Punalur Paper Mills Ltd. vs Land Acquisition Collector

Chinnasamy Swaminathan Karnan, J.—These writ petitions have been filed under Article 226 of the Constitution of India for assailing the requistion and the impugned notification dated August 31, 2000 for acquisition of about 1350 sq. ft. area on the fifth floor of premises No.13, Nellie Sengupta Sarani, Kolkata 700 087 (in short, "said premises").

Factual matrix of the case is that the said premises belonging to the petitioner No.1 was requisitioned by the Land Acquisition Collector for the Office purpose of West Bengal Sugar Industries Development Corporation Ltd, on August 16, 1973. The said company West Bengal Sugar Industries is respondent No.4 in W.P. No.1211 of 2000 and respondent No.5 in W.P. No.3006 of 2000. For the sake of convenience, the said company, the requiring body, is hereinafter referred to as the respondent No.5.

The said requisition expired after 25 years as per the provisions of Section 10B of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 and the State and/or the respondent No.5 was statutorily obliged to vacate and hand over possession of the said premises to the petitioner company.

W.P. No. 1211 of 2000 was filed for a command on the respondents to vacate and hand over possession to the petitioner company.

By continuing in the possession, the State issued notification under section 4 along with section 17 of the Land Acquisition Act, 1894 on August 31, 2000 for acquisition of the same premises.

W.P. No. 3006 of 2000 was filed by the petitioners challenging the said notification issued under section 4 read with section 17 of the Land Acquisition Act and the acquisition proceeding.

With the consent of the parties, both the writ petitions are taken up for hearing together.

Preliminary objection as to maintainability of the writ petition has been raised by Mr. Sadananda Ganguly, Learned Additional Government Pleader appearing for the State in the Affidavit-in-Opposition affirmed on December 21, 2016.

The following preliminary objection as to maintainability of the writ petition is taken up first.

One Kunal Dalmia, the petitioner No.2, who has affirmed the writ petition was not authorised to do so in asmuch as no affidavit of competency was filed and no board resolution was disclosed. The respondents relied upon an unreported judgment dated 12.02.2015.

Kunal Dalmia, the petitioner No.2 sold his shares in the petitioner No.1 in the year 2010 and also ceased to be a director of the petitioner No.1 and cannot remain to be a petitioner. The writ petition is not supported by any new director.

The Hon''ble Bombay High Court had appointed receiver from 1986 till 2010 against the petitioner No.1 in an application filed by ICICI Bank and no leave of the Hon''ble Bombay High Court was taken before filing the present writ petitions, which are not maintainable.

The petitioner No.1 was and still is under BIFR and hence, the writ petitions are not maintainable.

Mr. Shyamal Sarkar,learned Senior Advocate appearing for the writ petitioners submitted that the preliminary objections raised by the respondents are frivolous and a ploy to avoid hearing on merits that too was raised in their Affidavit-in-Opposition filed on 21st December, 2016, that is 16 years after filing of the writ petition.

With respect to the first objection, the learned advocate for the petitioner showed the Affidavit-of-Competency from the court records and further drew the attention of this Court on a true copy of the extract of the resolution of the Board of Directors of the petitioner No.1 dated March 22, 2000 annexed to the Affidavit-in-Reply filed by the petitioners (affirmed on January 3, 2017) and also produced original of the extract of the resolution of the Board of Directors in the Court.

On scrutiny of the records, I find that the Affidavit-of-Competency is on record and the true copy of the extract of the Board Resolution is also annexed to the Affidavit-in-Reply. Therefore, I find that this preliminary objection raised by the respondents is devoid of merit and the same is rejected.

With respect to the second objection, the learned Sr. advocate appearing for the petitioner submitted that the property belongs to the petitioner No.1 Company and the petitioner No.1 alone can maintain the writ petition. The respondents do not dispute this proposition. Even if we ignore the petitioner no 2, the writ petition is maintainable.

The learned Sr. Advocate for the petitioner submitted that though Mr. Kunal Dalmia has sold his shares in the petitioner company in the year 2010, he has been given a power to pursue the case by the petitioner No.1 Company. By a Board Resolution taken on 19th October 2011, extract whereof is annexed at page 21 of the Affidavit-in-Reply affirmed on behalf of the petitioners on January 3, 2017, the present Board of Directors of the petitioner No.1 has authorised the Chairman and Director of the petitioner No.1, one T.K. Sundaresan also known as Sundaresan Thotathil Kunjukrishnan to execute a Power of Attorney in favor of Kunal Dalmia and Ranoj Roy Chowdhury to act on behalf of the petitioner No.1. In compliance with the said Board Resolution, the said Mr. T.K. Sundaresan has granted a Power of Attorney dated 21st November 2011 to Kunal Dalmia and Ranoj Roy Chowdhury to act solely or jointly (annexed at page 22 of the Affidavit-in-Reply affirmed on January 3, 2017). Ranoj Roy Chowdhury had the authority on behalf of the company to represent the company duly authorised by the Board of Directors. Therefore, the affidavits filed by Ranoj Roy Chowdhury on behalf of the petitioner No.1 were duly authorised. In a writ petition, it is not necessary for all the directors of the petitioner company to be present in the Court.

From the records, I find that there is no dispute that the property belongs to the petitioner No.1. Since acquisition proceedings have been challenged being arbitrary and unreasonable and in violation of Article 14 of the Constitution of India, the petitioner No.1 alone can maintain the writ petition. It is not the case of the respondents that at the time of filing of the writ petition, the petitioner No.2 was not a shareholder and director of the petitioner No.1. Their case is that he sold his shares in the year 2010. Therefore, on the date of filing of the writ petition, there was no infirmity. In my opinion, the principles of Order 22, Rule 10 of the Code of Civil Procedure will apply and the power of attorney holder for the petitioner company can continue the lis. I refer a decision reported in (1996) 6 SCC 660 (United Bank of India v. Naresh Kumar & Ors.). Paragraphs 9 and 10 of the said decision is reproduced below:-

"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter would not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.

It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6, Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29, Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation, the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation�.." I am of the view that on this flimsy ground the petitioner Company cannot be non-suited. A wrong has been alleged against the properties of the Company and even, a shareholder can bring the illegalities to the notice of the Court. No relief has been claimed in favour of the petitioner No.2. The unreported judgement cited by Mr. Ganguly has no application in the present case as the extract of Board Resolution is disclosed in the affidavit-in-reply dated 3.1.2017 filed by the petitioners. This objection is also devoid of any merit and same is rejected.

On the third objection, Mr. Sarkar submitted that the alleged objection as to receiver is misconceived. No receiver was appointed over the petitioner No. 1 Company or the property in question, i.e. 13, Nellie Sengupta Sarani, Kolkata 700 087 at any point of time. The burden of proof is on the respondents and no document has been disclosed to that effect. In any event, such allegation is self-defeating and if the company or the property in question was under Receiver, the purported acquisition was also illegal. The respondents have admitted that the receiver was discharged in 2010. Therefore, the objection as to receiver is misconceived and not tenable in fact or in law.

I agree to the contentions of the petitioners that the objection as to necessity of obtaining leave due to appointment of receiver is also devoid of merit. The respondents have not disclosed any document to prove that any receiver was in actual physical possession of the said premises No.13, Nellie Sengupta Sarani and therefore, no leave was necessary. Admittedly, there was no receiver over any assets of the petitioner company after 2010.The contention of the respondents on this ground is devoid of any merit and is rejected.

On the fourth objection raised by the respondents, Mr. Sarkar appearing for the petitioners submitted that when a proceeding is pending before BIFR in respect of a company, it does not prohibit the company from protecting its rights and properties. Mr. Sarkar submitted that on the contrary, section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, inter alia, provides that no proceeding for the winding up of the industrial company or for execution, distress or the like against the properties of the industrial company shall lie or be proceeded with, except with the consent of the BIFR or AAIFR.

I agree with the submissions of the petitioners and hold that assuming any proceeding in respect of the petitioner No.1 is pending before BIFR or AAIFR, it will not be a bar for the petitioner No.1 to challenge acquisition of its property. Even if any proceeding is pending before BIFR in respect of the petitioner No.1, even then the writ petition is maintainable as there is no bar. This objection by the respondents is also devoid of merit and is rejected.

Mr. Sarkar, learned Senior Advocate appearing for the petitioners also submitted that the writ petitions were filed in the year 2000 and none of these preliminary objections were raised by State or the requiring body. The respondents are estopped and precluded from taking these objections after 16 years. The alleged preliminary objections are afterthought and should not be considered at all. The petitioners rely on the following decisions:-

1999(1) Calcutta Law Journal 538 para 9

2010(1) CHN 673 para 21

Since I have dealt with and rejected all the preliminary objections raised by the respondents, it is not necessary to deal with this submission of the petitioners on maintainability, though the ratio of law laid down in the judgements cited by the petitioners are binding on me and I fully agree with the submission.

The submissions made by the petitioners, on merit, are as follows:-

On 16.8.1973 a portion of fifth floor of 13, Lindsay Street, Kolkata, measuring about 1350 Sq.Ft. was requisitioned by the Government of West Bengal under West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (in short, "1947 Act").

On 20.4.1998, the Managing Director of the respondent No.5 wrote to the Principal Secretary to the Government of West Bengal that requisition was made on 16.8.1973 and Land Acquisition Collector handed over the vacant possession on 22.8.1973 to Commerce and Industries Department, who in turn handed over possession to the respondent No.5. It was recorded that it was ascertained from the Land Acquisition Collector that there is no provision to re-requisition the premises and the requisitioning body has to vacate possession after completion of 25 years of requisition. It was further advised to send proposal for acquisition for initiating acquisition proceeding. However, this method may involve a huge amount of money towards making provision of compensation payment and also involve considerable time to maintain procedural formalities. Since the respondent No.5 has to vacate possession in August 1998, it was requested that this problem may be solved by providing them a suitable accommodation in any Government building on rental basis (page 24 of affidavit affirmed by the respondent on 13.11.2000). It is clear that requiring body did not intend to acquire the said premises since huge amount of money towards compensation was to be paid and hence wanted an alternative accommodation in a Government building.

On August 11, 1998 the Secretary, Commerce and Industries Department, wrote to Secretary, Land and Land Reforms Department to start acquisition proceedings, inter alia, for the area occupied by the respondent No.5 in the third floor (it should be fifth floor) of 13, Nellie Sengupta Sarani (page 19 of affidavit by respondent No.5 affirmed on 13.11.2000). On 16.8.1998, the requisition made on 16.8.1973 lapsed under section 10B of the 1947 Act. On 21.8.1998, the Secretary, Government of West Bengal issued a letter to the First Land Acquisition Collector requesting to start LA proceedings, inter alia, in respect of 1368 Sq.Ft. in the fifth floor. It was recorded that the premises was requisitioned and vacant possession handed over on 22.8.1973. In view of that, it was directed to serve de-requisition notice to the occupiers as per norms simultaneously (page 21 of affidavit filed by the respondent on 13.11.2000). The Land Acquisition Collector had issued letters dated 7.9.1998, 22.9.1998, 25.2.1999 and 20.1.2000 to the respondent No.5 to send proposal for acquisition.

It is the grievance of the petitioners that even after requisition had lapsed in August 1998 and the respondent No.5 was aware of the same and the Land Acquisition Collector directed to send de-requisition notice to the occupiers, the respondent No.5 did not vacate the premises though advised by the Land Acquisition Collector by his letter dated 21.8.1998 to vacate the premises. The first writ petition being W.P. No.1211 of 2000 was filed by the petitioners to get back the possession.

When the above referred writ petition was pending and the possession was also with the respondent, the Land Acquisition Collector issued a notification dated 31.8.2000 by invoking urgency provision under section 4 read with section 17 of the Land Acquisition Act, 1894 to initiate acquisition proceeding of the said premises. This notification was impugned in the W.P. No.3006 of 2000, filed in September 2000.

Mr. Sarkar for the petitioner advanced the following arguments:-

There was no urgency at all and invocation of section 17 was bad which render the notification under section 4 read with section 17 dated 31.8.2000 illegal and is liable to be set aside. While explaining why there was no urgency, Mr. Sarkar made the following submissions:-

(a) Section 17 is an exceptional and extraordinary power whereby enquiry under section 5A is dispensed with, that is, a citizen is deprived of his property without any opportunity of hearing. The urgency provisions can be invoked only if even small delay of few weeks or months in taking possession, may frustrate the public purpose for which the land is sought to be acquired. Section 17 can be invoked in an unforeseen emergency. Such power depriving a citizen of his property without the sanction of law � Article 300A and the legal rights, is not a routine power. When a challenge is thrown, the State must prove that the time of few weeks or months likely to be taken in conducting enquiry under section 5A would frustrate the public purpose for which the land is proposed to be acquired, that is, taking possession of the property could not wait even few weeks or months. None of those preconditions for invoking section 17 was fulfilled in the present case. There was no justification before the State to invoke section 17 and without application of mind.

(b) The premises was requisitioned on 16.8.1973 and since then the respondent No.5 was in possession. From the letter dated 20.4.1998, it is apparent that the respondent No.5 was aware beforehand that the requisition will expire in August 1998. The respondent No.5 was in possession from 1973 to 1998 and had sufficient time to make alternative accommodation and the urgency provision of section 17 of the LA Act could not be invoked and provisions of section 5A could not be dispensed with. Mr. Sarkar submitted that application of urgency clause cannot be a substitute for the laxity on the part of the State administration in expeditiously initiating acquisition proceeding. Nor can it be invoked to make up for the delay caused only because of the lethargy on the part of the administration. Mr. Sarkar relied upon a decision reported in �

Delhi Reported Judgments 1991(Supp.) 317 (Banwarilal & Sons Pvt Ltd v. Union of India & Ors.).

Mr Sarkar submitted that this decision was upheld by the Hon''ble Supreme Court in the decisions reported in -

(2002) 7 SCC 98 (Union of India & Ors. v. Shakuntala Gupta), and (2004) 8 SCC 453 (Union of India v. Krishan Lal Arneja).

(c) Mr. Sarkar further submitted that from the letter dated 20.4.1998, it is apparent that the respondent No.5 was aware that it has to vacate the premises after 25 years of requisition, alternatively, to send proposal for acquisition. The State respondents in their affidavit affirmed on 21.12.2016 had stated that the proposal for acquisition of the premises was made on 21.8.1998. The delay of more than two years, between the proposal of acquisition, i.e. 21.8.1998 and the section 4 read with section 17 notification dated 31.8.2000, proves that there was no urgency. Dispensation of section 5A of the LA Act was bad, hence, the acquisition was illegal and unconstitutional. In this connection Mr. Sarkar relied upon the following decisions �

(2012) 2 SCC 327 [Darshan Lal Nagpal (dead) by LRs v. Government of NCT of Delhi and Ors.)], paragraphs 28, 36 and 37 thereof.

(2014) 13 SCC 721 (Prabhawati & Ors. v. State of Bihar & Ors)

The provisions of Section 17 of L A Act were not complied with. 80% of the compensation was not tendered or paid to the petitioners as mandated by sub-section (3A) of section 17. Possession was not taken as required under section 17, since compensation was not paid. Therefore for non-compliance of section 17, there was no acquisition in the eye of law at all.

The occupation of the State was wrongful and illegal since the requisition order came to an end on 16.8.1998. Since the urgency provision was invoked without any real urgency and there was gross delay of about 27 years in initiating acquisition proceeding, the acquisition proceeding was bad and illegal and liable to be set aside. Therefore, the State is in wrongful possession since 17.8.1998 to till handing over the possession to the petitioner No.1 and is liable to pay damages for such wrongful occupation. In such situations, as held in the Banwarilal Case [DRJ 1991 (Supp) 317] and upheld by Hon''ble Supreme Court (2002) 7 SCC 98 and (2004) 8 SCC 453, it is fit and proper that an Arbitrator be appointed to adjudicate the damages to be paid by the State Government and/or Land Acquisition Collector jointly and severally to the petitioner No.1. Mr. Sarkar submitted that this Hon''ble Court may appoint any retired Judge of this Hon''ble Court as Arbitrator and direct him to enter reference within a given period and to make an Award within three months thereafter. One time remuneration of the learned Arbitrator may also be fixed by this Hon''ble Court to be paid by the parties in equal shares.

Mr. Sadananda Ganguly, the Learned Additional Government Pleader appearing for the State referred to pages 10 and 25 of the affidavit affirmed on 21.12.2016 and submitted that by their letter dated 23.5.2001 requested the petitioner No.1 to take joint measurement, but the petitioner refused to cooperate to take measurement of the premises in question and therefore, the State could not tender or pay any compensation under section 17 or take any further steps towards acquisition.

Per contra, Mr. Shyamal Sarkar, learned senior advocate appearing for the petitioners in reply referred the affidavit filed by the State and pointed out that even according to the respondents, 7.7.2001 was the date fixed for joint inspection and on 23.5.2001, question of adjourning joint measurement did not and could not arise. The letter dated 23.5.2001 annexed in the affidavit filed by State clearly shows that the same is connected with another writ petition, i.e. W.P.No.3003 of 2000 relating to second floor of the said premises and has no way related with the present writ petition. The State respondent on oath has made a false statement and has sought to mislead this Hon''ble Court by annexing a document which is not related to the present writ petition.

This amounts to perjury and the writ petition should be allowed on this ground alone.

I have heard the parties at length. I have perused the various affidavits filed by the parties and the documents annexed thereto. I have also gone through the judgments cited by the parties.

In the case reported in 1991 (Supp.) Delhi Reported Judgments 317 (Banwarilal & Sons Pvt Ltd v. Union of India & Ors.), certain parts of a building was requisitioned by DDA under Requisitioning and Acquisition of Immoveable Property Act, 1952 on 13.3.1959. The said Act lapsed on 10.3.1987. On 6.3.1987, DDA issued a notification under section 4 read with section 17 of the Land Acquisition invoking urgency provisions. It was held as follows:-

"Para 8: ��..What is more objectionable is the fact that the building was already in occupation of the officers of Delhi Administration and the Administration knew that the Requisitioning and Acquisition of Immoveable Properties Act was to lapse on 10.3.1987.Thus, they had sufficient time to make alternate arrangement for the residence of their officers and there was no urgency whatsoever for invoking the provisions of Section 17(1). The provisions of Section 17(1) cannot be utilized to cover up the laxity or lethargy of the Administration to take appropriate steps in time for making available alternate accommodation for its officers."

On a perusal of the judgment reported in (2002) 7 SCC 98 [Union of India & Ors. v. Shakuntala Gupta (dead) by LRs], it appears that the above Banwarilal case was challenged before the Hon''ble Supreme Court, but the Special Leave Petition was dismissed on 21.3.1991. Another property covered by the same notification dated 6.3.1987 was challenged and the Hon''ble Delhi High Court by following Banwarilal''s case allowed the writ petition and the Special Leave Petition preferred was dismissed on 14.11.2000.

On a perusal of the decision reported in (2004) 8 SCC 453 (Union of India & Ors. v. Krishan Lal Arneja & Ors.), it appears that the same acquisition notice dated 6.3.1987 in respect of another property was challenged and the Hon''ble Delhi High Court by order dated 23.3.2002 allowed the writ petitions by following Banwarilal & Sons and Shakuntala Gupta''s case. The Hon''ble Supreme Court further emphasized the limitation on powers under section 17 or invocation of urgency provision. Paragraphs 16, 29 and 34 of the Report are reproduced below -

Para 16 - "Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor, i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily, depending on situations such as due to earthquake, flood or some specific time-bound project were the delay is likely to render the purpose nugatory or infructuous. A citizen''s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration.

Para 29 - "Having regard to the facts and circumstances and the material available on record, we are of the view that invocation of urgency clause was without justification and was untenable as held in Banwari Lal and Shakuntala Gupta. This Court in State of Punjab v. Gurdial Singh as to the use of emergency power under Section 17 of the Act has observed that: (SCC p.477, para 16)

"It is fundamental that compulsory taking of a man''s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power."

Para 34 - "����Hence it follows that order of appointment of arbitrator made in Shakuntala Gupta case was also upheld by this Court. The learned Single Judge passed the order in the writ petition appointing arbitrator to determine the damages payable by the Delhi Administration instead of making the petitioners to run to the civil court for that purpose after spending several years in the Court. In the impugned order, the Division Bench of the High Court has upheld the same. Since the order appointing arbitrator in the cases of Banwari Lal and Shakuntala Gupta is upheld by this Court, we have no good reason to take a different view. On the other hand, we are in respectful agreement with the same having regard to the facts and circumstances of the case."

The facts of the present case are similar to the above three decisions cited on behalf of the petitioners, namely, Banwari Lal & Sons case, Shakuntala Gupta case and Krishan Lal Arneja case. The premises was under requisition since 16.8.1973 and the respondent No.5 in its letter dated 20.4.1998 (at page 24 of Affidavit-in-Opposition affirmed on 13.11.2000) admitted that they have to vacate the said premises in August 1998 and did not want to put any proposal for acquisition as it would involve huge amount of money towards compensation and requested for an alternative accommodation in a Government building. The respondent No. 5 was aware that it is liable to vacate the premises in August 1998. From August 1973 the respondents were continuously in possession. There was no sudden or urgent need to acquire the premises by invoking section 17 or to take possession since the respondent No. 5 was already in possession. Invoking of urgency clause cannot be a substitute for the laxity, lethargy or lack of care on the part of the State administration. No compensation as required under section 17(3A) of the Land Acquisition Act was paid or deposited in accordance with section 31 and since possession was not taken under section 17, there was no acquisition at all in the eye of law by the respondents. I hold that in view of the law laid down in the above judgments, there was no urgency or material to invoke section 17 of the Land Acquisition Act, 1894. Invocation of section 4 read with section 17 was without justification and the action of the State respondents was ultra vires and the acquisition proceeding was bad and illegal and is hereby set aside and quashed.

The notification under section 4 is also liable to be set aside on the grounds of delay between the proposal (21.8.1998) and the issuance of section 4 and section 17 notification dated 31.8.2000. There was a delay of two years in issuing the notice. There is no explanation for the delay to issue section 4 read with section 17 notification dated 31.08.2000. The decisions cited by the petitioners reported in (2012) 2 SCC 327 [Darshan Lal Nagpal (dead) by LRs v. Government of NCT of Delhi and Ors.)] and (2014) 13 SCC 721 (Prabhawati & Ors. v. State of Bihar & Ors) lay down the law and I am bound by the same. Therefore I hold that the notification issued under section 4 read with section 17 dated 31.8.2000 and/or the acquisition is bad, illegal and without justification and hereby set aside and quashed. The respondents shall hand over peaceful vacant possession of the portion of fifth floor of premises No.13, Nellie Sengupta Sarani, Kolkata 700 087 measuring 1350 sq.ft.within two months from the date of communication of this order.

Following the law laid down in the Banwarilal and the two Supreme Court decisions, upholding the same, I hold that the respondent State of West Bengal, and the First Land Acquisition Collector are liable to pay damages and/or compensation for the wrongful occupation of the 1350 sq. ft. in the fifth floor of premises No.13, Nellie Sengupta Sarani, Kolkata 700 087 jointly and severally from August 17, 1998 to till the possession is handed over back to the petitioner. After the expiry of 25 years of requisition period the petitioner is entitled to receive occupation charges for the period September, 1998 to till the possession is handed over back to the petitioner, which will be assessed by a Senior Civil Engineer (PWD) attached to the West Bengal Government and by a private Civil Engineer nominated by the petitioner within four months from the date of receipt of this order. The parties are free to adduce their evidence, if any before the Engineers which will be considered by the said Engineers while determining the damages. On the basis of their findings, the respondent shall pay the occupational charges thus assessed to the petitioner. The parties shall bear the remuneration payable to the Engineers equally.

The respondents are at liberty to initiate fresh acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013. However, this should not be construed as a direction of this Court.

Accordingly, the writ petitions being W.P. No. 1211 of 2000 and W.P. No. 3006 of 2000 are allowed.

The respondents are directed to handover peaceful vacant possession of the premises in question namely, portion of fifth floor of the premises No.13, Nellie Sengupta Sarani, Kolkata 700 087 measuring about 1350sq.ft. with in three months from the date of communication of this order to the petitioner No.1.

Photostat copy of this order be supplied to the learned counsel for the respective parties upon compliance of usual formalities.