feet along with benefit of
easmentary right comprising of CS Dag no. 2454/2759, JL No. 13 within
Mouza Kasba under Police Station-Kasba in the District of 24 Parganas
(South) by virtue of a deed of conveyance dated April 30, 1968. Petitioners
further state that their predecessor-in-interest mutated his name in the
records of the Kolkata Municipal Corporation and was paying municipal
rates and taxes on a regular basis.
3. The petitioners claimed that the property purchased by their predecessor-in-
interest was fully covered by structure and upon the death of their
predecessor-in-interest, they became the joint owners of the said property by
virtue of inheritance. Petitioners’ names have been mutated in the records of
the Kolkata Municipal Corporation.
4. Petitioners further state that for the purpose of implementation of the
township project by the Kolkata Metropolitan Development Authority, a
huge area within Mouza- Kasba was proposed to be acquired for the purpose
of the aforesaid township project and the land situated adjacent to the land
of their predecessor-in-interest were also placed under requisition for the
purpose of acquisition for implementation of the aforesaid project.
Petitioners through their learned advocate’s letter dated March 17, 2022
requested the respondent authorities to conduct a joint demarcation
program so as to get a clear picture with regard to acquisition of land
concerning CS Dag No. 2454/2759 so as to enable the petitioners to enjoy
their unfettered right of ownership over the entire property.
5. Alleging inaction on the part of the respondent authorities, petitioners filed a
writ petition being WPA 8357 of 2022. Pursuant to an order passed by the
Page 2 of 39
co-ordinate bench on 03.01.2023, the State respondents submitted a report
in the form of an affidavit disclosing certain documents in support of their
claim that the entire plot of land was acquired in two phases. Thereafter the
petitioners sought to withdraw the writ petition and the writ petition was
dismissed for non-prosecution by an order dated 19th July, 2023. Pursuant
to the liberty granted by the co-ordinate bench, the instant writ petition has
been filed.
6. The petitioners allege that the order under Section 3 of the West Bengal
Land (Requisition and Acquisition) Act, 1948 (for short “the 1948 Act”) was
not served upon their predecessor-in-interest. The petitioners claim that
since the order under Section 3(1) of the 1948 Act has not been served upon
their predecessor-in-interest, all subsequent proceedings are non-est in the
eyes of law.
7. A status report has been filed by the Special Land Acquisition Officer 24
Parganas (South) dated October 13, 2025. It has been specifically stated in
the said status report that RS Plot no. 2454/2759 having total area
measuring about 0.88 acre of Mouza Kasba, JL No. 13, appertaining to RS
Khatian No. 191 was totally acquired by virtue of two land acquisition cases.
0.82 acres of land was acquired vide LA II/105 of 1976-77 for East Calcutta
Area Development (for short “ECAD”) Project of the Calcutta Metropolitan
Development Authority (for short “CMDA”) now known as Kolkata
Metropolitan Development Authority (for short “KMDA”) and 0.06 acres of
land in the said plot was acquired vide LA II/2 of 1993-94 for construction
of internal feeder road of ECAD project of KMDA in Mouza Kasba Sheet No.
7. Report further states that LA II/2 of 1993-94 was initiated for the
purpose of taking over possession of the structural portion measuring 0.06
acres of the said plot which was found affected by the road alignment and
possession was handed over to CMDA i.e., Requiring Body on 31.03.1994.
Notice under Section 4(1a) of the 1948 Act with respect to 0.06 acres of the
plot in question was published in Calcutta Gazette on 13.10.1995.
Thereafter, the acquisition proceeding was carried forward by issuing a
Page 3 of 39
notice under Section 9(3A) of the Land Acquisition (West Bengal
Amendment) Act 1997 in favour of Nagendranath Das who was the recorded
tenant of RS Khatian No. 191 and an award was declared in favour of the
said Nagendranath Das on 17.01.2002. Report further reveals that since the
said award amount could not be verified, the same was deposited before the
Court of the learned Special Judge at Alipore. It was specifically stated in
the said status report that in the land records, the plot in question was
recorded in the name of Nagendranath Das during the proceeding of the said
land acquisition case. It was further stated in the said report that 0.82 acres
of land of the plot in question was requisitioned under Section 3(1) of the
1948 Act vide LA-II/105 of 1976-77 and possession of the said area
excepting the covered structure was taken over and handed over to the
CMDA on 15.05.1978. Notice under Section 4(1a) of the 1948 Act was
published in the Calcutta Gazette Extra Ordinary dated November 21, 1983
and award was declared in respect of 0.82 acres of land on 21.08.1989 and
Pramatha Ranjan Dutta i.e., predecessor-in-interest of the petitioners was
one of the declared awardees against the said plot vide award Serial No. 30.
Report reflects that the awarded amount was deposited before the learned
Special LA Judge at Alipore by a cheque dated 29.11.2006.
8. Mr. Chakraborty, learned advocate appearing for the petitioner contended
that the predecessor-in-interest of the petitioners was in possession of the
plot in question since the date of purchase i.e., April 30, 1968 and after the
death of their predecessor-in-interest, they are in possession of the plot in
question. He further contended that the order of requisition passed under
the 1948 Act was not served upon their predecessor-in-interest. He, thus,
contended that the order of requisition was non-est in the eyes of law for
non-compliance with the mandatory requirement of service as laid down
under Section 3(2) of the 1948 Act read with Rule 3 of the 1948 Rules. In
support of such contention, he placed reliance upon the decisions in the
case of Tarak Nath Sen and ors. vs. First Land Acquisition Collector1;
Page 4 of 39
Syed Fateyab Ali Meerza vs. Union of India and ors2 and M/s. Bhinasar
Finance (P) Ltd. vs. State of West Bengal and Ors3.
9. Mr. Chakraborty further contended that since the order of requisition is
non-est in the eyes of law, all subsequent steps taken for acquisition of the
land in question should be declared to be void in the eyes of law and in
support of such contention he placed reliance upon a decision of the Hon’ble
Division Bench in the case of Sailendra Nath Pal and Ors. vs. State of
West Bengal and Ors.4.
10. Mr. Chakraborty contended that in view of the 44th Constitutional
Amendment, the right to property is a constitutional as well as a human
right and in support of such contention he placed reliance upon the decision
of the Hon’ble Supreme Court in the case of Kolkata Municipal
Corporation and another vs. Bimal Kumar Shah and Ors.5. Mr.
Chakraborty placed reliance upon the decision of the Hon’ble Supreme
Court in the case of Ultra-Tech Cement Ltd. v. Mast Ram,6 in support of
his contention that a fair and reasonable compensation is the sine qua non
for any acquisition process.
11. Mr. Chakraborty concluded by submitting that since there was a breach of
the mandatory provision of the requirement of the service of the order
passed under Section 3(1) of the 1948 Act, the entire acquisition proceeding
is liable to be set aside and quashed.
12. Mr. Talukdar learned advocate appearing for the KMDA seriously disputed
the contention of Mr. Chakraborty. He contended that after purchase of the
plot in question in the year 1968 neither Pramatha Nath Dutta nor his
successor-in-interest i.e., the petitioners herein recorded their names in the
2 (1981) 1 CLJ 214
3 (1992) 1 CLJ 222
4 (2010) 2 CHN (Cal) 315
5 (2024) 10 SCC 533
6 (2025) 1 SCC 798
Page 5 of 39
record of rights. He further contended that the predecessor-in-interest of the
petitioner was well aware of the acquisition proceeding but did not take any
steps to challenge the same at the relevant point of time. Mr. Talukdar
contended that the instant writ petition is liable to be dismissed only on the
ground of inordinate delay and laches on the part of the petitioners in
approaching this Court. In support of such contention he placed reliance
upon the decisions of the Hon’ble Supreme Court in the case of Star Wire
(India) Ltd. vs. State of Haryana and Ors.7 ; U.P. Jal Nigam vs.
Jaswant Singh8; Parag Construction vs. State of Maharashtra9;
Sawaran Lata v. State of Haryana10; Leelawanti v. State of
Haryana,11 and Mahavir v. Union of India12.
13. Mr. Talukdar contended that service of an order of requisition issued under
Section 3(1) of the 1948 Act is not a mandatory requirement, rather the
provisions laid down under Section 3(2) of the 1948 Act is directory in
nature. He contended that whether a provision is mandatory or directory
would depend upon the intent of the legislature and not upon the language
for which the intent is clothed. In support of such contention he placed
reliance upon the decisions of the Hon’ble Supreme Court in the case of May
George v. Special Tahsildar13; Sharif-ud-Din v. Abdul Gani Lone14 and
Balwant Singh v. Anand Kumar Sharma15. For the same proposition he
7 (1996) 11 SCC 698
8 (2006) 11 SCC 464
9 (2008) 16 SCC 198
10 (2010) 4 SCC 532
11 (2012) 1 SCC 66
12 (2018) 3 SCC 588
13 (2010) 13 SCC 98
14 (1980) 1 SCC 403
15 (2003) 3 SCC 433
Page 6 of 39
also referred to a decision of the Hon’ble Mysore High Court in the case of
Hunuikeri v. Asst. Commissioner, Dharwar Division16.
14. Mr. Talukdar contended that the decision of the Hon’ble Division Bench in
the case of Sailendra Nath Pal (supra)17 should be held to be per incuriam
as the same was delivered without taking into consideration the proposition
of law laid down by the Hon’ble Supreme Court in Sharif-ud-Din (supra)18;
Balwant Singh (supra)19 and May George (supra)20. He contended that a
decision can be said to be given per incuriam when a High Court has acted
in ignorance of a decision of the Hon’ble Supreme Court. In support of such
contention he placed reliance upon a decision of the Hon’ble Supreme Court
in the case of Punjab Land Development and Reclamation Corpn. Ltd. v.
Labour Court21.
15. Mr. Talukdar contended that the principles of natural justice cannot be
imported as a condition precedent to the exercise of power under Section 3
of the 1948 Act and in support of such contention he placed reliance upon a
decision of a co-ordinate bench in the case of Saktipada Mandal v.
Collector, District Hooghly and others22.
16. Mr. Talukdar contended that the order of requisition is required to be served
only upon the parties whose names have been recorded as
owners/occupiers in the revenue records and in support of such contention
he placed reliance upon a decision of the Hon’ble Supreme Court in the case
of S. Palani Velayutham v. District Collector23. He contended that since
16 AIR 1962 MYS 169.
17(2010) 2 CHN (Cal) 315
18 (1980) 1 SCC 403
19 (2003) 3 SCC 433
20 (2010) 13 SCC 98
21 (1990) 3 SCC 682
22 AIR 1976 Cal 282
23 (2009) 10 SCC 664
Page 7 of 39
the name of the predecessor-in-interest of the petitioners or the petitioners
were not recorded in the record of rights at the time of initiation of the
requisition and acquisition proceedings, the authorities were not obliged to
serve the order under Section 3(1) of the 1948 Act upon the predecessor-in-
interest of the petitioner.
17. Mr. Talukdar contended that a statute must be read as a whole to extract its
meaning and intendment correctly and in support of such contention he
placed reliance upon a decision of the Hon’ble Supreme Court in the case of
Vijayawada Municipal Council v. A.P. SEB24. He further contended that
for the purpose of construction of a section in a statute, it is to be read in its
entirety in order to give a purposive and meaningful construction. In
support of such contention he placed reliance upon a decision of the Hon’ble
Supreme Court in the case of State of A.P. v. Mohd. Hussain25. He
contended that after taking possession of the land and upon passing of the
award, the Government became the absolute owner of the property in
question free from all incumbrances. He further contended that the
petitioners cannot claim any title in respect of the property which stood
vested to the Government free from all incumbrances, merely by placing
reliance upon certain documents in support of their possession in the
property in question. In support of such contention he placed reliance upon
the decision of the Hon’ble Supreme Court in the case of State of Punjab v.
Sadhu Ram26. Mr. Talukdar concluded by submitting that the writ petition
is liable to be dismissed in limine.
18. Mr. Mukherjee learned Additional Government Pleader submitted that the
possession of the land has been taken at least 50 years back and the instant
writ petition is liable only on the ground of unreasonable delay in
approaching the Court. In support of such contention he placed reliance
upon a decision of the Hon’ble Supreme Court in the case of State of M.P.
24 (1976) 4 SCC 548
25 (2014) 1 SCC 258
26 (1997) 9 SCC 544
Page 8 of 39
v. Bhailal Bhai27; State of J&K v. R.K. Zalpuri28. Mr. Mukherjee
contended that the requirement of service of the order under Section 3(1) of
the 1948 Act is not mandatory. As to whether a provision can be said to be
mandatory or directory, Mr. Mukherjee placed reliance upon a decision of
the Hon’ble Supreme Court in the case of May George (supra)29. He
contended that the decision of the Hon’ble Division Bench in the case of
Sailendra Nath Pal (supra)30 should be held to be per incuriam as the
same was delivered without taking into consideration the well settled
proposition of law laid down by the Hon’ble Supreme Court. Mr. Mukherjee
contended that, 1948 Act has two parts- one is requisition and the other
acquisition. He contended that when the notification under Section 4(1a) of
the 1948 Act has been published, it should be presumed that the order
under Section 3(1) has been duly served.
19. Considering the issues involved in this writ petition, this Court requested
Mr. Debayan Bera, learned advocate to assist this Court as amicus curiae.
Mr. Bera learned advocate contended that sub-section (1) of Section 3 of the
1948 Act consists of two parts namely-
(i) Order in writing for requisition and;
(ii) To make further order in connection with the requisitioning. Sub-
section 2 of Section 3 provides that an order under sub-section (1)
shall be served in the prescribed manner on the owner of the land
and upon the tenant.
20. By referring to Rule 3 of the West Bengal Land (Requisition and Acquisition)
Rules 1948 (for short the “1948 Rules”) he contended that the said Rule
provides for four modes of service. He submitted that both sub-section (2) of
Section 3 and Rule 3 uses the expression “shall”. He contended that
27 AIR 1964 SC 1006
28 (2015) 15 SCC 602
29 (2010) 13 SCC 98
30 (2010) 2 CHN (Cal) 315
Page 9 of 39
according to the scheme of the Act and the rules it can be inferred that the
legislative intent was that the service of the order under Section 3(1) is a
mandatory requirement. He contended that for the purpose of execution of
the order of requisition, possession is to be taken from the owners or
occupiers as the case may be and such possession can be taken only by
serving the copy of the order of requisition under Section 3(2) of the 1948
Act in the manner as prescribed under Rule 3 of the 1948 Rules. He
contended that if the possession is taken without service of the order of
requisition, then it will amount to trespass into the land of the owner which
would result in the possession of the Government to be an illegal one. He
contended that effect of non-compliance of Section 3(2) of the 1948 Act
would be prejudicial to the interest of the owners or occupiers. He, therefore,
submitted that the service of the order of requisition under Section 3(2)
should be held to be mandatory.
21. Mr. Bera contended that if the possession of a property is taken without
serving the order of requisition, it would amount to depriving a citizen of his
property without authority of law. In support of such contention Mr. Bera
placed reliance upon a decision of the Hon’ble Supreme Court in the case of
Tukaram Kana Joshi v. MIDC31 and Vidya Devi vs. Himachal Pradesh
and Ors32. Mr. Bera placed reliance upon the decisions of the Hon’ble
Supreme Court in the case of Govindlal Chhaganlal Patel v. Agricultural
Produce Market Committee33; State of Mysore vs. V.K Kangan and
Ors.34 and in the case of Debasish Paul and another vs. Amal Boral35 to
highlight the tests that are to be applied for construing a provision as
mandatory. Mr. Bera contended that the requirement of the service of the
order of requisition under Section 3(2) is a statutory duty prescribed under
31 (2013) 1 SCC 353
32 (2020) 2 SCC 569
33 AIR 1976 SC 263
34 (1976) 2 SCC 895
35 (2024) 2 SCC 169
Page 10 of 39
the Act. He contended that if the possession is taken without notice that will
amount to deprivation of the property of the citizens and forceful entry into
the land by the Government. He contended that under the 1948 Act a
proceeding is initiated on the basis of an order under Section 3(1) which is
to be executed by serving the said order and taking over possession of the
property in question. He concluded by submitting that the service of the
order of requisition under Section 3(2) should be held to be mandatory.
22. Heard the learned advocates and perused the materials placed.
The first question that falls for consideration is whether the provisions of
Section 3(2) of the 1948 Act are mandatory in nature or not.
23. Before analyzing the provisions of the 1948 Act and the rules framed
thereunder, it would be profitable to take note of the settled propositions of
law laying down the tests for declaring a provision of a statute to be
mandatory or directory.
24. In Dattatraya Moreshwar Pangarkar v. State of Bombay36, the Hon’ble
Supreme Court reiterated the well settled proposition that the provisions of
a statute creating public duties are directory but those conferring private
rights are mandatory.
25. The Hon’ble Supreme Court held thus-
“25.It is well settled that generally speaking the provisions of a statute
creating public duties are directory and those conferring private rights are
imperative. When the provisions of a statute relate to the performance of a
public duty and the case is such that to hold null and void acts done in
neglect of this duty would work serious general inconvenience or injustice
to persons who have no control over those entrusted with the duty and at
the same time would not promote the main object of the legislature, it has
been the practice of the courts to hold such provisions to be directory only,
the neglect of them not affecting the validity of the acts done.”
36 (1952) 1 SCC 372
Page 11 of 39
26. In State of Mysore v. V.K. Kangan,37 ,it was held that the determination of
the question whether a provision is mandatory or directory would, in a
ultimate analysis, depend upon the intent of the law maker and that has to
be gathered not only from the phraseology of the provision but also by
considering its nature, its design and the consequences which would follow
from construing it in one way or the other.
27. A statute is to be read as a whole to extract its meaning and intendment
correctly as held in Vijayawada Municipal Council vs. Andhra Pradesh
State Electricity Board & Another38.
28. In Sharif-ud-Din v. Abdul Gani Lone39, the Hon’ble Supreme Court held
that whenever a statute prescribes that a particular act is to be done in a
particular manner and also lays down that failure to comply with the said
requirement leads to a specific consequence, the provision has to be
construed to be mandatory.
29. In Balwant Singh v. Anand Kumar Sharma40, three Hon’ble Judges of
the Supreme Court held that whether a mandatory or directory construction
should be given to a statutory provision may be determined by an
expression in the statute itself of the result that shall follow non-compliance
with the provision. As a corollary of the said rule it was stated that the fact
that no consequences of non-compliance are stated in the statute has been
considered as a factor tending towards a directory construction but that is
only an element to the considered and is by no means conclusive. Hon’ble
Supreme Court held thus-
“7. Yet there is another aspect of the matter which cannot be lost sight
of. It is a well-settled principle that if a thing is required to be done by a
private person within a specified time, the same would ordinarily be
mandatory but when a public functionary is required to perform a public37 (1976) 2 SCC 895
38 (1976) 4 SCC 548
39 (1980) 1 SCC 403
40 (2003) 3 SCC 433
Page 12 of 39
function within a time-frame, the same will be held to be directory unless
the consequences therefor are specified. In Sutherland’s Statutory
Construction, 3rd Edn., Vol. 3, at p. 107, it is pointed out that a statutory
direction to private individuals should generally be considered as
mandatory and that the rule is just the opposite to that which obtains
with respect to public officers. Again, at p. 109, it is pointed out that often
the question as to whether a mandatory or directory construction should
be given to a statutory provision may be determined by an expression in
the statute itself of the result that shall follow non-compliance with the
provision. At p. 111 it is stated as follows:
“As a corollary of the rule outlined above, the fact that no
consequences of non-compliance are stated in the statute, has been
considered as a factor tending towards a directory construction. But this
is only an element to be considered, and is by no means conclusive.”
(emphasis supplied)
30. In State of Haryana vs. Raghubir Dayal41, it was observed that the word
“shall” ought to be construed not according to the language with which it is
clothed but in the context in which it is used and the purpose it seeks to
serve. The Hon’ble Supreme Court held thus-
“5. The use of the word ‘shall’ is ordinarily mandatory but it is
sometimes not so interpreted if the scope of the enactment, on
consequences to flow from such construction would not so demand.
Normally, the word ‘shall’ prima facie ought to be considered
mandatory but it is the function of the court to ascertain the real
intention of the legislature by a careful examination of the whole scope
of the statute, the purpose it seeks to serve and the consequences that
would flow from the construction to be placed thereon. The word ‘shall’,
therefore, ought to be construed not according to the language with
which it is clothed but in the context in which it is used and the purpose
it seeks to serve. The meaning has to be ascribed to the word ‘shall’ as
mandatory or as directory, accordingly. Equally, it is settled law that
when a statute is passed for the purpose of enabling the doing of
something and prescribes the formalities which are to be attended for
the purpose, those prescribed formalities which are essential to the
validity of such thing, would be mandatory. However, if by holding
them to be mandatory, serious general inconvenience is caused to
innocent persons or general public, without very much furthering the
object of the Act, the same would be construed as directory.”
(emphasis supplied)
41 (1995) 1 SCC 133
Page 13 of 39
31. In Debasish Paul (supra) the Hon’ble Supreme Court reiterated the well
settled proposition of law that the real intention of the legislation must be
gathered from the language used. Use of the expression “shall” or “may” is
not decisive for arriving at a finding as to whether the statute is directory or
mandatory but the intention of the legislature must be found out from the
scheme of the Act.
32. The Hon’ble Supreme Court in Govindlal Chhaganlal Patel (supra)42 held
that the term “shall” in its ordinary significance is mandatory and the Court
shall ordinarily give that interpretation to that term unless such an
interpretation leads to some absurd or inconvenient significance or be at
variance with the intent of the Legislature, to be collected from other parts of
the Act. The construction of the said expression depends on the provisions
of a particular act, the setting in which the expression appears, the object
for which the direction is given, the significances that would flow from the
infringement of the direction and such other conditions.
33. In May George (supra)43 the Hon’ble Supreme Court after noticing several
of its earlier decisions laid down the tests that are to be applied in order to
declare a provision mandatory in paragraph 25 of the said reports.
“25. The law on this issue can be summarised to the effect that in order
to declare a provision mandatory, the test to be applied is as to whether
non-compliance with the provision could render the entire proceedings
invalid or not. Whether the provision is mandatory or directory, depends
upon the intent of the legislature and not upon the language for which
the intent is clothed. The issue is to be examined having regard to the
context, subject-matter and object of the statutory provisions in
question. The Court may find out as to what would be the consequence
which would flow from construing it in one way or the other and as to
whether the statute provides for a contingency of the non-compliance
with the provisions and as to whether the non-compliance is visited by
small penalty or serious consequence would flow therefrom and as to
whether a particular interpretation would defeat or frustrate the
legislation and if the provision is mandatory, the act done in breach
thereof will be invalid.”
42
AIR 1976 SC 263
43 (2010) 13 SCC 98
Page 14 of 39
(emphasis supplied)
34. In State of Andhra Pradesh vs. Mohd. Hussain44, the Hon’ble Supreme
Court held that it is a well settled canon of interpretation that when it comes
to construction of a section, it is to be read in its entirety and its sub-
sections are to be read in relation to each other, and not disjunctively.
Besides, the text of the section has to be read in the context of the statute. It
was further observed that a few subsections of a section cannot be
separated from other sub-section, and read to convey something altogether
different from the theme underlying the entire section. It was also held that
a section has to be read purposively and meaningfully.
35. Keeping in mind the aforesaid well settled propositions of law, this Court
shall now proceed to examine whether the provisions laid down under
Section 3(2) of the 1948 Act are mandatory or not.
36. West Bengal Land (Requisition and Acquisition) Act, 1948 was enacted to
provide for requisition and speedy acquisition of land for the purpose of
maintaining supplies and services essential to the life of the community,
increasing employment opportunities for the people by establishing
commercial estates and industrial estates in different areas, providing
proper facilities for transport, communication, irrigation or drainage and
creating better living conditions in urban or rural areas by the construction
or reconstructions of dwelling places in such areas or for purposes
connected therewith and incidental thereto.
37. The power to requisition the property is vested upon the State Government
under Section 3(1) of the 1948 Act. State Government could requisition the
property upon formation of opinion that it is necessary for the purposes
mentioned hereinbefore. Sub-section (1) of Section 3 states that the State
Government may, by order in writing, requisition any land and may make
44 (2014) 1 SCC 258
Page 15 of 39
such further orders as appear to it to be necessary or expedient in
connection with the requisitioning.
38. Sub-section (2) of Section 3 states that an order under sub-section (1) shall
be served in the prescribed manner on the owner of the land and where the
order relates to land in occupation of an occupier, not being the owner of the
land, also on the occupier.
39. The mode of service of order passed under Section 3(1) of the 1948 Act is
prescribed under Rule 3 of the West Bengal (Requisition & Acquisition)
Rules, 1948.
40. Under the scheme of the 1948 Act, if there is a valid requisition, the State
Government may use or deal with the land for the purposes referred to in
Section 3(1). If such land is required for a public purpose referred to in
Section 3(1), the State Government may acquire any land requisitioned by
publishing a notice under Section 4(1a) in the Official Gazette.
41. Section 6 of the 1948 Act states that where any land requisitioned is not
acquired and is to be released from requisition, the State Government may
after making such inquiry, specify by order in writing, the person who
appears to it to be entitled to the possession of such land.
42. For better appreciation, Section 3, 4 and 6 of the 1948 Act and Rule 3 of the
1948 Rules are extracted hereinafter.
“3. Power to requisition. (1) If the State Government is of the opinion
that it is necessary so to do for maintaining supplies and services
essential to the life of the community or for increasing employment
opportunities for the people by establishing commercial estates and
industrial estates in different areas or for providing proper facilities for
transport. communication, irrigation or drainage, or for the creation of
better living conditions in rural or urban areas, not being an industrial
or other area excluded by the State Government by a notification in this
behalf, by the construction or reconstruction of dwelling places in such
areas or for purposes connected therewith or incidental thereto, the
State Government may, by order in writing, requisition any land and
may make such further orders as appear to it to be necessary or
expedient in connection with the requisitioning:
Page 16 of 39
Provided that no land used for the purpose of religious worship or used
by an educational or charitable institution shall be requisitioned under
this section.
(1A) A Collector of a district, an Additional District Magistrate or the
First Land Acquisition Collector, Calcutta when authorised by the State
Government in this behalf, may exercise within his jurisdiction the
powers conferred by sub-section (1).
(2) An order under sub-section (1) shall be served in the prescribed
manner on the owner of the land and where the order relates to land in
occupation of an occupier, not being the owner of the land, also on such
occupier.
(3) If any person fails to comply with an order made under sub-section
(1), the Collector or any person authorised by him in writing in this
behalf shall execute the order in such manner as he considers
expedient and may.-
(a) if he is a Magistrate, enforce the delivery of possession of the land in
respect of which the order has been made to himself, or
(b) if he is not a Magistrate, apply to a Magistrate or, in Calcutta as
defined in clause (11) of section 5 of the Calcutta Municipal Act. 1951,
to the Commissioner of Police, and such Magistrate or Com- missioner,
as the case may be, shall enforce the delivery of possession of such
land to him.”
“4. Acquisition of land. – (1) Where any land has been requisitioned
under section 3, the State Government may use or deal with such land
for any of the purposes referred to in sub-section (1) of section 3 as may
appear to it to be expedient.
(la) The State Government may acquire any land requisitioned under
section 3 by publishing a notice in the Official Gazette that such land is
required for a public purpose referred to in sub-section (1) of section 3.
(2) Where a notice as aforesaid is published in the Official Gazette, the
requisitioned land shall, on and from the beginning of the day on which
the notice is so published, vest absolutely in the 15 [State] Government
free from all incumbrances and the period of requisition of such land
shall end.”
“6. Release from requisition.- (1) Where any land requisitioned un-
der section 3 is not acquired and is to be released from requisition, the
[State] Government may, after making such inquiry, if any, as it consid-
ers necessary, specify by order in writing the person who appears to it
to be entitled to the possession of such land.
(2) The delivery of possession of such land to the person specified in the
order made under sub-section (1) shall be a full discharge of any
Page 17 of 39
liability of the [State] Government [for any claim for compensation or
other claim in respect of such land for any period after the date of
delivery] but shall not prejudice any right in respect of such land which
any other person may be entitled by due process of law to enforce
against the person to whom posses- sion of the land is so delivered.
(3) Where the person [specified in the order made under sub-section (1)]
cannot be found or is not readily traceable or has no agent or other
person empowered to accept delivery on his behalf, the [State]
Government shall publish in the Official Gazette a notice declaring that
such land is released from requisition and shall cause a copy thereof to
be affixed on some conspicuous part of such land.
(4) When a notice referred to in sub-section (3) is published in the
Official Gazette, the land specified in such notice shall cease to be
subject to requisition on and from the date of such publication and shall
be deemed to have been delivered to the person [specified in the order
made under sub-section (1)]; and the [State] Government shall not be
liable for any compensation or other claims in respect of such land for
any period after the said date.”
43. Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948 is
set out hereunder:
“3. Manner of Service of Orders. An order under sub-section (1) of
section 3 shall be served on the owner of the land and where the order
relates to land in occupation of an occupier not being the owner of the
land, also on such occupier:
(a) by delivering or tendering a copy thereof, endorsed either by the
person authorised by the Act to make the order or by the Collector, to
the person on whom the order is to be served or his agent, or
(b) by fixing a copy thereof on the outer door of some conspicuous part
of the house in which the person on whom the order is to be served
ordinarily resides or carries on business or personally works for gain, or
(c) by sending the same to the person on whom the order is to be served
by registered post with acknowledgement due, or
(d) by fixing a copy thereof in some conspicuous part of the land to
which the order relates and also in some conspicuous place of the office
of the Collector.”
44. An issue whether the 1948 Act is ultra vires the Constitution under Article
19(1)(f) read with Article 19(5) fell for consideration before the Constitution
Page 18 of 39
Bench in S.M. Nandy and others vs. State of West Bengal and others45.
The Hon’ble Supreme Court after setting out the scheme of the Act noticed
that the Act was enacted in order to provide for requisitioning and speedy
acquisition of land for a number of public purposes.
45. The Hon’ble Supreme Court after noting the provisions of sub-sections (2)
and (3) of Section 3 observed that there is nothing in the Act which prevents
a person on whom an order has been served under subsection (2) to make a
representation to the Collector or the State Government against the order of
requisition.
46. The Hon’ble Supreme Court noted that the State Government may acquire
any land requisitioned under the Act by publishing a notice in the Official
Gazette that such land is required for a public purpose referred to in Section
3(1) and also that Section 6 enables the State Government to derequisition
or release from requisition any land. The 1948 Act also provides for payment
of fair compensation.
47. After noting the scheme of the 1948 Act, the Hon’ble Supreme Court held
that it is difficult to hold that restrictions imposed by the 1948 Act are
unreasonable. The Hon’ble Supreme Court held thus-
“8. We are, therefore, of the opinion that it is difficult to hold that
restrictions imposed by the impugned Act are unreasonable. Fair
compensation has been provided for requisitioning, which is
determinable by a civil court and ultimately by the High Court or the
Supreme Court. Regarding the necessity for requisitioning it must
necessarily be left to the State Government. It is true that there is no
express provision to make a representation against an order of
requisition but there is no bar to a representation being made after an
order is served under Section 3(2) of the Act. We have no doubt that if
the representation raises a point which overrides the public purpose it
would be favourably considered by the State Government or other
Government authorities, as the case may be.”
(emphasis supplied)
45 (1971) 1 SCC 688
Page 19 of 39
48. The aforesaid proposition laid down by the Hon’ble Supreme Court in para 8
of S.M.Nandy (supra)46 has been followed by the Hon’ble Division Bench in
Mihir Kumar Sarkar and others vs. State of West Bengal and others47.
An issue was raised before the Hon’ble Division Bench in Mihir Kumar
Sarkar (supra) whether the 1948 Act permits a requisition without giving
even a hearing or opportunity to the person whose land is requisitioned. The
said issue was answered by the Hon’ble Division Bench by holding that the
order of requisition under the 1948 Act is not in the nature of an order in
judicial proceeding and, therefore, absence of express provision for notice
before requisition of land under Section 3 of the 1948 Act cannot ordinarily
vitiate such requisition either on the ground of violation of the principles of
natural justice or on the ground of infringement of fundamental rights of
property under the Constitution of India.
49. The admitted factual position of the said reported case as noted in para 46
of the said reports is that the order of requisition dated November 5, 1969
was served on 7th November, 1969 calling upon the appellants therein to
deliver possession on the following day. Such order of requisition was
challenged inter alia on the ground that such action is highhanded giving no
time or hardly any time to the appellants therein.
50. On such factual matrix the Hon’ble Division Bench in paragraph 46 of the
reports held thus-
“46….In the very first instance, Section 3(1) as quoted above does not
speak of any notice whatsoever. That section provides in Section 3(2)
that the order shall be served in the prescribed manner on the owner or
occupier of the land. That has been done. The statute, therefore, does
not provide for any particular notice or any minimum period of notice.
The requirements of Section 3(2) of the West Bengal Act have on the
facts of this case been satisfied….”
(emphasis supplied)
46
(1971) 1 SCC 688
47 AIR 1972 Cal 8
Page 20 of 39
51. To the mind of this Court, the said decision is not an authority for the
proposition that the provisions of Section 3(2) are directory and not
mandatory. On the contrary the Hon’ble Division Bench in paragraph 22 of
the said reports after noticing Section 3(2) held that it appears from the said
provision that it does not require notice to be given to the owner or occupier
before the order of requisition is made although it requires that the order of
requisition after having been made, shall be served in the prescribed
manner on the owner and/or the occupier of the land. In the said reported
case, the order under Section 3(1) was served and it was recorded that the
requirements of Section 3(2) had been satisfied.
52. Sub-section (2) of Section 3 of the 1948 Act uses the expression “shall”.
53. It is now judicially settled that the word “shall” is ordinarily mandatory but
it is the function of the Court to ascertain the real intention of the
legislature by a careful examination of the whole scope of the statute, the
purpose it seeks to serve and the consequences that would flow from the
construction to be placed thereon. It is equally settled that the Court shall
ordinarily give that interpretation to that term unless such an interpretation
leads to some absurd or inconvenient significance.
54. Sub-section (2) states that the order under Section 3(1) shall be served in
any event on the owner and in addition to that it should also be served on
the occupier if there is one, who is not the owner of the premises.
55. Sub-section (3) of Section 3 provides for execution of the order under
Section 3(1) if any person fails to comply with such order.
56. Thus, if any person(s) has or have failed to place the premises in question at
the disposal of the Government, then only possession can be taken by the
Government in the manner as provided under clauses (a) or (b) of Section
3(3).
57. Section 3 of the 1948 Act enables the Government to requisition a property
and also prescribes the formalities to be complied with viz. service of the
Page 21 of 39
copy of the order under Section 3(1) for compliance of such order and in
case of failure to comply, the consequences therefor are provided under
Section 3(3).
58. When the Constitution of India came into effect on 26.01.1950, the right to
property was a fundamental right under Article 19(1) (f) and acquisition and
requisition of the property was guided by Article 31(1) and 31(2). Thus, a
person could not have been deprived of his property save by the authority of
law.
59. Article 300A was inserted by the Constitution (Forty fourth Amendment) Act,
1978 with effect from 20.06.1979 and Articles 19(1)(f) and 31 were
accordingly omitted.
60. The effect of Article 300A fell for consideration before the Hon’ble Supreme
Court in Jilubhai Nanbhai Khachar vs. State of Gujarat48 and it was
held that Article 300A only limits the power of the State that no person shall
be deprived of his property save by authority of law. There is no deprivation
without due sanction of law. Deprivation by any other mode is not
acquisition or taking possession under Article 300A.
61. In Tukaram Kana Joshi (supra)49, the Hon’ble Supreme Court reiterated
the observations in Jilubhai Nanbhai Khachar (supra)50 and held that
even after the right to property ceased to be a fundamental right, taking
possession of or acquiring the property of a citizen most certainly
tantamount to deprivation and such deprivation can take place only in
accordance with the “law” as the said word has specifically been used in
Article 300A of the Constitution of India. It was further held that the right to
property is now considered to be not only a constitutional right or a
statutory right but also a human right.
48 1995 Supp(1) SCC 596
49 (2013) 1 SCC 353
50 1995 Supp(1) SCC 596
Page 22 of 39
62. Section 3 of the 1948 Act enables the State Government to requisition any
land and to take possession of the same. The formalities that are to be
complied with for such purpose have been specifically provided in the
statute. Sub-section (2) of Section 3 provides that the order under Section
3(1) shall be served.
63. Service of such order would make the person aware that he has to comply
with such order failing which the order shall be executed in the manner as
provided under Section 3(3).
64. In case of acquisition of the requisitioned land, Section 4(1a) provides for
publication of a notice in the Official Gazette.
65. However, there is no provision for publication of an order under Section 3(1)
and the only mode of giving effect of the order under Section 3(1) is by way
of service of such order upon the person concerned. If the service of the
order under Section 3(1) is interpreted as directory and not mandatory, it
may encourage taking over possession of property by way of arbitrary
exercise of power by executives or administration.
66. It is now well settled that a person cannot be deprived of possession of his
property by way of executive fiat or order or administrative caprice. Taking
possession of a property without complying with the provision of Section 3(2)
of the 1948 Act will amount to depriving a person of his right to possess the
property without authority of law, as rightly argued by Mr. Bera.
67. At this stage it would be relevant to take note of the submission of Mr.
Talukdar that Section 3(2) should be held to be directory as the statute does
not provide for any consequences for non-compliance with the requirement
of Section 3(2).
68. Even if the submission of Mr. Talukdar is accepted that no consequences of
non-compliance of Section 3(2) have been provided in the statute, the same
cannot come to the aid of the respondents as such factor is only one of the
several factors that are to be taken into consideration to determine whether
Page 23 of 39
a provision is directory or mandatory and the same cannot be said to be
conclusive as held by Three Hon’ble Judges of the Supreme Court in
Balwant Singh (supra)51.
69. In May George (supra)52, it was not in dispute that the notification under
Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894
were published in the newspaper and publicity as mandatorily required
under the law was given. Award was made and possession of the land was
taken. The award was challenged on the ground that notice under Section
9(3) had not been served.
70. On facts it was found that the notice under Section 9(3) was affixed on the
part of the land in dispute as the appellant therein was not available as he
was not a resident of the area. It was observed that if instead of “Smt.” in
the notice/ documents, she had been shown as “Thiru”, that would be
immaterial so far as the merit of the case was concerned.
71. Thus, May George (supra) dealt with a case of irregularity in service of
notice under Section 9(3) and not non-service of notice.
72. In the backdrop of such factual matrix, the Hon’ble Supreme Court applied
the well settled proposition of law that if there is an irregularity in service of
notice under Section 9 and 10, it would be a curable defect and on that
account, the award would not become invalid and accordingly refused to
entertain a challenge to the award after an inordinate delay and vesting of
the land in question.
73. However, a question of law fell for consideration in May George (supra) as to
whether the provisions of Section 9(3) are mandatory in nature and non-
compliance therewith would vitiate the award and subsequent proceedings
under the Act.
51
(2003) 3 SCC 433
52
(2010) 13 SCC 98
Page 24 of 39
74. While answering the said issue, the Hon’ble Supreme Court after noticing
several decisions, in paragraph 25 of the reports summarized the law and
laid down the tests to be applied for declaring a provision mandatory. It
would be evident from paragraph 25 as extracted (supra), that one out of
several tests is whether non-compliance with the provision could render the
entire proceedings invalid or not. However, such factor is not conclusive as
observed in Balwant Singh (supra)53.
75. By applying the proposition of law laid down in paragraph 25, the Hon’ble
Supreme Court held that failure to issue notice under Section 9(3) would not
adversely affect the subsequent proceedings including the award and the
title of the Government in the acquired land. It was further observed that so
far as the person interested is concerned, he is entitled only to receive the
compensation and, therefore, there may be large number of disputes with
regard to apportionment of compensation for which the aggrieved party may
approach the Collector to make a reference to the Court.
76. The said decision is not an authority for the proposition that the provision of
Section 3(2) of the 1948 Act is directory and not mandatory.
77. In M/s. Hunuikeri Bros (supra)54 it was held that omission to serve a notice
under Section 9(3) of the Land Acquisition Act 1894 cannot be made the
ground for an attack that the award to any extent is a void award.
78. In Saktipada Mondal55 (supra), it was held that the 1948 Act does not
contemplate giving of a notice before an order of requisition is passed and if
an order is passed under the said Act without giving such notice, then the
order cannot be challenged in a writ proceeding on the ground of violation of
the principles of natural justice.
53
(2003) 3 SCC 433
54 AIR 1962 Mys 169
55
AIR 1976 Cal 282
Page 25 of 39
79. In Mihir Kumar Sarkar (supra)56, the Hon’ble Division Bench reiterated
the observations of the Constitution Bench in S.M.Nandy (supra) that
although the 1948 Act does not expressly provide for a representation, yet
there is nothing to prevent a representation being made after the order has
been served. The Hon’ble Division Bench held that the view expressed by the
Supreme Court is supported by a reference also to Section 6 of the 1948 Act
providing expressly for releasing requisitioned land which “is not acquired”
and “is to be released”.
80. Thus, Mihir Kumar Sarkar (supra) also recognizes the right to make a
representation after being served with the order of requisition. Recognition
of right to make a representation would lead to an inference that non-service
of the order passed under Section 3(1) would result in denial of right to
make a representation against the order passed under Section 3(1).
81. A co-ordinate bench in Tarak Nath Sen (supra) held that Section 3(2) of
the 1948 Act makes service of the notice in the prescribed manner on the
owner mandatory and where the order of requisition relates to land in
occupation of an occupier not being the owner of the land also on such
occupier.
82. Another co-ordinate bench in Syed Fateyab Ali Meerza (supra) returned a
factual finding that there was non-service of notice upon the occupier who
were entitled to get a notice as occupier and accordingly held that such non-
service of notice amounts to violation of the provisions of Section 3(2) of the
1948 Act.
83. In Bhinashar Finance (P) Ltd. (supra)57, a co-ordinate bench, after
considering the scheme of the Act held that Section 3(2) is mandatory and
the order under Section 3(1) could only be effective only on service as
provided under sub-section (2) of Section 3 of the 1948 Act.
56
AIR 1972 Cal 8
57
(1992) 1 CLJ 222
Page 26 of 39
84. The Hon’ble Division Bench in Sailendra Nath Pal (supra) noticed the
decisions in the case of Tarak Nath Sen (supra)58, Syed Fateyab Ali
Meerza (supra) and Bhinashar Finance (P) Ltd. (supra)59 and after
recording a factual finding that pasting of a copy of the order under Section
3(1) of 1948 Act at a local primary school situated, not on the subject land,
cannot be said to be in compliance with the provisions of Section 3(2) of the
1948 Act and Rule 3 of the 1948 Rules held that the order of requisition is
not valid for non-compliance with the provisions of Section 3(2) of the 1948
Act and Rule 3 of the 1948 Rules. All subsequent steps taken for acquisition
of the land in question were held to be invalid as under Section 4 of the
1948 Act, there could be acquisition of a land which has been properly
requisitioned under Section 3.
85. The aforesaid discussion as well as the decision in Sailendra Nath Pal
(supra) supports the view that the expression “shall” used in Section 3(2)
has to be interpreted as mandatory.
86. However, after the hearing of this writ petition was concluded and the
judgment was reserved, Mr. Talukdar mentioned this matter for placing
reliance upon a recent judgment delivered by the Hon’ble Division Bench in
the case of Madhurina Mitra vs. State of West Bengal and others60.
87. The parties were invited to make their respective arguments on the
applicability or otherwise of the said decision.
88. In Madhurina Mitra (supra), the Hon’ble Division Bench held that the
proposition laid down in Sailendra Nath Pal (supra) is per incuriam, being
contrary to that enunciated in Mihir Kumar Sarkar (supra), which was
rendered by a still earlier equal strength bench of this Court, and impliedly
58
(1983) 1 CLJ 371
59
(1992) 1 CLJ 222
60 2026 SCC Online Cal 817.
Page 27 of 39
overruled by the proposition laid down subsequently in May George (supra)
by the Hon’ble Supreme Court. The Hon’ble Division Bench held that non-
service of a notice under Section 3(2) of the 1948 Act does not vitiate the
requisition and/or subsequent acquisition proceeding.
89. The Hon’ble Division Bench held that although sub-section (2) of Section 3
provides for service of such order in the prescribed manner on the owner or
occupier of land, there is no sanction provided in the statute for non-
observance of such provision. It was further held that the purpose of a
notice under sub-section (2) is only to notify a person that possession of the
land would be taken.
90. The decision in Madhurina Mitra61 (supra) is a binding precedent. It,
therefore, follows that alleged non-service of the order in the manner as
required under Section 3(2) did not vitiate the requisition and/or the
subsequent acquisition proceeding.
91. This Court has to now consider whether the petitioner is entitled to any
relief.
92. Petitioners claim that their predecessor-in-interest purchased a portion of
plot no. 2454/2759 which was fully covered by structure by virtue of a
registered deed of conveyance dated April 30, 1968. In the recitals of the
said deed it is specifically stated that one Nagendra Nath Das i.e., the
vendor of the predecessor-in-interest of the petitioner was the recorded
owner of the plot being Dag no. 2454/2759 measuring an area of more or
less 0.88 acres and the said land was a paddy land. The said Nagendra Nath
Das divided the said plot into smaller plots for transferring the smaller plots
to different persons. By virtue of the registered deed of conveyance dated
April 30, 1968, Nagendra Nath Das sold and transferred a portion of Dag
No. 2454/2759 R.S. Khatian No. 191 within Mouja Kasba being plot no. 11
of the Development Scheme as depicted in the Sketch map appended thereto
measuring an area more or less 3 Cottahs 2 Chittacks and 5 square feet in
61
2026 SCC Online Cal 817
Page 28 of 39
favour of Pramatha Ranjan Dutta i.e., the predecessor-in-interest of the
petitioners.
93. From the recitals of the said deed of conveyance, it is evident that the
property which was the subject matter of the deed of conveyance was a
paddy land and there is no mention about the existence of any structure in
the said deed.
94. In view thereof, this Court is not inclined to accept the contention of the
petitioners that their predecessor-in-interest purchased the property fully
covered by structure.
95. Record reveals that Plot no. 2454/2759 was requisitioned by an order under
Section 3(1) of the 1948 Act by virtue of L.A. Case no. LA/II/105 of 1976-97
and the possession of an area measuring about 0.82 acres of the said plot
excluding the area covered by structure was handed over to the CMDA now
KMDA on 15.05.1978. Notice under Section 4(1a) of the 1948 Act was
published in the Calcutta Gazette Extraordinary dated 21.11.1983. Award
was declared for the Sali land measuring 0.82 acres of R.S. Plot no. 2759,
R.S. Khatian No. 191 within mouja Kasba. From the relevant portion of the
said Award which has been annexed to the writ petition it is evident that
Promotho Ranjan Datta was one of the awardees in respect of R.S. Dag no.
2759(P), R.S. Khatian No. 191.
96. Specific stand of the State as reflected in the report filed by the Special Land
Acquisition Officer, 24 Parganas (South) dated 13.10.2025, is that the award
money amounting to Rs. 1,13, 913.19/- has been deposited in the Court of
the Learned Special L.A. Judge at Alipore.
97. L.A. case being no. LA/II/2 of 1993-94 was subsequently initiated for the
purpose of taking over possession of the structural portion of R.S. Plot no.
2759 measuring an area of 0.06 acres. The possession of the said portion
was handed over to the Requiring Body on 31.03.1994. Notice under Section
4(1) of the 1948 Act was published in the Calcutta Gazette Extraordinary
dated 13.10.1995. The acquisition proceeding was thereafter carried forward
Page 29 of 39
by issuing a notice under Section 9(3A) of the Land Acquisition (West Bengal
Amendment) Act 1997 to Nagendranath Das. Award was declared in favour
of Nagendranath Das in respect of plot no. 2454/2759, Khatian No. 191
measuring an area of 0.06 acres under Award Serial No. 54. It is the specific
stand of the State as reflected in the report of the special Land Acquisition
Officer 24 Parganas (South) dated 13.10.2025 that since the award
amounting to Rs. 2,81,814.82 could not be verified, the same was deposited
in the Court of the learned Special LA Judge at Alipore.
98. The aforesaid factual position as stated in the said report could not be
controverted by the petitioners by production of any records. Though the
learned advocate appearing for the petitioner in course of his argument
vehemently contended that the portion of the plot no. 2454/2759 which was
purchased by the predecessor-in-interest of the petitioners was out of the
acquisition proceedings as the same was covered by structures, no material
has been produced by the petitioners before this Court to substantiate the
point of time when the structures were constructed subsequent to the
purchase of the property by Pramatha Ranjan Dutta since deceased, as this
Court has already observed that there was no existence of any structure on
the plot in question at the time of purchase by Pramatha Ranjan Dutta.
99. Record further reveals that the petitioners through their learned advocate’s
letter dated March 17, 2022 requested the authority of KMDA to make an
arrangement for holding a joint field demarcation for getting a clear picture
with regard to the acquisition of land being Dag no. 2454/2759. In the said
representation it was stated that though the petitioners are joint owners of
piece and parcel of a land measuring 3 Cottahs 2 Chittacks and 5 square
feet which was fully covered by structure since the date of purchase of the
same by the purchaser-in-interest but the acquiring authority only
exempted two and a half Cottahs of land though the entire plot of land
measuring 3 Cottahs 2 Chittacks 5 square feet is required to be exempted as
having structure over the entire plot.
Page 30 of 39
100. Alleging inaction on the part of the respondent authorities, petitioners filed a
writ petition being no. 8357/2022. Pursuant to the direction passed by the
co-ordinate bench in the said writ petition, the respondent authorities filed
reports in the form of an affidavit. Petitioner claims that upon going through
the said reports in the form of an affidavit the petitioners came to learn that
the entire plot in question being Dag no. 2454/2759 comprising 0.88 acres
has been acquired by the State respondents. The learned advocate for the
petitioners submitted before the co-ordinate bench in WPA 8357 of 2022
that such knowledge of the petitioners gave rise to a fresh cause of action for
which the petitioners sought to challenge the acquisition into LA/II/2 of
1993-94 in respect of 0.06 acres of plot. On the basis of such submission
the petitioner sought to withdraw the writ petition and the co-ordinate
bench, by an order dated 19th July, 2023, dismissed WPA 8357/2022 for
non-prosecution.
101. Thereafter, the instant writ petition has been filed challenging the
notification published in connection with LA Case No. LA/II/2 of 1993-94
and for a direction upon the respondent authorities to release the property
of the petitioners from the scope and ambit of the said acquisition
proceeding.
102. Mr. Chakraborty, learned advocate for the petitioner would contend that
since the order under Section 3(1) of 1948 Act was not served upon the
petitioners or their predecessor-in-interest the petitioners were not aware of
the requisition proceeding.
103. No material has been produced before this Court by the petitioners to show
that the name of their predecessor-in-interest was duly recorded in the
record of rights at the relevant point of time when the property was
requisitioned. That apart the notice under Section 4(1a) in respect of the
acquisition of 0.82 acres of plot no. 2759 was published in the Calcutta
Gazette Extraordinary dated November 21, 1983 and the name of the
predecessor-in-interest was recorded as an awardee in respect of plot no.
2759 under R.S. Khatian No. 191 vide award Serial No. 30. Thus, it shall be
Page 31 of 39
presumed that the predecessor-in-interest of the petitioners was aware of
the publication of the notice under Section 4(1a) of the 1948 Act and
produced materials in support of his right, title and interest in respect of the
plot in question and accordingly the name of the predecessor-in-interest of
the petitioner was recorded as an awardee in respect of the said plot in
question. Subsequently notice under Section 4(1a) of the 1948 Act for
acquisition of 0.06 acres in plot no. 2759 was published in the Calcutta
Gazette Extraordinary dated February 13, 1995. From the bare reading of
the aforesaid notice issued under Section 4(1a) it is evident that the entire
plot being R.S. Dag No. 2759 measuring about 0.88 acres was acquired in
totality in two phases.
104. No acceptable reason has been assigned by the petitioners as to what
prevented the petitioners from challenging the acquisition proceedings being
LA Case being no. LA/II/2 of 1993-94 at the relevant point of time.
105. After a lapse of about more than 26 years from the date of publication of the
last notice under Section 4(1a) of the 1948 Act the petitioners approached a
co-ordinate bench by filing WPA 8357 of 2022 praying for demarcation of the
acquired portion of the plot in question and after withdrawing the said writ
petition has filed the instant writ petition only in the month of August,
2025.
106. In Sawaran Lata (supra)62, the Hon’ble Supreme Court after noting that
the only ground taken in the writ petition has been that substance of the
notification under Section 4 and declaration under Section 6 of the 1894 Act
had been published in the newspapers having no wide circulation held that
it cannot be presumed that they could not be aware of the proceedings for
the reason that a very large chunk of land belonging to a large number of
tenure holders had been notified for acquisition.
62
(2010) 4 SCC 532
Page 32 of 39
107. In Parag Construction (supra)63, the scheme in question was finalized in
1978 and the Notification was published in the Official Gazette in the year
1979. The appellant therein claimed to have purchased the property by
auction sale under the Certificate of Sale dated 24.09.1981. On the facts of
the said reported case, the Hon’ble Supreme Court observed that when the
appellants were bound to enquire about the properties which they had
allegedly purchased in Court auction and also that the appellants
maintained a sinister silence right from 1983 till they ultimately filed the
petition in the year 2006. The Hon’ble Supreme Court ultimately concluded
that the petition was hopelessly barred.
108. In Leelawanti (supra)64, the Hon’ble Supreme Court noticed that the
appellants therein challenged the acquisition of land but did not offer any
explanation for the long time gap of more than three decades between the
issuance of notifications under Section 4 and declaration under Section 6 in
the year 1976 and filing of the writ petition in the year 2007. After noting
the aforesaid facts, the Hon’ble Supreme Court applied the doctrine of
laches for negating the challenge to the acquisition of land.
109. From the aforesaid discussion, it follows that if an acquisition of land is
challenged after a long time gap between the issuance of notifications and
declarations under the relevant statute, as the case may be without offering
any explanation for the long time gap, the doctrine of laches can be invoked
to negate such challenge.
110. In the case on hand, this Court has already held that no acceptable reason
has been assigned for the long delay in approaching this Court. This Court
accordingly holds that the instant writ petition is hopelessly belated.
63
(2008) 16 SCC 198
64
(2012) 1 SCC 66
Page 33 of 39
111. With the publication of the notice under Section 4(1a) of the 1948 Act, the
requisitioned land vested absolutely in the State Government free from all
incumbrances on and from the beginning of the day on which the said
notice was published. This Court, therefore, holds that the entire plot no.
2759 total measuring about 0.88 acres vested absolutely with the State
Government free from all incumbrances.
112. It is now well settled that property once vested to the State cannot be
divested. In this regard it would be beneficial to take note of the
observations of the Hon’ble Supreme Court in the case of Indore
Development Authority vs. Sailendra65, the Hon’ble Supreme Court held
that-
“30.The word “vest” fell for consideration before the Hon’ble Supreme
Court in the case of Fruit & Vegetable Merchants Union vs. Delhi
Improvement Trust reported at (1996) 3 SCC 124, wherein it was
held that the word “vest” means the property acquired becomes the
property of the Government without any condition or limitation either as
to title or possession. Thus, when there is absolute vesting in the State
it is vesting along with possession and thereafter a person who remains
in possession is only a trespasser without any rightful possession. It
was further held that vesting contemplates absolute title and
possession in the State. The said proposition of law has been reiterated
by the Hon’ble Supreme Court in the case of Indore Development
Authority vs. Sailendra (see paragraph 94 and 95 of the said
reports).”
113. A question fell for consideration before the Hon’ble Supreme Court in S.
Palani Velayutham (supra)66 as to whether a vested remainderman of
acquired land was entitled to notice of acquisition, even if their names were
not entered in the revenue records. The Hon’ble Supreme Court held that
the Collector is not expected to hold mini enquiries whether the persons
whose names are disclosed, (other than those whose names are entered into
the revenue records) are persons interested in acquired land or not. It was
65 (2018) 3 SCC 405
66 (2009) 10 SCC 664
Page 34 of 39
further held that the Collector does not have any obligation to issue notice
to persons whose names are not entered in the revenue records.
114. As observed hereinbefore no material has been produced by the petitioner
before this Court to show that the name of their predecessor-in-interest was
recorded in the revenue records at the relevant point of time. That apart, the
plot in question was a Sali land and this Court has already held that no
material has been produced to show that the entire land was covered with
structures.
115. Recording of the name of the predecessor-in-interest of the petitioners in the
award passed in LA/II/105 of 1976-77 under award Serial No. 30 in respect
of the plot of land being R.S. Dag No. 2759 measuring about 0.82 acres
under R.S. Khatian no. 191 goes to show that the predecessor-in-interest of
the petitioner was well aware of the proceedings initiated by the Government
in respect of the plot in question but maintained a sinister silence from the
date of issuance of acquisition notification till the date of filing the writ
petition.
116. The challenge to the acquisition proceedings being LA Case No. LA/II/2 of
1993-94 in respect of the 0.06 acres of land in plot no. 2759 is only on the
ground that all subsequent steps taken for acquisition of the land is invalid
as there has been no proper requisition of the land.
117. At such a belated stage and in view of the observations made hereinbefore,
this Court is not inclined to entertain a challenge as to the validity of
acquisition proceeding.
118. This Court, accordingly, holds that the petitioner has failed to demonstrate
that the order of requisition under Section 3(1) of the 1948 Act is not valid
and effective under the law.
119. For all the reasons as aforesaid, this Court is not inclined to accept the
submission of the learned advocate for the petitioner that the acquisition
proceeding should be declared null and void.
Page 35 of 39
120. Section 6 of the 1948 Act provides for release from requisition where any
land requisitioned under Section 3 is not acquired. In the case on hand, the
land in question requisitioned under Section 3 of the 1948 Act was acquired
in accordance with law and the properties stood vested to the State free from
all incumbrances.
121. Thus, there is no scope to release the property in question or any portion
thereof to the petitioners.
122. Mr. Chakraborty learned advocate for the petitioner would contend that the
name of the petitioner has been recorded in the records of the Kolkata
Municipal Corporation as well as in the record of rights.
123. In the case on hand the property in question being Dag No. 2759 stood
vested with the State free from all incumbrances. Thus, the right, title and
interest of the erstwhile owner stood extinguished and the Government
became the absolute owner of the property free from all incumbrances.
124. The Hon’ble Supreme Court in Sadhu Ram (supra)67 held that when the
Government became the absolute owner of the property free from all
incumbrances, unless the title is conferred on any person in accordance
with a procedure known to law, no one can claim any title much less
equitable title by remaining in possession. It was further held therein that
the Government is not bound by the entries made in the record of rights as
title cannot be conferred merely by virtue of mutation. Since the property
stood vested with the Government free from all incumbrances, the
petitioners cannot claim any title by claiming to be in possession thereof.
125. In Bimal Kumar Shah (supra)68 an issue with regard to legality and
validity of acquisition of the property in exercise of power under Section 352
of Kolkata Municipal Corporation Act 1980 was raised. While dealing with
the said issue the Hon’ble Supreme Court held that Section 352 of the
67 (1997) 9 SCC 544
68 (2024) 10 SCC 533
Page 36 of 39
Kolkata Municipal Corporation Act has only intended to enable the
Municipal Commissioner to decide whether an amount is to be acquired for
public purpose and the power of acquisition is in fact vested with the State
under Section 537 and it will exercise it, in its own discretion whenever the
Municipal Commissioner makes an application to that effect. It was further
held that Section 362 is not a provision for compensation for compulsory
acquisition. The said decision being distinguishable on facts, have no
manner of application to the case on hand.
126. There is no quarrel to the proposition of law laid down by the Hon’ble
Supreme Court in Ultratech Cement Ltd.69 that when the acquisition of
land for public purpose is undertaken under the power of eminent domain
of the Government much against the wishes of the owners of the land which
gets acquired, such power is coupled with a bounden duty and obligation on
the part of the government body to ensure that the owners whose lands get
acquired are paid compensation / awarded amount as declared by the
statutory award at the earliest. On the facts of that case it was found that
the delay in payment of compensation to the land owners after taking away
ownership of the land from them was in contravention to the constitutional
scheme of Article 300A and the idea of an welfare State.
127. In the case on hand an award has already been declared and the name of
the predecessor-in-interest of the petitioners appears in the list of the
awardees and in case the predecessor-in-interest of the petitioners or the
petitioners had any objection as to the determination of the compensation or
apportionment thereof it was open for them to take steps in accordance with
law. The aforesaid decision being distinguishable on facts also cannot come
to the aid of the petitioners in the case on hand.
128. There is no quarrel to the proposition of law laid down in Punjab Land
Development and Reclamation Corpn. (supra)70 that a decision can be
69 (2025) 1 SCC 798
70 (1990) 3 SCC 682
Page 37 of 39
said generally to be given per incuriam when the Hon’ble Supreme Court has
acted in ignorance of a previous decision of its own or when a High Court
has acted in ignorance of a decision of the Hon’ble Supreme Court.
129. In Star Wire (India) Ltd. (supra)71 the property covered by the notification
under Section 4(1) was purchased after the said notification was published
and on such facts it was held that such a person has no right to challenge
the acquisition proceedings much less the award. The said decision being
distinguishable on facts cannot be of any assistance to the respondent
authority.
130. In U.P. Jal Nigam (supra)72 the Hon’ble Supreme Court refused to extend
similar reliefs to persons who have approached at a belated stage i.e., after
their retirement from service. The said decision being rendered in a service
matter cannot come to the aid of the respondents in the case on hand.
131. In Mahavir (supra)73 a writ petition was filed 105 years after the award was
passed alleging that compensation has not been paid and in view of the
operation of the provisions of Section 24 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2003, the land acquisition has lapsed. The said decision being
distinguishable on facts cannot have any manner of application to the case
on hand.
132. In Vidya Devi (supra)74, an illiterate widow coming from a rural area was
deprived of her private property by the State without resorting to the
procedure prescribe by law. On such facts the Hon’ble Supreme Court held
that the cause of action in the said reported case was a continuing one as
the appellant therein was compulsorily expropriated of her property without
71 (1996) 11 SCC 698
72 (2006) 11 SCC 464
73 (2018) 3 SCC 588
74
(2020) 2 SCC 569
Page 38 of 39
following due process of law and the demand for justice was compelling and
it also shocked the judicial conscience.
133. The said decision being distinguishable on facts cannot come to the aid of
the petitioner.
134. For all the reasons as aforesaid this Court is not inclined to grant any relief
to the petitioners. Accordingly, the writ petition stands dismissed.
135. There shall be, however, no order as to costs.
136. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
137. Before parting, this Court places on record its appreciation for the valuable
assistance rendered by the learned Amicus Curiae, Mr. Debayan Bera,
learned advocate in the present case.
(HIRANMAY BHATTACHARYYA, J.)
Page 39 of 39
