# KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v. PRADIP KUMAR GHOSH & OTHERS

- **Citation:** [2017] 10 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 2017-10-24
- **Case number:** Civil Appeal No. 461 of2009
- **Bench:** Arun Mishra, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kolkata-metropolitan-development-authority-v-pradip-kumar-ghosh-others-31599
- **Pages:** 32

## Headnote

West Bengal Land (Requisition and Acquisition) Act, 1948:
B
ss. 3, 4 and 5 - Land acquisition, for development of Calcutta -
C
Property handed over to Development Corporation - Property
requisitioned in year 1979, by issuance of notification u!s. 3( I) -
Requisitioned continued for long for 14 years - Challenge to - In
writ petition,. Single Judge of the High Court by order dated
· 10.03.1993, did not quash notification issued u/s. 3( 1) but directed
the authorities to acquire the properties within 6 months and if the
D
authorities did not acquire the property within the time specified,
the Land Acquisition Collector to release the property under
requisition and restore the possession to the petitioner - Thereafter,
some delay in initiating the land acquisition proceedings - l5suance
of notification u!s. 4( /)(a) for acquisition of premises - However,
the Division Bench held that requisition ·u/s. 3( I) deemed to have
been lapsed, as such acquisition was illegal ~ Held: To enforce an
order it should be effective on date mandamus is sought to be enforced
- ft can be interdicted by another order or by statutory intervention
- By virtue of s. 6, until and unless r~lease order is passed and
E
F
delivery of possession pursuant thereto takes place, the requisition
would continue - In the instant case, court had not quashed the
order of requisition and has not ordered that on lapse of 6 months
period grallted for acquisition and further period of 6 months
property shall stand derequisitioned - Direction was issued to the
L.A.C. to release the property from requ45ition - There was no
G
automatic consequence of the de-requisition on lapse of specified
time - Thus, if the property had not been released u/s 6 obviously
the requisition continued and statutory power of acquisition could
have been exercised - Requisition continued until the dot!' <if
acquisition notification and there was no time limit for i11itiMin
229
'I
230
A
B
SUPREME COURT REPORTS
[2017] JO S.C.R.
acquisition - It is not a case that order was void but statutory power
has been exercised - As statutory power has been exercised, the
statutory action is not stifled by the order of the court - Thus, the
Division Bench of the High Court erred in law in quashing the
acquisition - Order passed by the Division Bench set aside and
that of the Single Bench is restored.
Allowing the appeal, the Court
HELD: 1.1 It is apparent from ss. 3 and 4 of the West Bengal
Land (Requisition and Acquisition) Act, 1948 that the property
that is under re<1uisition can only be acquired. Requisition is a
c sine qua non for a property as on the date when notification under
section 4 is issued. Section 3 had 'been omitted w.e.f. 1.4.1994.
However the property was requisitioned before the provision
was omitted. It is apparent that Section 6 requires an order to be
passed by the State Government for release of the property from
requisition. Government has to conduct an inquiry if any,
D considered necessary then the release order has to be passed
and possession of the property has to be delivered under section
6. Section 6(2) also provides that even if possession has been
delivered pursuant to a release order, the same shall not prejudice
any right in respect of such land, if any other person may be
E entitled by due process of law to enforce against the person to
whom possession of land was delivered. In the instant case, the
High Court has not directed delivery of possession and
possession had not been handed over. Thus, by virtue of the
provisions contained in section 6, until and unless release order
is passed and delivery of possession pursuant thereto takes place,
F the requisition would continue. [Paras 11-13] [243-H; 244-A, GH; 245-A-B]
G
Collector of Kamrup & Ors. v. Kamakhya Ram Barooah
etc. AIR 1965 SC 1301; H.D. Vora v. State of
Maharashtra & Ors. (1984) 2 SCC 337 : [1984] 2 SCR
693; Jiwani Kumar Paraki v. First land Acquisition
Collector, Calcutta & Ors. (1984) 4 SCC 612 : [1985]
1 SCR 68

## Text

_Characters 0–39,969 of 74,113. This is a partial read: ask again with offset=39969 for what follows._

[2017] 10 S.C.R. 229
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY
v.
PRADIP KUMAR GHOSH & OTHERS
(Civil Appeal No. 461 of2009)
OCTOBER 24, 2017
[ARUN MISHRA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
West Bengal Land (Requisition and Acquisition) Act, 1948:
B
ss. 3, 4 and 5 - Land acquisition, for development of Calcutta -
C
Property handed over to Development Corporation - Property
requisitioned in year 1979, by issuance of notification u!s. 3( I) -
Requisitioned continued for long for 14 years - Challenge to - In
writ petition,. Single Judge of the High Court by order dated
· 10.03.1993, did not quash notification issued u/s. 3( 1) but directed
the authorities to acquire the properties within 6 months and if the
D
authorities did not acquire the property within the time specified,
the Land Acquisition Collector to release the property under
requisition and restore the possession to the petitioner - Thereafter,
some delay in initiating the land acquisition proceedings - l5suance
of notification u!s. 4( /)(a) for acquisition of premises - However,
the Division Bench held that requisition ·u/s. 3( I) deemed to have
been lapsed, as such acquisition was illegal ~ Held: To enforce an
order it should be effective on date mandamus is sought to be enforced
- ft can be interdicted by another order or by statutory intervention
- By virtue of s. 6, until and unless r~lease order is passed and
E
F
delivery of possession pursuant thereto takes place, the requisition
would continue - In the instant case, court had not quashed the
order of requisition and has not ordered that on lapse of 6 months
period grallted for acquisition and further period of 6 months
property shall stand derequisitioned - Direction was issued to the
L.A.C. to release the property from requ45ition - There was no
G
automatic consequence of the de-requisition on lapse of specified
time - Thus, if the property had not been released u/s 6 obviously
the requisition continued and statutory power of acquisition could
have been exercised - Requisition continued until the dot!' <if
acquisition notification and there was no time limit for i11itiMin
229
'I
230
A
B
SUPREME COURT REPORTS
[2017] JO S.C.R.
acquisition - It is not a case that order was void but statutory power
has been exercised - As statutory power has been exercised, the
statutory action is not stifled by the order of the court - Thus, the
Division Bench of the High Court erred in law in quashing the
acquisition - Order passed by the Division Bench set aside and
that of the Single Bench is restored.
Allowing the appeal, the Court
HELD: 1.1 It is apparent from ss. 3 and 4 of the West Bengal
Land (Requisition and Acquisition) Act, 1948 that the property
that is under re<1uisition can only be acquired. Requisition is a
c sine qua non for a property as on the date when notification under
section 4 is issued. Section 3 had 'been omitted w.e.f. 1.4.1994.
However the property was requisitioned before the provision
was omitted. It is apparent that Section 6 requires an order to be
passed by the State Government for release of the property from
requisition. Government has to conduct an inquiry if any,
D considered necessary then the release order has to be passed
and possession of the property has to be delivered under section
6. Section 6(2) also provides that even if possession has been
delivered pursuant to a release order, the same shall not prejudice
any right in respect of such land, if any other person may be
E entitled by due process of law to enforce against the person to
whom possession of land was delivered. In the instant case, the
High Court has not directed delivery of possession and
possession had not been handed over. Thus, by virtue of the
provisions contained in section 6, until and unless release order
is passed and delivery of possession pursuant thereto takes place,
F the requisition would continue. [Paras 11-13] [243-H; 244-A, GH; 245-A-B]
G
Collector of Kamrup & Ors. v. Kamakhya Ram Barooah
etc. AIR 1965 SC 1301; H.D. Vora v. State of
Maharashtra & Ors. (1984) 2 SCC 337 : [1984] 2 SCR
693; Jiwani Kumar Paraki v. First land Acquisition
Collector, Calcutta & Ors. (1984) 4 SCC 612 : [1985]
1 SCR 686; Grahak Sanstha Manch & Ors. v. State of
Maharashtra (1994) 4 SCC 192 - referred to.
1.2 To enforce an order it should be effective on date
H mandamus is sought to be enforced. H can be interdicted by
KOLKATA METROPOLITAN DEVEWPMENT AUTHORITY v.
231
PRADIP KUMAR GHOSH & ORS.
another order or by statutory intervention. [Para 19] [249-D]
A
Comptroller and Auditor-Gerreral of India, Gian
Prakash, New Delhi & Am: v. K.S. Jagannathan & Anr.
(1986) 2 SCC 679 : [1986] 2 SCR 17; Andi Mukta
Sadguru Shree Muktajee Va11das Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani
& Ors. (1989) 2 SCC 691 : {1989] 2 SCR 697:
Mansukhlal Vithaldas Chauhan v. State of Gujarat
(1997) 7 SCC 622 : [1997] 3 Suppl. SCR 705; State of
A.P. & Ors. F. Raja Shri V.S.K. Krishna Yachandra
Bahadur Varuh Rajah of Venkatagiri & 01:1·. (2002) 4
SCC 660; Director of Settlements, A.P. & Ors. \'. M.R.
Apparao & Anr. (2002) 4 SCC 638 : [2002] 2 SCR
661 - referred to.
B
c
1.3 In the instant case, the nature of mandamus that has
been issued on 10.9.1993 has to be considered.· Firstly the court
had not quashed the order of requisition. Apart from that, the D
court has not. ordered that on lapse of 6 months period granted
for acquisition and further period of 6 months property shall stand
derequisitioned. The direction was issued to the L.A.C. to release
the property in question from requisition. It was not an automatic
consequence of the command issued. Thus, if the property had
E
not been released under section 6 obviously the re<1uisition
continued and statutory power of acquisition could have IJeen
exercised. [Para 221 [254-C-E]
1.4 In the instant case, as the High Court has not quashed
the notification under section 3 and till derequisition was actually
F
made, once statutory power had been exercised under section 4
which could be exercised when requisition continues and that· as
a matter of fact, continued as the court had not culled out the
consequence, there was. no automatic consequence of the derequisition on lapse of specified time. Proceedings under section
6 were required to be undertaken. No order of release was passed.
G
Requisition continned until the date of acquisition notification
and there was no time limit for initiating acquisition under the
Act. The statutory provision would not be stultified by the
command so issued by the High Court in view of the decision of
this Court in Jacob case. Though, Single Judge has opined that H
232
SUPREME COURT REPORTS
[2017] IO S.C.R.
A
considering the order, it would be a case of violation of the order
to be dealt with under the Contempt of Courts Act. However,
when statutory provision had been invoked for acquisition, there
is no question of applicability of contempt of court also as laid
down in Jt1coh '.5 case. [Para 241 [257-C-El
B
c
D
First Land Acquisition Collector & Ors. v. Nirodhi
Prakash Gangoli & Anr. (2002) 4 SCC 160 : [20021 2
SCR 326; Ravi S. Naik v. Union of India & Ors. (1994)
Supp 2 SCC 641 : [19941 1 SCR 754; Ma11ohar Lal v.
Ugrasen (2010) 11 SCC 557 : (2010] 7 SCR 346 -
referred to.
General Manage1; Department of Telecomm1111ications,
Thiruvananthapuram v. Jacob slo Kochuvarkey Kallimh
(dead) by LRs. & Ors. (2003) 9 SCC 662 : [2003] 3
SCR 214 - relied on.
Patasi Devi v. State of Hw:vana (2012) 9 SCC 503 :
[2012] 7 SCR 387 - distinguished.
1.5 It was submitted that even if the order is void, it is
required to be so declared by the compl'tent forum. It is not
permissible to ignore it. It is not the case that the order was void
but statutory power has been exercised, considering the nature
E of command that has been issued in the previous order dated
10.9.1993. [Para 26] 1257-H, 259-C]
F
Krishnadevi Malchand Kamathia & Ors. v. Bombay
Environmental Action Group & Ors. (2011) 3 SCC 363 :
12011 J 3 SCR 291 - held inapplicable.
1.6 There is no question of applicability of res judicata in
the instant case. As statutory power has been exercised the
statutory action is not stifled by the order of the court. It was
stated that the land was proposed to be sold but the appellants
had made it clear that they are not going to sell the property.
G
[Para 27] (259-F-G]
Mohan/al Goenka v. Benoy Krishna Mukherjee & Ors.
AIR 1953 SC 65 : (1953] SCR 377; Municipal
Corporation of Greater Bombay v. Industrial
Development Investment Co. Pvt. Ltd. & Ors. (1996) 11
H
SCC 501 : [1996] 5 Suppl. SCR 551 - referred to.
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
233
PRADIP KUMAR GHOSH & ORS.
1.7 The Division Bench of the High Court erred in law· in
A
quashing the ac<1uisition. The order passed by the Division Bench
of the High Court is set aside and that of the Single Bench is
restored. [Para 28] [260-A-B]
Collector of Kamrup & Ors.v. Kamakhya Ram Barooah
etc. AIR 1965 SC 1301 - referred to.
B
Case Law Reference
AIR 1965 SC 1301
referred to
Para4
[1984] 2 SCR 693
referred to
Para 7
[1985] 1 S.CR 686
referred to
Paras
c
(1994) 4 sec 192
referred to
Para 9
[1986] 2 SCR 17
referred to
Para 16
[1989] 2 SCR 697
referred to
Para 16
[1997] 3 Suppl. SCR 705
referred to
Para 17
D
(2002) 4 sec 660
referred to
Para 18
[2002] 2 SCR 661
referred to
Para 18
[2002] 2 SCR 326
referred to
Para 20
[1994] l SCR 754
referred to
Para 21
E
[2010] 7 SCR 346
referred to
Para 21
[2003] 3 SCR 214
relied on
Para 23
[2012] 7 SCR 387
distinguish eel
Para 25
F
[2011] 3 SCR 291
held inapplicable
Para 26
[1953] SCR 377
referred to
Para 27
[1996] 5 Suppl. SCR 551
referred to
Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 461' of G
2009.
From the Judgment and Order dated 27 .04.2007 of the High Court
of Calcutta in F. M.A. No. 694 of 2000.
Mukul Rohtagi, Ravindra Srivastava, Sr. Ad vs., Ms. Anindita Gupta,
. Rajesh Srivastava, Soumitra G. Chaudhuri, Chanchal Kumar Ganguli,
H
234
SUPREME COURT REPORTS
[~017] 10 S.C.R.
A Pradip K. Tarafdar, Mrs. Asha Gopalan Nair, Ms. Nivedita Nair, Advs.
for the appearing parties.
B
c
The Judgment of the Court was ·delivered by
ARUN MISHRA, J. 1. Aggrieved by the quashing of land
acquisition proceedings initiated under the West Bengal Land (Requisition
and Acquisition) Act, 1948 (hereinafter referred to as "the Act") notice
under section 4(1 )(a) was published in the Gazette on 14.10.1996 and
also notice under section 5 of the Act. The property in question had been
requisitioned under the provisions of the Act by the issuance of notification
under section 3(1) since requisition continued for long for 14 years. It
was questioned by filing a writ petition i.e. CR 15177 (W) of 1979 disposed
ofon 10.9.1993: The High Court of Calcutta did not quash the notification
issued under section 3(1 ), passed an order directing the concerned
authorities to acquire the properties in question if so desired within a
period of 6 months from the date of communication of order and if the
authorities did not acquire the property within the time specified the
D Land Acquisition Collector was directed to release the property under
requisition and restore possession of the same to the writ petitioner.
E
F
G
2. Thereafter there was some delay in initiating the land acquisition
proceedings. The notification under section 4( 1 )(a) of the Act had been
issued on 14.10.1996 for the acquisition of premises No. I I, Sarat Bose
Road, Kolkata. Questioning the same, fresh petition - Writ Petition
No.4361 (W) of 1997 was filed. Award was passed determining the
compensation in a sum ofRs.7,69,950/-. The writ petition was dismissed
by the Single Bench vide order dated 11.3.1998. It was held by the
Single Bench that in case the order dated 10.9.1993 was not complied,
by the concerned authorities they would be liable for contempt of court
and may be dealt with in accordance with law in the contempt
proceedings, but the mere fact that possession of the property was not
restored, in view of the order passed on I 0.9 .1993 the same would not
disentitle the authority in taking steps for acquisition of the property.
3. As against dismissal of the writ petition, appeal MATNo.1165/
1998 had been preferred before the Division Bench. The Division Bench
has allowed the same vide impugned judgment and order. The Government
of West Bengal had conveyed the property by registered deed of
conveyance on 21.12.2004 to Kolkata Metropolitan Development
Authority for development. A Division Bench of the High Court has
H allowed the appeal. It was held that requisition unde1 section 3( 1) of the
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
235
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
Act deemed to have been lapsed, as such the acquisition was illegal.
A
Aggrieved thereby the appeal has been preferred by the Kolkata
Metropolitan Development Authority.
4. It was urged on behalf of the appellants that the High Court
did not quash the notification relating to requisition issued under section
3( 1) of the Act, but only issued a direction that the requisition should not
B
continue for an indefinite period. Thus either the land was to be acquired
or it should have been released from the requisition. The requisition
continued and a notification under section 4(1 )(a) of the Act had been
issued. Award has been passed. Thus the property has vested in the
State Government. The order of reacquisition did not lapse. The
C
acquisition made was lawful. The ratio of Collector of Kamrup & Ors. v.
Kamakhya Ram Barooah etc. AIR 1965 SC 1301 was not attracted.
The only question for consideration was the effect of the order-dated
10.9.1993. The requisition came to an end on the issuance of notification
under secciun 4(1) of the Act. There was no embargo created by orders
of the court to exercise statutory power for the purpose of acquisition.
D
5. Shri Mukul Rohtagi, learned senior counsel appearing for the
respondents urged that the property had continued for a period.of more
than 14 years in requisition. Thus the High Court has passed an order on
10.9.1993 that the requisition was illegal and impermissible. A direction
was issued to release the property in case the property was not acquired
E
within the time specified. As the State Government had not acted under
the Act, it was a gross dereliction of statutory duty not to release the
property. The requisition came to an end and under the provisions of the
Act property under requisition could have been acquired. It was a precondition that the property should be under requisition for the purpose of
acquisition. Power of the High Court to issue mandamus is wide and
F
untrammeled. As the State Government failed to act as per the mandamus
it was not open to acquiring the property later on. The consequence of
not acquiring the property within the time specified was the release of
the property and to restore the possession. The LAO had no option but
to restore the same within 6 months as stipulated in the order passed in
G
1993. The requisition came to an end on the lapse of 6 months period on
· 10.3.1994 and a further period of 6 months also expired on 10.9.1994
during which period property was to be released. Under no circumstances,
requisition would continue after that period. In view of the decision in
Collector of Kamrup (supra) the property did not remain under
H
\,
236
A
B
SUPREME COURT REPORTS
[2017] 10 S.C.R.
acquisition, as such notification for acquisition under section 4 (1) (a)
was clearly ultra vires of the powers. It was also contended that the
property was not used for the purpose it was required. As the appellant
had offered the property for commercial sale in the market by inviting
public bids, the acquisition was wholly unjustified and deserves to be
quashed. The notification under section 4 of the Act and notice under
section 5 was issued in violation of orders of the court-dated 10.9.1993.
The notification for acquisition was a· nullity and void ab-initio being
contemptuous to the order passed by the High Court. As observed in
Ravi S. Naik v. Union of India & Or~. (1994) Supp 2 SCC 641 and
Manolwr Lal (dead) by LRs. v. Ugrasen (dead) by LRs. & Ors.
C (2010) 11SCC557 the acquisition was colourable and mala fide exercise
of power. Even an erroneous decision operates as res j11dicata between
the parties as court's order of 1993 was binding. Even if an order is void
the parties cannot determine it. A party aggrieved by invalidity has to
approach the court for invalidation that the order against is inoperative.
D Such a declaration permissible if the court lacks inherent jurisdiction
hence the order of 10.9.1993 was binding. The power of judicial review
has been rightly exercised by the Division Bench to undo the injustice
and overreach of the State power.
E
F
G
H
6. The property had been requisitioned in the year 1979. The
requisition continued for long. As the Single Bench passed an order on
10.9.1993, on the ground that the requisition should not continue for long.
The requisition was not in fact quashed but a direction was issued either
to acquire the property within 6 months and in case it was not so acquired
within the time specified, Land Acquisition Collector was to initiate
proceedings within next 6 months thereafter for release.
7. The requisition cannot last for long was laid down in H.D.
Vora v. State of Maharashtra & Ors. (1984) 2 SCC 337 thus:
"6. But it was contended on behalf of the appellant that even if
the order of requisition was invalid as having been made for a
purpose other than a public purpose, Respondent 3 was not
entitled to challenge the same after a lapse of over 30 years and
the writ petition should, therefore, have been dismissed by the
High Court. Now if the only ground on which the order of
requisition was challenged in the writ petition was that it was not
made for a public purpose and was therefore void, perhaps it
might have been possible to successfully repd this ground of
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
237
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
challenge by raising an objection that the High Court should not
A
have entertained the writ petition challenging the order of
requisition after a lapse of over 30 years. But we find that there
is also another ground of challenge urged on behalf of Respondent
3 and that is a very formidable ground to which there is no answer.
The argument urged under this ground of challenge was that an
B
order of requisition is by its very nature temporary in character
and it cannot endure for an indefinite period of time and the
order of requisition in the present case, therefore, ceased to.be
valid and effective after the expiration of a reasonable period of
time and that it could not, under any circumstances, continue for
a period of about 30 years and hence it was liable to be quashed
C
and set aside or in any event the State Government was bound
to revoke the same and to derequisition the flat. This contention
has, in our opinion, great force and must be sustained. There is a
basic and fundamental distinction recognised by Jaw between
requisition and acquisition. The Constitution itself in Entry 42 of D
List III of the Seventh Schedule makes a distinction between
acquisition and requisitioning of property. The original Article 31
clause (2) of the Constitution also recognised this distinction
between compulsory acquisition and requisitioning of property.
The two concepts, one of requisition and the other of acquisition
are totally distinct and independent. The acquisition means the
acquiring of the entire title of the expropriated owner whatever
the nature and extent of that title may be. The entire bundle of
rights which was vested in the origiqal holder passes on acquisition
to the acquirer leaving nothing to the former. Vide: Observations
of Mukherjee, J., in Chiranjit Lal case AIR 1951 SC 41. The
concept of acquisition has an air of permanence and finality in
that there is transference of the title of the original holder to the
acquiring authority. But the concept ofrequisition involves merely
taking of "domain or control over property without acquiring rights
E
F
of ownership" and must by its very nature be of temporary
duration. If requisitioning of property could legitimately continue
G
for an indefinite period of time, the distinction between requisition .
and acquisition would tend to become blurred, because in that
event for all practical purposes the right to possession and
enjoyment of the property which constitutes a major constituent
element of the right of ownership would be vested indefinitely
H
238
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017) 10 S.C.R.
without any limitation of time in the requisitioning authority and it
would be possible for the authority to substantially take over the
property without acquiring it and paying full market value as
compensation under the Land Acquisition Act, 1894. We do not
think that the Government can under the guise of requisition
continued for an indefinite period of time, in substance acquire
the property, because that would be a fraud on the power
conferred on the Government. If the Government wants to take
over the property for an indefinite period of time, the Government
must acquire the property but it cannot use the pO\yer of
requisition for achieving that object. The power of requisition is
exercisable by the Government only for a public purpose which
is of a transitory character. If the public purpose for which the
premises are required is of a perennial or permanent character
from the very inception, no order can be passed requisitioning
the premises and in such a case the order of requisition, if passed,
would be a fraud upon the statute, for the Government would be
requisitioning the premises when really speaking they want the
premises for acquisition, the object of taking the premises being
not transitory but permanent in character. Where the purpose
for which the premises are required is of such a character that
from the very inception it can never be served by requisitioning
the premises but can be achieved only by acquiring the property
wi,;.::h would be the case where the purpose is of a permanent
character or likely to subsist for an indefinite period of time, the
Government may acquire the premises but it certainly cannot
requisition the premises and cont!nue the requisitioning indefinitely.
Here in the present case the order of requisition was made as
far back as April 9, 1951, and even it it was made for housing a
homeless person and the appellant at that time fell within the
category of homeless person, it cannot be allowed to continue
for such an inordinately long period as thirty years. We must
therefore hold that the order of requisition even if it was valid
when made, ceased to be valid and effective after the expiration
of a reasonable period of time. It is not necessary for us to decide
what period of time may be regarded as reasonable for the
continuance of an order of requisition in a given case, because
ultimately the answer to this question must depend on the facts
and circumstances of each case but there can be no doubt that
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
239
PRADIP KUMAR GHOSH & OR~. (ARUN MISHRA, J.]
whatever be the public purpose for which an order ofrequisition A
is made, the period of time for which the order of requisition
may be continued cannot be an unreasonably long period such
as thirty years. The High Court was, therefore, in any view of
the matter, right in holding that in the circumstances the order of
requisition could not survive any longer and the State Government B
was bound to revoke the order of requisition and derequisition
the flat and to take steps to evict the appellant from the flat and
to hand over vacant possession of it to Respondent 3."
8. It was also held in Jiwani Kumar Paraki v. First Land
Acquisition Collector, Calcutta & Ors. (1984) 4 SCC 612 that the
requisition cannot continue for long and property should be acquired if C
necessary. This Court observed:
9"22. In view of the decision in the case of H.D. Vora (supra)
in the light of the decision of this Court rendered by Bench of
three Judges in Collector of Ako/av. Ramchandra AIR 1968
SC 244 and bearing in mind the distinction between "requisition" D
and "acquisition" as also the provisions of West Bengal amended
Section 49( l) (quoted above), the eorrect'position in law would
be that it will not be correct to say that in no case can an order of
requisition for permanent purpose be made but in a situation where
the purpose of requisitioning the property is of a permanent
E
character and where the Government has also the power and
the opportunity to acquire the propc1ty or a part thereof especially
upon the fulfilment of the conditions of Section 49( 1) of the Land
Acquisition Act (as amended by the West Bengal Act) to the
extent applicable, if the Government chooses not to exercise
that power nor attempts to exercise that power to achieve its
purpose, then that will be bad not because the Government would
be acting without power of requisition but the Government might
F
be acting in a bad faith. In other words, if there is power to
acquire as also the power to requisition and the purpose is of
pernmncnt nature by having the property or a part thereof for
G
the Government then in such case to keep the property under
requisition permanently might be an abuse of the power and a
colourable exercise of the power not because the Government
lacks the power of requisition but because the Government does
not use the other power of acquisition which will protect the
rights and interests of the parties better.
H
240
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[:2017] 10 S.C.R.
24. It is true that the purpose indisputably in the instant case is a
public purpose. It is also true that the only part of the building
namely one room has been requisitioned for the showroom but
the premises in question has remained under requisition for over
25 years and the purpose of having the premises in question is of
a permanent and perennial nature. But that by itself without
anything more would not enable the Court to draw the inference
that the ext:rcise of the power was bad initially, nor would the
continuance of the requisition become mala fide or colourable
by mere lapse of time. In order to draw such an inference, some
more material ought to have been placed before the Court. In
the circumstances after having heard counsel on either side fully,
we feel that the following would be an appropriate order to be
made in the instant case:
( l) The impugned requisition order is upheld but the continuance
of the requisition of the premises in question is permitted subject
to the conditions mentioned hereinafter.
(2) The Government is directed to take steps to acquire premises
in question by complying with the conditions mentioned and by
following the procedure prescribed in Section 49( I) of the Land
Acquisition Act, 1894 as substituted for the State of West Bengal
by the West Bengal Act 32 of 1955 and if possible issue an
appropriate order acquiring the same if Government wants the
continued use of the premises. Such steps should be completed
within a period of three years from today.
(3) If, however, there are insurmountable difficulties in acquiring
the premises under Section 49(1), the Government will be at
liberty to apply to this Court for appropriate directions.
(4) We also hope that the Gove1nment would take steps to acquire
any alternative property or prernises under Land Acquisition Act,
1894 in view of the fact that the purpose of the Government is
more or less permanent and such steps should also be taken not
beyond a period of three years as aforesaid.
(5) If the aforesaid conditions or directions are not complied
with, the petitioner will also be at liberty to apply to this Court for
appropriate directions in accordance with law.
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
241
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
(6) In the meantime, the parties are at liberty to make any A
appropriate application for the enhancement of rent or
compensation in accordance with law, if they are so entitled to,
and this will also not prejudice the parties from proceeding with
any suit for damages etc. that may be pending."
9. In Grahak Sans/ha Manch & Ors. v. State of Maharashtra
B
(1994) 4 SCC 192 a Constitution Bench of this Court has observed that
the requisition cannot continue indefinitely. This Court observed:
"16. We find ourselves in agreement with the view taken in the
cases of Collector of Akola AIR 1968 SC 244 and Jiwani
Kumar Paraki (1984) 4 SCC 612 that the purpose ofarcquisition C
order may be permanent. But that is not to say that an order of
requisitioning can be continued indefinitely or for a period of
time longer than that which is, in the facts and circumstances of
the particular case, reasonable. We note and approve in this
regard, as did this Court in Jiwani Kumar Paraki case, the
observations of the Nagpur High Court in the case of Mangila/
D
Karwa v. State of M.P AIR 1955 Nag. 153 which have been
reproduced above. That the concept of requisitioning· is
temporary is also indicated by the Law Commission in its Tenth
Report and, as pointed out earlier, by the terms of the said Act
itself, as it originally stood and as amended from time to time.
There is no contradiction in concluding that while a requisition
order can be issued for a permanent public purpose, it cannot be
continued indefinitely. Requisitioning might have to be resorted
E
to for a permanent public pw·pose, to give an example, to tide
over the period of time required for making permanent premises
available for it. The concepts of acquisition and requisition are
altogether different as are the consequences that flow therefrom.
A landlord cannot, in effect and substance, be deprived of his
rights and title to property without being paid due compensation,
F
and this is the effect of prolonged requisitioning. Requisitioning
may be continued only for a reasonable period; what that period
G
should be would depend upon the facts and circumstances of
each case and it would ordinarily, be for the Government to
decide."
H
242
SUPREME COURT REPORTS
[2017) 10 S.C.R.
A
10.0n 10.9.1993 the High Court at Calcutta had passed the
following directions in the previous writ application pertaining to
requisition:
"1. Since the order of requisition has been continuing the year
1979, the concerned Land Acquisition Collector is directed to
B
acquire the property in question, if the authority so desires, within
six months from the date of communication of this Order.
2. If the concerned authority do.es not acquire the property in
question within the time specified hereinabove, the Land
Acquisition Collector is directed to releas.e the property in question
C
from requisition and restore possession of the same to the writ
petitioner within ......... months thereafter."
The direction was two-fold; one to acquire property in 6 months
and secondly on failure to acquire within 6 months to release the property
within next 6 months. There was no automatic release contemplated in
o the order neither the notification unde,r section 3 of the Requisition of
Property issued way-back in the year 1979 had been quashed.
E
F
G
H
11. Sections 3 and 4 of the Act are relevant and they are extracted
hereunder:
"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:
Provided that no land used for the purpose of religious worship
or used by an educational or charitable iiistitution shall be
requisitioned under this section.
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
243 ·
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
(I A) A Collector of a district, an Additional District Magistrate
A
or the First Land Acquisition Collector, Calcutta when authorized
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
B
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 subsection (l ), the Collector or any person authorized by him in
writing in this behalf shall execute the order in such manner as c
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) ifhe is not a Magistrate, apply to a Magistrate or, in Calcutta D
as defined in clause (11) of section 5 of the Calcutta
Municipal Act, 1951, to the Commissioner of Police, and
such Magistrate or Commissioner, 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
E
requisitioned under section 3, the State Government may use or
deal with such land for any of the purposes referred to in subsection ( 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
F
such land is required for a public purpose referred to in subsection (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 State G
Government free from all encumbrances and the period. of
requisition of such land shall end.'~
It is apparent from the aforesaid provisions that the property that
is under requisition can only be acquired. Requisition is a sine qua non
for a property as on the date when notification under section 4 is issued.
H
244
SUPREME COURT REPORTS
[2017) !O ).C.R.
A Section 3 had been omitted w.e. f. 1.4.1994. However the property was
requisitioned before the provision was omitted.
B
c
D
E
F
G
12. Section 6 deals with release from requisition. Section 6 is
extracted hereunder :
"6. Release from requisition.-(1) Where any land
requisitioned under section 3 is not acquired and is to be released
from requisition, the State Government may, after making such
inquiry, if any, as it considers 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 (I) shall be a full discharge
of any 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 possession
of the land is so delivered.
(3) Where the person specified in the order made under subsection (I) 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 release from requisition and shall cause
a copy thereof to be affixed on some conspicuous part of such
land.
(4) Where a notice referred to in sub-section (3) is published in
the Official Gazette, the land specified in such notice shall cease
t9 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 (I): 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."
It is apparent that section 6 requires an order to be passed by the
State Government for release of the property from requisition.
Government has to conduct an inquiry if any, considered necessary then
the release order has to be passed and possession of the property has to
H be delivered under section 6. Section 6(2) also provides that even if
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY v.
245
PRADIP KUMAR GHOSH & ORS. [ARUN MISHRA, J.]
possession has been delivered pursuant to a release order, the same
A
shall not prejudice any right in respect of such land, if any other person
may be entitled by due process of.Jaw to enforce against the person. to
whom possession of land was delivered. ·
13~ The High Court in the instant case has not directed delivery of
possession and possession had not been handed over. Thus by virtue of B
the provisions contained in section 6, until and unless release order is
passed and delivery of possession pursuant thereto takes place, the
requisition would continue.
14. In The Collector of Kamrup & Ors. v. Kamakhya Ram
Barooah & Ors. (supra), this Court has laid down that the power to c
acquire the land under section 4 can be exercised only when land has
been requisitioned unc\er section 3 and not otherwise. This court in the
said case has observed:
"(4). The power to acquire land under s. 4 may, it is plain from a
bare perusal of sub-s. (1 ), be exercised where the land has been
D
requisitioned under s. 3 and not otherwise. In the present case,
an order for acquisition of the land was ma\Je in the first instance
and presumably because it was .realized that the order was
defective and irregular. it was soughtto be rectified by passing
an order on August 4, 1949, requisitioning the land with effect
from February 7, 1949. By this expedient, an illegal order of E·
acquisition could not be validated."
15. The question involved in the present case is whether in view
of order passed by the court on 10.9 .1993 property could be said to be
under requisition under section 3 of the Act as on. the date notification
under section 4 had been issued.
F
16. In regard to efficacy of order dated 10.9.1993, the respondents
have relied upon power to issue mandamus and the effect thereof. A
reference has been made to the decision in Comptroller and AuditorGeneral of India, Gian Prakash, New Delhi & Anr. v. K.S.
Jagannatlum & Anr. (1986) 2 SCC 679 and Andi Mukta Sadguru
G
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust & 01:5, v. V.R. Rudani & Ors. (1989) 2 SCC 691. In Comptroller
and Auditor-General of India (supra) the court observed :
"20. There is thus no doubt that the High Courts in India
exercising their jurisdiction under Article 226 have the power to
H
246
A
B
c
D
E
F
G
SUPREME COURT REPORTS
[2017] JO S.C.R.
issue a writ of mandamus or a writ in the nature of mandamus or
to pass orders and give necessary directions where the
government or a public authority has failed to exercise or has
wrongly exercised the discretion conferred upon it by a statute
or a rule or a policy decision of the government or has exercised
such discretion mala fide or oil irrelevant considerations or by
ignoring the relevant considerations and materials or in such a
manner as to frustrate the object of conferring such discretion
or the policy for implementing which such discretion has been
conferred.