Lalita Almal vs First Land Acquisition Collector, Kolkata and Others

The petitioner in this writ petition dated July 20, 2001 is questioning a decision dated June 12, 2001, at p.124, given by the First Land Acquisition Collector, Kolkata in compliance with an order of this Court dated May 15, 2001, at p. 71, made in W.P. No. 953 of 1990 previously filed by her.

Three separate portions of the premises No.2, Garstin Place, Kolkata were requisitioned by the State Government for a public purpose. Questioning the action the petitioner moved this Court by filing a writ petition, Matter No.2407 of 1986, which was disposed of by an order dated July 28, 1988, at p.28, directing the respondents therein to acquire the requisitioned portions of the premises under provisions of the Land Acquisition Act, 1894. Accordingly, the requisite section 4 notification dated July 27, 1989, at p.47, was published in the newspaper on August 7, 1989. The petitioner submitted the section 5A objections dated August 31, 1989, at p.49. She submitted the further section 5A objections dated December 11, 1989, at p.51. After hearing her, the collector disposed of all the objections and submitted his report to the State Government that made the section 6 declaration dated January 10, 1990, at p.53. Feeling aggrieved, she moved the W.P. No.953 of 1990 on February 10, 1990, prayer (a) made therein was as follows:-

a) Writ in the nature Mandamus be issued commanding the respondents to forthwith cancel rescind and withdraw the impugned notification No. 5914-LA(II)/5M-2/89 dated 27th July, 1989 and the impugned declaration bearing No.310-LA(II)-SM-2/89 dated 10th January, 1990;

That W.P. No.953 of 1990 was disposed of by the order dated May 15, 2001, which is set out below:

"The applications being annexures "B" and "C" to the petition filed by the petitioner requesting the respondent authorities to consider the case of the petitioner in respect of acquiring of the premises in question be considered and disposed of by the First Land Acquisition Collector, Calcutta within a period of six weeks from the date of communication of this order after giving a hearing to the petitioner and shall pass a reasoned order. The said respondent shall communicate his order either to the petitioner or to his Advocate-on-Record within a week thereafter.

The respondent authorities shall not take any coercive steps against the petitioner till eight weeks from the date of communication of this order.

The application is thus disposed of.

All parties are to act on a xerox signed copy of this dictated order on the usual undertaking."

Annexures B and C referred to in the order dated May 15, 2001 were the petitioner''s section 5A objections dated August 31, 1989 and further objections dated December 11, 1989. By filing the objections she exercised her right conferred by section 49(1) of the Land Acquisition Act, 1894. Section 49(1) provides that the provisions of the Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired. By filing her section 5A objections the petitioner called upon the government to acquire the whole of the house in the premises, if it was inclined to put the provisions of the Act in force for the purpose of acquiring any part thereof.

The question is what is the effect of the decision dated June 12, 2001 given by the collector in compliance with the order of this Court dated May 15, 2001. According to Mr Ali, counsel for the petitioner, the effect of the decision is that if it is sustained today, then the government will be required to make a fresh section 6 declaration. According to him, once this Court relegated the parties to the collector directing him to give a decision in the section 5A objections filed by the petitioner, it has to be held that the section 6 declaration dated January 10, 1990, not set aside expressly, was set aside by the court impliedly. For this he relies on a Division Bench decision of this Court in Debabrata Tarafder Vs. Biraj Mohan Bardhan, and also on the provisions of section 49A inserted in the Land Acquisition Act, 1894 by the state amendment with effect from February 14, 1990.

Section 49A is set out below:

"49-A. Circumstances in which section 49 shall be put in force.-(1) Where the owner desires under sub-section (1) of section 49 that the whole of any house, manufactory or building shall be acquired, the provisions of that sub-section shall have effect only when the Collector is satisfied that the acquisition of a part only of such house, manufactory or building shall so adversely affect the use of the remaining part for the purpose for which it was being used as to justify the acquisition of the whole of the house, manufactory or building, as the case may be.

(2) Where the owner withdraws or modifies under the first proviso to sub-section (1) of section 49 his expressed desire that the whole of such house, manufactory or building shall be so acquired, it shall be lawful for the Collector to put in force the provisions of this Act for the purpose of acquiring a part only of such house, manufactory or building, as the case may be, in conformity with such withdrawal or modification."

According to Mr Ali, since in view of the provisions of section 49A the requisite enquiry in connection with the petitioner''s desire stated in her section 5A objections that the whole of the house should be acquired by the Government only the collector could make the necessary enquiry, the order dated May 15, 2001 was made directing the collector to consider and dispose of the section 5A objections, and hence it should be held that the section 6 declaration dated January 10, 1990 was impliedly set aside by the order. His further submission is that the order of this Court dated July 28, 1988 made in the petitioner''s 1986 writ petition never took away her right available u/s 49, and hence the petitioner was entitled to exercise her right once the acquisition proceedings were initiated by issuing the section 4 notification dated July 27, 1989.

In my view, it is not correct to say that in view of the order dated July 28, 1988 the petitioner lost her right available u/s 49. Her acceptance of the order does not mean that she consciously waived her statutory right u/s 49. The occasion to exercise the right did not arise on or before July 28, 1988. It arose only after August 7, 1989 when the section 4 notification was published. A right is said to be waived only when the person concerned, supposed to exercise it, consciously chooses not to exercise it. Here immediately after the occasion arose the petitioner duly exercised her right. Besides, today the issue is hit by the principle of constructive res judicata, for the respondents did not seek its adjudication in W.P. No.953 of 1990.

In this case the principal question is what is the nature and effect of the impugned decision of the collector dated June 12, 2001. It is not a decision given by the collector in exercise of his any statutory power available under any provision of the Land Acquisition Act, 1894. He has given the decision just in compliance with the order of this court dated May 15, 2001. Hence there can be no doubt that the impugned decision is not a statutory order or decision.

For ascertaining the effect of the decision it is necessary to ascertain what is the effect of the order of this Court dated May 15, 2001. According to Mr. Ali, by this order the section 6 declaration dated January 10, 1990 was impliedly set aside. This is a case argued only at the bar. In her writ petition the petitioner has questioned the validity of the section 6 declaration dated January 10, 1990, and she has prayed for the following relief:

(c) A Writ of and/or in the nature of Certiorari be issued directing the respondents through their servants and agents to certify and transmit to this Hon''ble Court records and documents relating to the Notices dated 27th July, 1989; 10th January, 1990; 13th March, 1992 and 13th March, 1992, being annexures "C", "G", "J" and "K" annexured hereinbefore, so that upon consideration thereof the same may be quashed and conscionable justice done;

Therefore, it is the petitioner''s own case that the section 6 declaration is still in force, and according to her it should be set aside by an order made in the present writ petition. Hence it is evident that Mr Ali has argued a case contrary to the one stated by the petitioner in her pleadings.

The decision in Debabrata Tarafder Vs. Biraj Mohan Bardhan, cited by Mr Ali is of no assistance. In that case the Court while allowing the plaintiff''s prayer for specific performance of the contract containing a clause for delivery of possession said nothing about the prayer for possession. Question arose whether in execution of the decree prayer for possession could be made. Answering the question in the affirmative, the Division Bench held that when by the decree the defendant was directed to sell the suit property to the plaintiff in terms of the agreement, the decree necessarily embodied a mandate to fulfil all the terms including the term for delivery of possession.

True it is that in the case between the parties here by the order dated May 15, 2001 this Court directed the collector to consider and dispose of the petitioner''s section 5A. But the order was made without setting aside the collector''s section 5A report enforcing which the section 6 declaration dated January 10, 1990 was made, and at the same time saying that till eight weeks from the date of communication of the order the respondents in W.P.No.953 of 1990 should not take any coercive measure against the petitioner. This direction clearly implies that the section 6 declaration questioned in W.P.No.953 of 1990 was not set aside by the order dated May 15, 2001, for the respondents in that writ petition could take any coercive measure against the petitioner only if there was a subsisting section 6 declaration in the land acquisition proceedings. Hence the argument that by the order dated May 15, 2001 the section 6 declaration was set aside is fallacious.

After remaining unsuccessful in the previous writ petition as to her challenge to the section 6 declaration dated January 10, 1990, and after accepting the order of this Court dated May 15, 2001 disposing of that writ petition by just directing the collector to give an inconsequential, non-statutory decision in the section 5A objections which had been disposed of before section 49A was inserted and after hearing the petitioner, I am unable to see how she can again challenge the same section 6 declaration in the present writ petition. The issue is clearly hit by the principles of res judicata and constructive res judicata. Today, even if it is found that the decision dated June 12, 2001 cannot be sustained, the section 6 declaration sustained in the previous case cannot be set aside in the present case. Nor is the Government under any obligation today to make a fresh section 6 declaration on the basis of the decision of the collector dated June 12, 2001.

The decision of the collector dated June 12, 2001 has not touched any existing right of the petitioner or created any obligation of the government concerning the section 6 declaration. A report of the collector made u/s 5A after disposing of objections filed by a person interested in the land is to be used chiefly for making a section 6 declaration. And in the instant case, the report on the basis whereof the section 6 declaration dated January 10, 1990 was made is still in force, because that was not set aside by the order of this Court dated May 15, 2001. Section 49A was inserted with effect from February 14, 1990. Hence applying it the section 5A report could not be set aside. Under these circumstances, I am unable to see how the decision of the collector dated June 12, 2001 can be made a subject of judicial review by the writ Court. In my opinion, the petitioner is not entitled to get any relief in the present case.

For these reasons, the writ petition is dismissed. The application (G.A.No.1742 of 2007) filed by the petitioner seeking certain reliefs with respect to rent compensation shall be deemed to be disposed of. She will be at liberty to raise the question of rent compensation before the collector and other forum in accordance with law. There shall be no order for costs.

Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of this tile by the department concerned.