JUDGMENT Roy, J. One Satyendra Kumar Ghosh (hereinafter referred as S. K. Ghosh), the husband of the present petitioner Smt. Molina Ghosh was at the relevant time, the Rehabilitation Administrator of the Government of India at Burma. He was found to have defalcuted large sums of Government money and an ordinance viz, the Criminal Law Amendment Ordinance, 1944, Ordinance No. XXXVIII of 1944 (hereinafter referred to as the said Ordinance), was promulgated, so that persons like the said S.K. Ghosh, could be prevented from disposing of or concealing any properties, which were procured by such person by mean, of certain offences covered by the said ordinance. The said ordinance was published in the Extraordinary issues of the Gazette of India, dated 23rd August, 1944 and under the same, the learned District Judge, Alipore was empowered to proceed with the case and he, ultimately took steps and attached various properties including premises Nos. 32 and 32/1, Dalhousie Square South, now known as Benoy Badal Dinesh Bag, Calcutta (hereinafter referred to as the said Dalhousie Square He properties). Apart from those properties, properties at premises Nos. 62, Sayed Amir Ali Avenue, Calcutta, 48, Old Ballygunge Road, 12, Ballygunge Circular Road, 4, Camac Street, Calcutta, 3, Lower. Roddon Street, Calcutta and Bejoybhumi Haspukur, 24-Parganas (hereinafter referred to as the said properties), were also attached. 2. On or about 21st November, 1944, an application was made on behalf of the then provincial Government of Bengal, before the learned District judge, Alipore, for attachment of the properties under section 3 of the said Ordinance, which is as under ;- 3. Application for attachment of property-(l) Where the Provincial Government has reason to believe that any person has committed (whether after the commencement of this Ordinance or not) any scheduled offences, the Provincial Government may, whether or not any Court has taken cognigance of the offence, authorise the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on his business, for the attachment under this Ordinance of the. money or other property which the Provincial Government believes the said person to have procured by means of the offence, or if such money or other property cannot for any reason be attached or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property. (2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the Crown. (3) An application under sub-section (1) shall be accompanied by one or more affidavits stating the grounds on which the belief that the said person has committed any scheduled offence is founded and the amount of money or the value of other property believed to have been procured by means of the offence; the application shall also furnish- (a) any information available as to the location for the time being of any such money or other property and shall, if necessary, give particulars, including the estimated value, of other property of the said person; (b) the names and addresses of any other persons believed to have, or to be likely to claim, any interest or title in the property of the said person, on the ground that they were purchased by the said S.K. Ghosh with moneys procured by him, by committing offences under sections 120B and 409 of the Indian Penal Code. The object of the said Ordinance as mentioned earlier, was to prevent the disposal or concealment of money or other property procured by means of certain scheduled offences punishable under the Indian Penal Code and one of the offences to which the said Ordinance applied, was section 409 of the Indian Penal Code and any conspiracy to commit such offence. 3. It would appear that on or about 22nd February, 1945, similar application was made, for attachment of certain other properties and on such, the learned District Judge concerned, ordered attachment of the said Dalhousie Square properties, after hearing the said S. K. Ghosh and the order of attachment was extended from time to time. 4. Then On 8th January, 1957, another application was made to the learned District Judge concerned, under section 13 of the said Ordinance, which is as under:- 13. 4. Then On 8th January, 1957, another application was made to the learned District Judge concerned, under section 13 of the said Ordinance, which is as under:- 13. Disposal of attached property upon termination of criminal proceedings-(l) Upon the termination of any criminal proceedings for any scheduled offence in respect of which any order of attachment of property has been made under this Ordinance or security given in lieu thereof, the agent of the Provincial Government shall without delay inform the District Judge, and shall then criminal proceedings have been taken in any court, furnish the District Judge with a copy of the judgment or order of the trying Court and with copies of the judgment or orders, if any, of the appellate or revisional Courts thereon. (2) Where it is reported to the District Judge under subsection (1) that cognizance of the alleged scheduled offence has not been taken or where the final judgment or order of the criminal Courts is one of acquittal, the District Judge shall forthwith withdraw any orders of attachment of property made in connection with the offence, or where security has been given in lieu of such attachment, order such security to be returned. (3) Where the final judgment or order of the criminal Courts is one of conviction, the District Judge shall order that from the property of the convicted person attached under this Ordinance or out of the security given in lieu of such attachment there shall be forfeited to His Majesty such amount or value as is found in the final judgment or order of the criminal Courts in pursuance of section 12 to have been procured by the convicted person by means of the offence, together with the costs attachment as determined by the District Judge; and where the final judgment or order of the criminal Courts has imposed or upheld a sentence of fine on the said person (whether alone or in conjunction with any other punishment), the District Judge may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the attached property or of the security given in lieu of attachment. (4) Where the amounts ordered to be forfeited or recovered under sub-section (3) exceed the value of the property of the convicted person attached, and where the property of any transferee of the convicted person has been attached under section 6, the District Judge shall order that the balance of the amount ordered to be forfeited under sub-section (3) together with the costs of attachment of the transferee's properly as determined by the District Judge shall be forfeited to His Majesty from the attached property of the transferee or out of the security given in lieu of such attachment; and the District Judges may order, without prejudice to any other mode of recovery, that any fine referred to in sub-section (3) or any portion thereof not recovered under that sub-section shall be recovered from the attached property of the transferee or out of the security given in lieu of such attachment. (5) If any property remains under attachment in respect of any scheduled offence or any security given in lieu of such attachment remains with the District Judge after his orders under sub-sections (3) and (4) have been carried into effect, the order of attachment in respect of such property remaining shall be forthwith withdrawn, or as the case may be, the remainder of the security returned, under the orders of the District Judge, and it was prayed, that as it was found by the Courts that the said S K. Ghosh had procured at least a sum of Rs. 30 Lakhs, the properties attached under section 3 of the said Ordinance, which were in the hands of a Receiver, should be confiscated and that the said Receiver may hand over all properties in his hands to the Government of India. There is no doubt that on or about 10th May, 1957 an ex parte order was made, allowing the said application and thereafter on or about 11th May, 1957, the concerned ex parte order was vacated on an application by the said S. K. Ghosh and his wife Smt. Molina Ghosh, who is the petitioner before us. 5. From the records it would also appear that on 23rd March, 1958, the learned District Judge concerned, passed an order after hearing the parties and thereby he held that the amount of Rs. 5. From the records it would also appear that on 23rd March, 1958, the learned District Judge concerned, passed an order after hearing the parties and thereby he held that the amount of Rs. 30 Lakhs together with the costs of attachment, was at first to be forfeited to the Union of India from the properties as attached and thereafter, the fine of Rs. 45 Lakhs was to be recovered from the residue of the concerned attached properties. However, as it was not possible for forfitting the properties to the value of Rs. 30 Lakhs without having their valuation duly made, the said learned District Judge directed the Receiver concerned to submit a report as to the costs of attachment, including the costs of management of the properties as attached and also directed the parties before him to submit their estimates with the condition that if there was no agreement between them, then a valuer should be appointed by the Court to evaluate the properties so attached. At that stage the said S.K. Ghosh preferred an appeal to this Court against the concerned order of the learned District Judge and on 22nd August, 1958, the appeal in question, was allowed by a Division Bench of this Court and the judgment of the learned District Judge was reversed. 6. Against such determinations, the State of West Bengal preferred an appeal to the Hon'ble Supreme Court of India and on 16th April, 1962, the said Court reversed the judgment and order of the Division Bench of this High Court and affirmed the order of the learned District Judge with a direction that he should take further 'steps in accordance with law. 7. It would appear that thereafter, on 7th September, 1962, a notification dated 29th August, 1962, was published in the issues of the Calcutta Gazette (Extraordinary) under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) stating that the properties at No.4, Camac Street as notified, was needed for public purpose, riot being a purpose of the Union viz, for office and residential accommodation in Ward No. 54 of the Calcutta Municipality in the city of Calcutta and on 14th December, 1962, after consideration of the objection as filed, there was a report made under section 5A of the said Act and thereafter, on 19th April, 1962. the necessary declaration under section 6 of the said Act was published. It would also appear that after that, on 1st Much, 1966, an order was made by the learned District Judge concerned to the effect that the Land Acquisition Collector may proceed with the proceeding, at his own risk and thereafter, on 4th January, 1967, the necessary award was made by the said Collector. 8. Against such award, on or about 27th January, 1967, the said S.K. Ghosh filed a petition for reference on the ground of valuation and apportionment and on 6th June, 1967, he moved an application under Article 226 of the Constitution of India in Matter No. 346 of 1967 praying. inter alia, amongst others, for the necessary issue of a Writ in the nature of Mandamus commanding the State of West Bengal and the First Land Acquisition Collector, Calcutta and each one of them not to take any steps or any further steps in pursuance of the purported Land Acquisition proceedings and to act and proceed in accordance with law, with a corresponding prayer for the issue of a writ in the nature of Certiorari to certify and to send to this Court the records of the Land acquisition proceedings for the purpose of their examination and quashing them, if round illegal and/or for otherwise doing complete justice between the parties. There was also a prayer for an order of injunction restraining the Respondents in that proceedings from proceeding further with the Land Acquisition proceedings. This proceeding was ultimately withdrawn, as certain technical defects were found on 19th March, 1969 and then on 30th April, 1969, another application being Matter No. 262 of 1969 with respect to the said Dalhousie Square properties only, was moved with the corresponding prayers as mentioned above. 9. By an order dated 18th July, 1970, K. L. Roy, J. (as His Lordship then was), made the proceedings absolute wherefrom the State of West Bengal preferred and appeal, being Appeal from Original Order No. 159 of 1971. Then there was an application by the State of West Bengal on 26th July, 1974, for the purchase of certain properties on the basis, that the concerned Land Acquisition proceedings had become infractions. The said appeal by the State of West Bengal has allowed on 22nd April, 1977 and against such determinations, on 6th October. Then there was an application by the State of West Bengal on 26th July, 1974, for the purchase of certain properties on the basis, that the concerned Land Acquisition proceedings had become infractions. The said appeal by the State of West Bengal has allowed on 22nd April, 1977 and against such determinations, on 6th October. 1977, the petitioner in- that proceedings, out of which the appeal arise filed an application for a certificate to leave to appeal to the Supreme Court of India, which was rejected. 10. After all these, on or about 13th March, 1978, the present petitioner Smt. Molina Ghosh, wife of S.K. Ghosh, since he died in the meantime, filed an application under section 18 of the said Act, for reference of the matter regarding valuation of the properties in question, to the Special Judge as she was not satisfied with the award as made by the Land Acquisition Collector. It should be noted hear that against the refuse to grant a certificate to leave to appeal to the Supreme Court of India, which was rejected as mentioned hereinbefore, no further proceeding was taken before the Hon'ble Supreme Court of India. 11. It would appear that on 5th January, 1979, the learned District Judge, by his order No. 2849, gave leave to the Land Acquisition Collector, to take possession of the properties in question and 3rd May, 1979 was filed for taking over such possession, but the same could not he taken. Then, a letter was addressed by Smt. Molina Ghosh to the Land Acquisition Collector concerned on 13th February. 1981, stating that premises at 4, Camac Street, Calcutta was lying vacant as Mr. Poddar, who was occupying the same vacated and by the said letter, the said Smt. Ghosh also requested the Land Acquisition Collector concerned to rake possession and deposit the amount of award money with the learned District Judge. In fact, on 2nd April, 1981, the State of West Bengal take possession of the properties in question, from the said Shri Poddar. who was a licensee under the District Judge concerned and was ordered to be evicted. It has been staled that while taking over such possession °no information was given to the learned District Judge and the possession in question, was in fact, handed over to the Public Works Department. who was a licensee under the District Judge concerned and was ordered to be evicted. It has been staled that while taking over such possession °no information was given to the learned District Judge and the possession in question, was in fact, handed over to the Public Works Department. Thereafter, on 11th May, 1981, the Land Acquisition Collector concerned referred the application under section 18 of the said Act as mentioned above, to the learned District Judge for reference and it has been alleged now that on 3rd September, 1981, there was a news item published, wherefrom it appeared that the Minister-in-charge announced in the Assemb1y that the land at 4, Cimac Street, Calcutta had been acquired for the purpose of National Theatre and on such on 25th September, 1987. the present writ petition was filed and an ad interim order of status quo was obtained from B.C. Ray, J. (as His Lordship then was). Thereafter, a Rule on this concerned application was issued on 21st July, 1983 and after several proceedings, Bhagabati Prasad Banerjee, J. referred the proceedings before the learned Chief Justice for appropriate orders and for placing the matter before any appropriate Bench for determinations of a question, which according to him, was required to be decided by such Bench, considering the importance of the point as involved. Along with that proceeding the said learned judge had also made similar order In respect of another proceeding being C. R. No. 10012 (W) of 1979 which was obtained by a tenant (Basanti Devi Bagla), who is at present occupying the ground-floor flat at 48, Old Ballygunge Road, Calcutta-19. On such reference, a Special Bench was constituted on 10th November, 1987, the said Special Bench had returned the proceedings to the learned Chief Justice, since they were of the view that the constitution of such Special Bench in the facts and circumstances of the case and the provisions of the Rules, was not proper and if at all, the proceedings could be referred to a Division Bench. As such, on 2nd December. 1987, those proceedings were referred for hearing before this Division Bench. 12. Mr. As such, on 2nd December. 1987, those proceedings were referred for hearing before this Division Bench. 12. Mr. Sen initially continued the submissions on behalf of the petitioner Smt. Molina Ghost) and on a reference to the determinations in the case of (I) nle State of West Bengal v. S. K. Ghosh, AIR 1963 SC 255 , placed the object of the said ordinance. In that case, the Supreme Court has observed that section 12(1) which deals amongst others with the power of the Criminal Courts to evaluate property procured by scheduled offences viz., (1) where before judgment is pronounced in any criminal trial for a scheduled offence It is represented to the Court that an order of attachment of property has been passed under this Ordinance in connection with such offence, the Court shall, if it is convicting the accused, record a finding as to the amount of money or value of other property procured by the accused by means of the offence, that the Court trying the offender should he asked to record a finding as to the amount of money or value of other property procured by the accused before it by means of the offence for which he is being tried. There is no procedure provided for making the representation to the court to record a finding as so the amount of money or value of other property procured by the offence. All that section 12(1) requires that at the request of the prosecution the court should give a finding as to the amount of money or value of other property procured by the accused. Representation may be by application or even oral and so long as the court gives a Finding as to the amount of money or value of other property procured by the offence that would be sufficient compliance with section 12(1). It is not necessary that the court when it gives a finding as to the amount of money or value of other property procured by means of the offence should say in so many words in passing the order that it is under section l2(1). It is not necessary that the court when it gives a finding as to the amount of money or value of other property procured by means of the offence should say in so many words in passing the order that it is under section l2(1). It is true that under section 10 of the Criminal Law Amendment Ordinance (29 of 1943) as amended in 1945, the court when imposing a fine has to give a finding as to the amount of money or value of other property found to have been procured by the offender by means of the offence in order that it may comply with the provisions of section 10 as to the minimum fine to be imposed. There is no reason however why finding given for the purpose of section 10 of determining the amount of money or the value of other property found to have been procured by the offender by means of the offence should not also be taken as a finding under section 12(1) of the 1944 Ordinance. The result of the two findings is exactly the same the only difference being that under section 10 of the 1943 Ordinance as amended in 1945, the court may do this suo moto while under section 12(1) of the 1944 Ordinance has to be done on the representation mane by the Prosecution. The result however in either case is that a finding as to the amount of money or the value of other property procured by the offender by means of the offence is given. That is what both section 10 of the 1943 Ordinance, a, amended in 1945. and section 12(1) of the 1944 Ordinance require. Here we should also quote the provisions of the other sub-section of section 12 which are to the following effect:- (2) In any appeal or revisional proceedings against such conviction the appellate or revisional Court shall, unless it set aside the conviction, either confirm such finding or modify it in such manner as it thinks proper. (3) In any appeal or revisional proceedings against an order acquittal passed in a trial such as is referred to in sub-section (1), the appellate or revisional Court. (3) In any appeal or revisional proceedings against an order acquittal passed in a trial such as is referred to in sub-section (1), the appellate or revisional Court. if it convicts the accused shall record a finding such as is referred to in that sub-section and it has been indicated by the Supreme Court that, under section 12(1) only the amount of money procured by means of the offence or the value of the property procured by means of the offence has to be determined by the criminal court Section 12 has nothing to do with the determination of the value of the property other than that procured by the offence (such as where property attached under section 3 of 1944 Ordinance is property purchased with embezzled money) and the criminal court has not evaluate this other property. Such property will be valued by the District Judge when he comes to consider the question of forfeiture under section 13(3). View of Bhattacharya, J. in Criminal Appeal No. 176 of 195 (Cal), Approved; View of Mitter, J. in that case not approved. Apart from the above the Supreme Court has also observed further that what section 13(3) of the 1944 Ordinance which provides for forfeiture requires is that there should he in the final judgment of the criminal court a finding as to the amount of money of value of property in pursuance of section 12. As soon as that finding is there, the District Judge would know the amount he is to forfeit, and the purpose of the finding is that if the District Judge is asked to make a forfeiture under section 13(3) he should know exactly the all10unt which he is required to forfeit. Sa long therefore as the criminal court trying an offender has given a finding as to the amount of money or value of other property procured by means of the offence in the judgment, that is sufficient compliance with section 12(1) of the 1944 Ordinance and the requirement therein that it should be on the representation of the prosecution is a mere formality. Obviously, even a determination under section 10 of the 1943 Ordinance as amended in 1945 of the amount procured by the offence must be at the instance of the prosecution, for it is the prosecution which will provide the material for that determination which in turn will be the basis on which the fine will be determined by the court under section 10 and the forfeiture provided in section 13(3) in case of offence which involve the embezzlement etc. of government money or property is really a speedier method of realising Government money or property on compared to a suit which the Government could bring for realising the money or property and is not punishment or penalty within the meaning of Article 20(1). It has also been held that the forfeiture by the District Judge under section 13(3) cannot be equated to forfeiture of property which is provided in section 53 of the Penal Code and Article 20(1) is dealing with punishment for offence and provides two safeguards namely (i) that no one shall be punished for an act which was not an offence under the law in force when it was committed, and (ii) that no one shall be subjected to a greater penalty for an offence than that was provided under the law in force when the offence was committed. The provision for forfeiture under section 13(3) has nothing to be with the infliction of any penalty on any person for an offence. It has also been observed by the Supreme Court that a sentence of line imposed under section 10 of the 1943 Ordinance, as amended in 1945, has nothing to do with toe amount to but forfeited under section 13(3) of the 1944 Ordinance and simply because that fine was imposed after taking into account the amount embezzled would make no difference so far as section 13(3) is concerned. That section clearly contemplates that the District Judge will first forfeit the attached properties upto the amount of money determined under section 12 and thereafter if any further properties are left the fine imposed by the criminal court may be realised from these properties. The fact that the fine imposed by the criminal court may hage taken into account under section 10 of the 1943 Ordinance the amount of money procured by means of the offence makes no different to the interpretation of section 13(3). The fact that the fine imposed by the criminal court may hage taken into account under section 10 of the 1943 Ordinance the amount of money procured by means of the offence makes no different to the interpretation of section 13(3). It was also contended by Mr. Sen that on the basis- of the judgment as mentioned here-in-before, both attachment and fine would he possible, but Mr. Guguly, who took up the Sub-mission thereafter, claimed that no acquisition of the property would be possible till the final disposal of the concerned proceedings. He also contended that no such proceeding as above, would also be available, unless the nature of the left over property is determined. It was pointed out by him that in the instant case, fine available on from the said S. K Ghosh was determined, but the same was not realised and the amount of forfeiture has also not been determineo as yet, so also the costs of attachment. Mr. Ganguly placed section 13(5) of the said Ordinance as quoted hereinbefore and pointed out that under the same, the residue, if any, will reverse back to the said S, K. Ghosh or the present petitioner before they can be acquired. According to him the purpose of the acquisition in the instant case was really changed and said Ordinance, which was and is a special law and an existing law, has really laid down the nature of exemption proceedings. It was specifically claimed and contended by him that the said Ordinance viz., the existing law really nullified the order of attachment as made in this case. According to him the said existing law cannot also be claimed to be a bad law, but the same is certainly a good law and such being the position, he fairly conceded that the consequences arising out of the said existing good law, can only be urged. 13. It was also claimed by Mr. According to him the said existing law cannot also be claimed to be a bad law, but the same is certainly a good law and such being the position, he fairly conceded that the consequences arising out of the said existing good law, can only be urged. 13. It was also claimed by Mr. Ganguly that even inspite of the orders of attachment and fine as proposed in this case, no disposal of the properties in question under section 13 of the said Ordinance, would be possible and permissible and the residue, if any, after meeting those claims, must necessarily be excluded and on the basis of the purposes of the said Ordinance, it is according to him, quite and abundantly clear that the same will not apply to the general properties, but will apply to certain specified and specific properties and that too only in case of offences as specified in the schedule to the sad Ordinance. He also referred to section 3(2) of the said Ordinance and claimed that the same will apply only to suits by or at the instance of the Crown. It was further claimed by him that the nature of probe in a case of the present nature would be a judicial one and there is no doubt that the order of acquisition will have the effect of a decree. Under section 15 of the said Act, which deals with the power to take possession and lays down that when the Collector has made an a ward under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances and such being the position, and as such it was claimed thus the properties cannot vest so long the concerned attachment continuance. Mr. Ganguly also referred to Article 256 of the Constitution of India which lays down that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Govt. of India to be necessary for that purpose and claimed, that thus the executive power must run with the laws as made by the president and such being the position, here, there has been an exercise of the power in a manner, which is contrary to the existing and specified law. 14. Thereafter, Mr. Ganguly placed the Division Bench judgment dated 26th April, 1977 in Appeal from Original Order No. 190 of 1971 (2) State of West Bengal & Anr. v. Smt. Molina Ghosh and after him Dr. Pal took up and continued the submissions on behalf of the said petitioner Smt. Molina Ghosh, for a considerable time. At this stage we must keep it on record that Dr. Pal asked for time, as he was very lately briefed, but such prayer of Dr. Pal was not allowed by us and the hearing continued, since, even after asking by us, the next case could not be made ready. 15. Dr. Pal again placed the said Ordinance which was promulgated in the manner as mentioned hereinbefore, under section 72 of the 9th Schedule of the Government of India Act, 1935 and claimed that on the basis as disclosed, the said Ordinance was promulgated for maintaining place and good Government and therefore, according to him, public purpose, in the matter of acquisition of the properties so involved was available and the same was not ruled out or exempted altogether. He also reiterated the object of the said Ordinance and claimed that under the provisions of the same summary power for attachment has been involved and u/s 12 of the said Ordin1nce the particulars where of have been quoted herein before, the District Judge concerned has to make or arrive at a finding, which must be definite and specific. It was pointed out by him further that the property of the like amount, involving fine and forfeiture will have to be or can be forfeited to the Central Government, when the possession or dealer of such properties is convicted and he posed a question that can the appropriate Government exercise the necessary power to form such opinion without the due specifications as required under the said Ordinance? We have quoted earlier the provisions of section 3(3) of the said Ordinance to which reference was made by Dr. We have quoted earlier the provisions of section 3(3) of the said Ordinance to which reference was made by Dr. Pal, apart from referring to section 4, which is to the following effect: (1) Upon receipt of an application under section 3, the District Judge shall, unless for reasons to be recorded in writing he is of opinion that there exist no prima facie grounds for believing that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person of equivalent value as the District Judge may think fit : Provided that the District Judge may if he thinks fit before passing such order and shall before refusing to pass such order, examine the person or persons making the affidavits accompanying the application. (2) At the same time as he passes an order under sub-section (i), the District Judge shall issue to the person whose money or other property is being attached a notice, accompanied by copies of order, the application and affidavits and of the evidence, if any, recorded, calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be absolute. (3) The District Judge shall also issue notices, accompanied by copies of the documents accompanying the notice under subsection (2), to all persons represented to him as having or being likely to claim, any interest or title in the property of the person to, whom notice is issued under the said sub-section, calling upon each such person to appear on the same date as that specified in the notice under the said sub-section and make objection if he so desires to the att3chment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof. (4) Any other person claiming and interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section (1) or sub-section (3) as the case may be, of section 5, and deals with ad interim attachment and on the basis thereof, he also reiterated the submissions of Mr. Ganguly that such order of attachment will really have the effect of a decree. 16. Thereafter, in the absence of Dr. Pal, Mr. Ganguly again took up the submission and claimed that under the provisions of the said Ordinance and more particularly under section 13(5) of the same, right in respect of the properties would be contingent right and on applying the necessary tests, one will have to find out or be satisfied a, to how much of a property will remain after reaching the necessary satisfaction and adjustment of fine and forfeiture, by the sale, disposal and attachment of the properties in question. It was further and also submitted by Mr. Ganguly, that unless the right in question, is a vested one the same cannot be divested by an acquisition proceeding and so long such decision is or could be arrived at the right will be in incomplete state. In fact, he pointed out that no order in the instant - case has yet been made under sub-sections (4) and (5) of section 13 of the said Ordinance is quoted hereinbefore, and such orders, if made, have not as yet been given effect to or carried out. While on Such point as mentioned above, Mr. Ganguly made a reference to chapter 8 Salmond’s Jurisprudence (12th Edition) deeding with ownership and claimed after specifying the chapter that ownership thereunder speaks of and denotes both vested and contingent provisions. At this stage, we should also keep it on record and mention that a supplementary affidavit dated 23rd September, 1983, was filed in the proceedings and from a reference to the same it would appear that for all the properties at 12, Ballygunge Circular Road, Calcutta, 3, Lower Rodown Street. Calcutta, 43, Old Ballygunge Road, Calcutta and the said Dalhousie Square properties were attached by the learned District Judge concerned, in exercise of his power under the said Ordinance. Calcutta, 43, Old Ballygunge Road, Calcutta and the said Dalhousie Square properties were attached by the learned District Judge concerned, in exercise of his power under the said Ordinance. The amount was conceded to be fixed at 47 Lakhs and on the basis of such statements, Mr. Ganguly wanted to contend that the price of property at 4, Camac Street, Calcutta, the area whereof would be about 54 cottahs, was not known and such being the position, he sought to supplement or supplant his submissions that the right to the property in question, remained inchale and incomplete and such being the positi0n, the ownership could not vest under or in terms of section 13(5) of the said Ordinance. In support of such submissions Mr. Ganguly referred to the case of (3) Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta & Ors., AIR 1984 SC 1707 and more particularly to paragraph 17 of that report, which has laid down that orders of requisition and acquisition have different consequences. These have been noted by this Court in the observations of Mukherjea, J. in the decision in the case in Charnjit Lal Chowdhury v. The Union of India, 1950 SCR 869 : AIR 1951 SC 41 . and the distinction between 'requisition' and 'acquisition' is also evident from Entry 42 in List III of the Seventh Schedule. Original Article 31, clause (2) of the Constitution recognised the distinction between 'compulsory acquisition' and 'requisition' of the property. The two concepts are different in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requisitioning authority. One is the taking over of the title and the other is the taking over of the possession. 17. Thereafter, Mr. The two concepts are different in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requisitioning authority. One is the taking over of the title and the other is the taking over of the possession. 17. Thereafter, Mr. Ganguly referred to section 9 of the said Ordinance, which deals with administration of attached property and lays down that any (1) The District Judge may, on the application of any person interested in any property attached under this Ordinance and after giving the agent of the Provincial Government an opportunity of being heard, make such order as the District Judge considers Smt. and reasonable for- (a) Providing from such of the attached property as the applicant claims an interest in, such sums as may be reasonably necessary for the maintenance of the applicant and of his family, and for the expresses connected with the defence of the applicant where criminal proceedings have been "instituted against him in any Court for a scheduled offence; (b) safeguarding so far as may be practicable the interests of any business effected by the attachment, and in particular, the interests of any partners in such business. (2) Where it appears to the District Judge to be just and convenient, he may be ordered to appoint a receiver to manage any property attached under this Ordinance in accordance with such instructions as the District Judge may from time to time thinks fit to giver; and where a receiver is so appointed, the provisions of Rules, 2, 3. 4 and 5 of Order XI, of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908) shall be applicable and on the basis thereof, claimed that thus the District Judge in the instant case, was custodia legis and he also pointed out that for the purpose of administering the estate, he had appointed a Receiver, who was made a party Respondents in this case. According to Mr. Ganguly the meaning of the words "Custodia legis", would mean, custody of law and that possession in this case, as much remained with the District Judge concerned or his representative viz., the receiver as appointed by him and such possession, according to him, has been sought to be interfered with by an executive order, which again should not be permitted or allowed. Such submissions were made by Mr. Ganguly, on a reference amongst others, to Stack’s Law Dictionary' (5th Edition). The doctrine of Custodia legis" provides that when personal property in repossessed under writ of replevin, property is considered to be in custody of the c1urt, though actual possession may be in either of the parties to the replevin action, and that property remains in custody of court until judgment in replevin action finally determines whether replevining party or prior holder is entitled to possession, 18. Thereafter, Dr. Pal again took up the submissions and placed sections 18, 19, 20, 21, 23, 24 and 25 of the said Act. He claimed that since a Reference has admittedly been made under section 13 of the said Act, the effect of the same would be, that the proceedings were pending before the Court and as such also, during the pendency of such proceeding, the steps as taken in this case, cannot proceed or should be allowed to be continued. He also indicated that after the proceedings or the steps as taken, under section 16 of the said Act, the Collector concerned can ordinarily take possession, but section 14 of the said Ordinance, which is to the following effect: 14. He also indicated that after the proceedings or the steps as taken, under section 16 of the said Act, the Collector concerned can ordinarily take possession, but section 14 of the said Ordinance, which is to the following effect: 14. Bar to other proceedings-Save as provided in section 11 and notwithstanding contained in any other law: (a) no suit or other legal proceedings shall be maintainable in any Court- (i) in respect of any property ordered to be forfeited under section 13 or which has been taken in recovery of fine in pursuance of an order under that section, or (ii) while any other property is attached under the Ordinance, in respect of such other property- by any person upon whom a notice has been served under section 4 or section 6 or who has made an objection under sub-section (4) 01 section, and (b) no court shall, in any legal proceedings or otherwise, pass any decree or order, other than a find decree in a suit by a person not being a person referred to in clause (a), which shall have the effect of nullifying or affecting in any why any subsisting order of attachment of property under this Ordinance, or the right of the District Judge to hold security in lieu of any such order of attachment, would be a bar under or in terms of the determinations in the case of The State of West Bengal v. S. K. Ghosh (Supra) and it was also reiterated by him, that before taking or continuing with any proceedings of the present nature, it was and is required to be determined and find out, how much of the property or the extent of the same, which should be forfeited and according to him, the said determination not having admittedly been done in this case, the concerned proceedings cannot also be allowed to be continued or proceeded with. Dr. Pal also agreed with the sub-missions of Mr. Dr. Pal also agreed with the sub-missions of Mr. Ganguly that the said Ordinance is an existing law or can be deemed to be so under the provisions of the Constitution of India and the power of acquisition of land is exercised by the State, by reason of or in terms of their power of eminent domain and such being the position, according to him, the question in this case therefore would be, whether and if such power can or should be allowed to be exercised in this case, when there is no express authority or since there is a genuine doubt about the same. While on the point, Dr. Pal referred to Article 340 of Crawford's 'Interpretation of Statutes which has indicated that the statuted which relate to the power of eminent domain should be strictly construed in favour of the land owner largely because they are in derogation of common right. This rule is particularly applicable where there is an alleged delegation of the power. As a result of strict construction, the power itself must be clearly expressed by the statute, or necessarily implied. This is true whether the statute confers the power on a public corporation or on a private corporation. Every reasonable doubt must be resolved adversely to the power's grant, and it may be exercised only by those donees mentioned in the statute. In fact, it may be presumed that the legislature did not intend to confer it in the event of doubt. It has also been indicated that as in the case of the case of the grant of the power of eminent domain, the statutes prescribing the procedure for condemnation and the assessment of damages are also in derogation of common right and of the common law and accordingly subject to a strict construction in favour of the property owner. For instance, a statute which provides for the ascertainment of compensation but makes no provision for its payment, must be construed as requiring payment. In fact, such an act bas been held not to grant the power of eminent domain. Similarly, the power to purchase does not grant the power to condemn. For instance, a statute which provides for the ascertainment of compensation but makes no provision for its payment, must be construed as requiring payment. In fact, such an act bas been held not to grant the power of eminent domain. Similarly, the power to purchase does not grant the power to condemn. The same is equally true with reference to the power to acquire property and besides being subject to a strict construction, the statutes prescribing the procedure connected with eminent domain are mandatory, and must be followed in order for the condemnation to be valid although some authority seems to indicate that substantial compliance will be sufficient. Furthermore, the mode of procedure prescribed by statute for exercising the power is exclusive; a result, no other mode of procedure can be followed, apart from observing that where the court has a choice between a construction which favour the constitutionality of the statute pertaining to eminent domin and one which does not favour constitutionality, the former will be accepted by the court. And even though one part of the statute be invalid, it does not necessarily mean that the entire act will be applicable. Moreover, in accord with the general rule, retractive effect is not favoured, although a repeal, without a saving clause, will terminate all pending proceedings. On the contrary, however, a mere change in the mode of procedure will not end the proceedings, for the case may continue in accord with the new legislation. 19. Mr. Bajoria, appearing for the answering Respondent Authorities claimed that the whole challenge in the instant case to really based under the provisions of the said ordinance and therefore, there has really been no challenge to the actions taken under the said Act and it was painted out by him, that such or any challenge in respect of the validity of the proceedings under the said Act, would not be open to the petitioner in view of the specific determination by the Division Bench Judgment of this Court dated 22nd April, 1977 as made in Appeal from Original Order No. 1971 (State of West Bengal & Anr. v. Smt. Molina Ghosh) and which determination has also concluded the points as sought to be raised now, on the question of grneral and special law. v. Smt. Molina Ghosh) and which determination has also concluded the points as sought to be raised now, on the question of grneral and special law. In that determination and also in the determination of the proceeding from which the said Appeal arose, the effective point was really the Government's power of acquisition under the provisions of the said Act. On such basis or the challenge as involved therein, Mr. Bajoria claimed that this writ petition will not be maintainable, as according to him, repeated challenge of a proceeding on the same issue and practically on the same grounds would not be permissible. Such submissions of Mr. Bajoria cannot be brushed said very lightly and more particularly, as presently advised by the decisions of the Hon'ble Supreme Court of India, we find that the points which could have been raised but not raised or points which were raised but not argued, will have the deemed effect of the points being decided against the claimant. In fact, on a comparison of the earlier proceedings and the present one, one would have no difficulty in holding or coming to the conclusion that the two. proceedings were between the same parties or the proceedings were inter-parties and the lis and challenge involved were also the same and if there is any difference in the grievance, the same is only in respect of some inventory which has been claimed in the present proceedings, not to have been made duly. 20. It was also specification pointed out by Mr. Bajoria that the change of purpose as has been sought to be argued now, as a special point and not urged in the earlier proceedings, has not been really and specifically taken in the present proceedings. Even on that point, Mr. 20. It was also specification pointed out by Mr. Bajoria that the change of purpose as has been sought to be argued now, as a special point and not urged in the earlier proceedings, has not been really and specifically taken in the present proceedings. Even on that point, Mr. Bajuria indicated that the challenge as sought to be thrown now, viz., that even if the power to have such change is there, the same cannot be given effect to with out another notification and according to him, the petitioner Smt. Molina Ghosh has really recognised the due authority of the Authorities concerned in this case, to take necessary steps in the matter of acquisition, but her only grievance is in respect of fixation of compensation only and she has really claimed that such price should be fixed on the basis of the price prevailing in 1981 and she has not really raised or otherwise, any grievance regarding the jurisdiction of the Authorities concerned, to acquire the properties in question. In fact, Mr. Bajoria contended that now, there has been a complete change in the stand taken by the petitioner than her earlier writ proceedings, which in the facts of the case, should not be allowed to be urged. Really, the prayers of the two proceedings, on comparison and reading, appeared effectively to be the same. In fact the notifications under section 4 and the declaration under section 6 of the said Act were challenged in the earlier proceedings before the Division Bench of this Court and ultimately, that Bench, in the determinations as mentioned hereinbefore, upheld the validity of those actions or proceedings and really, the learned Trial Judge in this proceeding bas also observed that he cannot go behind the said determination of the Division Bench and will not be in a position to adjudicate on any matter which has already been adjudicated or could have been adjudicated if such points were taken before the said Division Bench and as such, the points could not be decided by him. But, while on the point of submissions with regard to the change of purpose, which was argued before him by Mr. Bhola Nath Sen, on the basis of a Special Bench Judgment of this Court, delivered in July in the case of (4) Gurudas Kundu Chowdhury & Ors. But, while on the point of submissions with regard to the change of purpose, which was argued before him by Mr. Bhola Nath Sen, on the basis of a Special Bench Judgment of this Court, delivered in July in the case of (4) Gurudas Kundu Chowdhury & Ors. v. The Secretary of the State of India in Council, 18 Cal LJ 244, to the effect that a public body which has acquired the land under the said Act in this country, for one specific purpose cannot subsequently abandon that purpose and use the land so acquired for some other purpose for which they have not acquired it and so also another Single Bench decision of this Court in the case of (5) Gadadhar Ghose & Ors. v. The State of West Bengal & Ors., 67 CWN 460, has observed that the necessary point as to whether such a point as is raised now, could be raised at this stage, should be decided by this Court, and that being his view, the learned trial Judge, without deciding the point viz., whether the State Government after the land is acquired can change its purpose and use the land for a different purpose being and important question of law has treated himself, be decided by a larger Bench. 21. It is true and as argued by Mr. Bajaria, the question of quantum of compensation or the rate of increase of the same can well and very easily be taken or raised under section 18 of the said Act, the terms whereof are as under 18. Reference to Court.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measure men t of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the a ward is taken: Provided that every such application shall be made(a) if the person making it was present or represented before the Collector at the time then be made his award, within six I weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, which ever period shall first expire. 22. It was contended and claimed by Mr. Bajoria that if the dates relevant for the acquisition in question and the date when the said proceedings is pending today are taken into consideration, about 26 years or at least about 19 years have passed and such delay as admittedly involved in this case, has not been duly or appropriately explained any such being the position, the unexplained delay in this case is fatal in entertaining the proceedings. It was further pointed out by him that from the Division Bench Judgment of this Court, which was in April, 1971, the petitioner did not avail her opportunity to go to the Hon'ble Supreme Court of India and as such, allowed the point as decided to be final, but thereafter, another Writ proceeding viz., the present one, was moved and that being the position, the issues as involved would be hit by or barred on application of res judicata or principles analogous thereto. It was further contended by Mr. Bajoria that the petitioner in this case was guilty of approbating and reprobating and as such, because of her conduct and so also the latches, as not duly explained, she cannot have the present proceedings maintained. From a reference to the order sheets in all the connected proceedings, we have also no doubt and that too also argeeing with B. C. Basak, J. and B. P. Banerjee, J., we hold that the petitioner is responsible for keeping the proceedings pending or alive, and in fact, she did not allow the proceeding under the said Act, to be completed and such conduct, cannot be appreciated. 23. While answering on the submission on forfeiture as made on behalf of the petitioner, Mr. 23. While answering on the submission on forfeiture as made on behalf of the petitioner, Mr. Bajoria, after placing the grounds as taken, indicated that such argument will not also be available to the petitioner now or at this stage and more particularly when, the facts of the case would show, prove and establish that the case under consideration is not really the forfeiture of the properties in question as such. He also placed the relevant provisions of the said Ordinance and pointed out that from section 4 of the same, it would be abundantly clear that the dominant purpose is to realise the amount and not the culpability of the properties in issue and the real idea is to secure the money, which is admittedly different, distinct and separate from forfeiture. 24. While further in the point of forfeiture, Mr. Bajoria pointed out that the same has not only been dealt with but actually decided against the present contention of the petitioner, not only by the Division Bench judgment of this Court but also by the Supreme Court in the case of The State of West Bengal v. S. K. Ghosh (Supra). He in fact, indicated and pointed out that identical grounds on forfeiture as taken or sought to be urged now, were urged and taken in those proceedings and thus such points would be hit by. resjudicata or principles analogous thereto or at least by constructive res judicata, more particularly when, similar issues as expressly raised were repelled on consideration of merits and all relevant facts. It was also and further pointed out by Mr. Bajoria that the existence of public purpose was not also disputed in the earlier proceedings and so also the bona fides of the same or the acquisition was not also challenged. 25. To supplement his submissions on the effect of issues raised but not argued, Mr. It was also and further pointed out by Mr. Bajoria that the existence of public purpose was not also disputed in the earlier proceedings and so also the bona fides of the same or the acquisition was not also challenged. 25. To supplement his submissions on the effect of issues raised but not argued, Mr. Bajoria referred to and relied on the case of (6) Devilal Modi v. Sales Tax Officer, Batlam & Ors., AIR 1965 SC 1150 , where the writ petitioner raised two contentions, which were examined by the High Court and rejected them on merits and on such facts, the Hon'ble Supreme Court of India, had occasions to examine the extent and applicability of res judicata or principles analogous thereto in a writ proceeding and has observed that though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their un-constitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basis doctrine that judgments pronounced by the Supreme Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration. In fact, in that case, the assessee challenged the validity of sales tax imposed upon him for a particular year by a petition under Article 226. The petition was rejected upon merits. An appeal also was dismissed by the Supreme Court upon merits. The assessee had attemted to raise two more additional grounds before the Supreme Court But the Supreme Court did not allow them on the ground that they had not been specified in the writ petition before the High Court and had not been raised at an earlier stage. Subsequently by writ petition under Article 226 before the High Court the assessee once again challenged the same assessment order but on grounds which the Supreme Court had not permitted to be raised by the assessee in the appeal before them previous writ petition. Subsequently by writ petition under Article 226 before the High Court the assessee once again challenged the same assessment order but on grounds which the Supreme Court had not permitted to be raised by the assessee in the appeal before them previous writ petition. The High Court rejected the petition on merits and on appeal, the said Court has held that the second writ petition was barred by constructive resjudicata, apart from observing that the result of the decision of the Supreme Court in the earlier appeal brought by the assessee before it was clear and unambiguous and that was that the assessee had failed to challenge the validity of the impugned order which had been passed again him. In other words, the effect of the earlier decision of the Supreme Court was that the assessee was liable to pay the lax and penalty imposed on him by the impugned order. It would be unreasonable to suggest that after this judgment was pronounced by the Supreme Court, it should still be open to the assessee to file a subsequent writ I petition before the High Court and urge that the said impugned order was invalid for some additional grounds. In case the High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of the Supreme Court, and that would be, inconsistent with the finality which must attach to the decisions of the Supreme Court as between the parties before it in respect of the subject-matter directly covered by the said decision. If constructive res judicata were not applied to such proceedings, a party could file as many writ petitions as he liked and take one or two points every time. That clearly was opposed to considerations of public policy on which res judicata was based and would mean harassment and hardship to the opponent. Besides, if such a course were allowed to be adopted the doctrine of finality of judgments pronounced by the Supreme Court would also be materially affected. On the basis of the above determinations, Mr. That clearly was opposed to considerations of public policy on which res judicata was based and would mean harassment and hardship to the opponent. Besides, if such a course were allowed to be adopted the doctrine of finality of judgments pronounced by the Supreme Court would also be materially affected. On the basis of the above determinations, Mr. Bajoria pointed out and claimed that it interference in this proceeding is made now, the effect will be disastrous, as the effect of the earlier Division Bench determination of this Court will be set aside and nulified, more particularly when the cause of action viz., the legality and validity of the proceedings under the said Act, were and are the same. The above determination of the Supreme Court bas been followed in the case of (7) Azizus Subhan v. Union of India etc., AIR 1966 Cal 570 which has observed that the general principles of res judicata apply to writ petitions filed under Articles 32 and 226 of the Constitution. If the same question has been decided by the High Court in a petition under Article 226 and the Court comes to the conclusion that no relief can be granted to the petitioner, such a decision operates as res judicata in a subsequent petition for the same relief. The mere addition of a new party or a new ground (which might and ought to have raised in the earlier petition but was not raised) will not exclude the operation of the principles of res judicata and that determinations has further made a reference to the case of (8) Doryao & Ors. V. State of U.P. & Ors., AIR 1961 SC 1457 , where dealing with section 11 of the Civil Procedure Code, the Supreme Court has observed that the argument that res judicata is a technical rule and as such is irrelevant in dealing With petitions under Article 32 cannot be accepted. The rule of res hdicata as indicated in section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive judicata may be said to be technical but the basis on which the said rule bests is founded on consideration of public policy. The rule of res hdicata as indicated in section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive judicata may be said to be technical but the basis on which the said rule bests is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the finding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rules of res Judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32 and the binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. On general considerations of public policy there seems to be no reason why the rule of res Judicata should be treated as inadmisible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general ru1e can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution, apart from holding that it makes no difference to the application of the rule of resjudcata that the decision on which the plea of res judicata is raised is a decision not of Supreme Court but of a High Court exercising its jurisdiction under Article 226. It is doubtful if the technical requirement prescribed by section 11 as to the competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata, but assuming that it is in substance even the jurisdiction of the High Court in dealing with a writ petition filed under Article 226 is substantially the same as the jurisdiction of this court in entertaining an application under Article 32, Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, where as Article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Article 32 cannot be entertained by a High Court under Article 226 is without any substance and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under Article 32 must be rejected and if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismiss the decision thus, pronounced would continue to hind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the Supreme Court under Article 32 by an original petition made on the Same facts and for obtaining the same or similar orders or writs. if the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar, if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which are already indicated. If the petition is dismissed in limine without passing a speaking order than such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was not substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition tiled under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a Case there has been no decision on the merits by the Court. Mr. Bajoria further submitted that cause of action gives rise to an section and to argument such submissions, be referred to the case of (9) Slate of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680 . The petitioner in that case was dismissed from service. He filed a petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide. The petition was dismissed. Thereafter he filed a suit in which be challenged the order of dismissed on the ground, inter alia, that he had been appointed by the I.G.P. and that Dy. The petition was dismissed. Thereafter he filed a suit in which be challenged the order of dismissed on the ground, inter alia, that he had been appointed by the I.G.P. and that Dy. I.G.P. was not competent to dismiss him by virtue of Article 311 (1) of Constitution and on such facts, it has been held that the suit was barred by the principle of constructive resjudicata, apart from indicating that the principle of estoppel per rem judicatum is a rule of evidence. It may be said to be "the broader rule of evidence which prohibits the reassertion• of a cause of action". This doctrine is based on two theories (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, find (ii) the interest of the individual that he should he protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have been once adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority lean to multiplicity of actions and bring the administration of justice into distribute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must less its identity and vitality and mergin in the judgment when pronounced. It cannot therefore servive the judgment or give rise to another cause of action on the same facts. This is that is known as the general principle of res judicata. But is may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. This is another and an unequally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule bas sometimes been referred to as constructive res judicata which, in reality is an aspect of amplification of the general principle and holding that in the circumstances of the case the petitioner did not raise the plea, in the writ petition that by virtue of Clause (1) of Article 311 of the Constitution he could not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police. It was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide. It was therefore not permissible for him to challenge his dismissal, in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which be was appointed. That was clearly barred by the principle of constructive res judication and the High Court erred in taking a contrary view. Mr. Bajoria, in short and further contended that the grounds as sought to be urged now, are expressly barred on application of the Rule of res judicala or principles analogous thereto and the fact that the petitioner has filed an application under section 18 of the said Act show", establishes and proves that she has on principle, accepted the acquisition proceeding, and bas asked for enhancement of the rates, and that being the position, she is also debarred from challenging the acquisition proceeding as a whole. 26. In reply, Mr. 26. In reply, Mr. Ganguli, after placing the Division Bench judgment of this Court in S. K. Ghosh's case (Supra), wanted to contend that even on the paints as determined therein, the paints as presently urged in this proceedings would be available and maintainable and the application of Constructive resjudicata as argued by Mr. Bajoria, will not be available in a writ proceedings. In support of his submissions, Mr. Ganguli referred to the case of (10) Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chindewra & Ors., AIR 1964 SC 1013 , where it has been observed that the general principles of res judicata applies to writ petitions filed under Articles 32 or 226. But the application of the doctrine of resjudicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizen of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in Courts of law. Mr. Ganguli contended that under the said Ordinance or the effect thereof, is that the right of the petitioner ecliposed and such point was neither taken nor argued before the earlier Division Bench in S. K. Ghosh's case (Supra). He also indicated that the judgment of the Supreme Court in S. K. Ghosh's (Supra) case, was on 16th April, 1962, the initiation of the present acquisition proceedings under the said Act. was 17th September, 1962, even though the said Ordinance was promulgated on 23rd August, 1944 and as such there was in fact no lanches or default in bringing the action in challenging the proceedings as initiated in time and more particularly when the extent of forfeiture was not known or could be ascertained. 27. Mr. Ganguli contended further that reference under section 18 of the said Ace would be a bar under section 14 of the said Ordinance, which he reiterated again, to be an existing law under Article 256 of the Constitution of India. He also pointed out that under section 12 of the said Ordinance, the Criminal Court has made eva1uation of the properties and the cumulative effect of all the findings would be, that the acquisition proceedings in this case would be ultra vires the said Act itself. It was recontended by him that under the determinations in Amalgamated Coalfields Ltd. & Anr. It was recontended by him that under the determinations in Amalgamated Coalfields Ltd. & Anr. v. Janopada Sabha Chindwara & Ors. & Ors. (Supra), which has also been considered in the case of State of Uttar Pradesh v. Nawab Hussain (Supra), the principles of res judicata or that of constructive resjudicata, will have no general application in the facts of this case or in a proceeding of the present nature. The case of Amalgamated Coal Field & Anr. (Supra), has already been considered in the case of Azizus Subhan V. Union of India etc. (Supra) and even on the basis of the determinations as made in that case, the submissions of Mr. Ganguli, as referred to hereinbefore, cannot be accepted as due and appropriate. While on his submission on res judicata and the application of such rule in writ proceedings, Mr. Ganguli made a reference to the case of (11) Mysore State Electricity Board v. Bangalore Woolen Cotton and Silk Mills Ltd. & Anr., AIR 1963 SC 1128 , which has observed that it is well-settled that in order to decide whether a decision in an earlier litigation operate as resjudicata, the court must look at the nature of the litigation, what were the issues raised therein and what was actually decided in it, apart from holding that where in writ petitioner challenging the right of the State Government or the Electricity Board under tae Electricity (supply) Act. 1948, to revise the rates charged for the supply of electric energy to the petitioners the only point urged before the High Court on behalf of the petitioners was that under section 26 of the 1948 Act the Board had all the powers and obligations of a licensee under the 1910 Act and as the provisions of the Sixth Schedule and the Seventh Schedule of the 1948 Act were, under section 57 of that Act, deemed to be incorporated in the license of every licensee, the Board which had the same obligations as a licensee could not demand charges for the supply of electricity which were not in conceance with the principles laid down in those Schedules and that argument was repelled by the High Court, which decided that the Board was-not a licensee within the meaning of section 26 of the 1948 Act and was not subject to the rules of the Sixth Schedule thereof, and the High Court in express terms left open the question as to the right of the petitioners to call for an arbitration in respect of the dispute under section 76 of the 1948 Act, the decision does not operate as resjudicata so as to prevent the petitioners from raising subsequently a dispute if any as to the revised rates and calling for an arbitration under section 76 of the 1948 Act. It is indeed true that what becomes res judicata is the "matter" which is actually decided not the reason which leads the court to decide the "matter". But the matter which was actually decided on the writ petitions did not embrace or include the question of the right of the petitioners to can for an arbitration under section 76 of the 1948 Act. The right of the Slate Government or of the Board to revise the rates, and the right, if any, of the petitioners to raise a dispute as to the revised rates, are two different matters and the decision on one cannot operate as resjudicata with regard to the other, and contended further that before determining the issue the nature of litigation as involved, will have to be checked and considered and according to him, that on such checking and consideration, the late of res judicata cannot be applied or brought into play in this case. It should be noted that Mr. It should be noted that Mr. Ganguli, in fact advanced no argument on the question of public purpose as involved in this case and be could not also duly and appropriately explain the delay and laches in this case. He only submitted that since, even after the determination by the Division Bench of this Court on 22nd April, 1977, the Respondent State Authorities, bad not taken any steps so long, so there was in fact no dely in moving the writ proceedings, after the necessary steps were taken. 28. Thereafter, Dr. Pal again took up the submissions and placed the cases as mentioned hereinbefore, in support of the submissions that rule of res judicata or principle analogous thereto were not attracted or applicable in that case and the cases as cited by his adversary, will have no application since there were determinations, made prior to the attachment of the Civil Procedure Code and he specifically argued that the petitioner's case cannot be abut out, unless the principles of Constructive res judicata applies or are made applicable in a writ proceedings. He specifically admitted that even if the rule of resjudicata applies in a proceeding like this, but the rule of Constructive res judicata will not apply. In support of his submissions, Dr. Pal referred to the Single Bench decision of this Court in the case of (12 Sailendra Nath Mullick v. State of West Bengal & Ors., 1981(2) Cal LJ 99, which was a decision dated 26th March,. 1981 where, the availability and applicability of section 141 of the Civil Procedure Code in a writ proceeding after the amendment of 1976, was considered and it has been observed that considering the effect of the "Explanation" as incorporated in section 141 of the Code of Civil Procedure in 1976, the said section bas no application to proceedings under Article 226 of the Constitution of India. The jurisdiction which the High Court exercises under Article 226 is a special and not a limited one and the same is neither revisional nor appellate. That being the position, the submission made on behalf of the petitioner on the application of the provisions of the Code of Civil Procedure and in that view of the matter, the provision of Rule 3 of Order 23 of the Code, is not sustainable. In the case of (13) The Province of Bombay v. The Municipal Corporation of Ahmedabad. That being the position, the submission made on behalf of the petitioner on the application of the provisions of the Code of Civil Procedure and in that view of the matter, the provision of Rule 3 of Order 23 of the Code, is not sustainable. In the case of (13) The Province of Bombay v. The Municipal Corporation of Ahmedabad. AIR 1954 Bombay 1, where a Full Bench of the Bombay High Court bas observed that in order to decide whether the decision in the earlier suit operates as "res judicata", Courts must look at the nature of that suit, that were the issues raised in that suit and what was actually decided in that omit, apart from holding that one first and the primary consideration in applying section 11 is to decide what is the 'res' which has been determined. It is only the 'res' which determined which could become 'res-judicata'. If the 'res' is a question of law, it may become 'res judicata'. But if the 'res' is the finding of certain facts, then what becomes 'res-Judicata' is only those facts not the interpretation of the law which led the Court to find those facts, and what becomes 'res judicata' is the matter which is decided and not the reason which leads the Court to decide the matter. Neither the reasoning nor the mental process can operate as 'res judicata'. What could not be challenged and what bad become conclusive was the actual decision given in the former suit. It has also been observed in that case that the distinction between resjudicata' and a precedent established by Court must always be mind. When a Court interprets the law, when it construes a statute or determines what the position in law is with regard to a particular matter, that constitutes a precedent set up by that Court and that Court may well follow that precedent when similar cases come before it where the same law has to be considered and interpreted. But a decision given by a Court on a question of law does not bind the same parties when those parties are litigating with regard to an entirely different right. The decision of law would only be binding between the same parties as 'res judicata' if the right that a party claimed was the same in the former suit and in the latter suit. The decision of law would only be binding between the same parties as 'res judicata' if the right that a party claimed was the same in the former suit and in the latter suit. If certain fads were determined on an interpretation of the law, and it was held that a party had certain right or that he was not entitled to a particular right, then it would not be open to that party in a subsequent suit to challenge the interpretation of the law and ask the Court to decide that he had the right or to the right or to the other party to allege that he did not have the right and whenever a question arises as to whether a question of law operates as 'res judicata', the question that the Court must address itself is. Is it a question of law which is dissociated from and unconnected with the rights claimed or denied as between the parties to the litigation? If it is dissociated or unconnected, then the question of law does not constitute a decision which operates as 'res judicata'. If on the other hand, the question of law is directly connected or associated with the rights claimed or denied and constitutes the very decision of the Court, the question of law would operate as 'res judicata'. It was pointed out by Dr. Pal that the said decision has later on been accepted by the Supreme Court. Then a still further reference was made by Dr. Pal, to another Single Bench Judgment of this Court in the case of (14) Dunlop Bridge Mini Bus Owners Association & Ors. v. Regional Transport Authority, Calcutta Region & Ors., 1982(1) CalLJ 388, where the submissions on the aspect of res judica la or the applications of the principles analogous thereto were argued, but not accepted in the facts of that case, on recording, that if not under the provisions of the Civil Procedure Code, which says that they will have no application in proceedings under Article 226 of the Constitution of India, but also because of the admitted fact that there was no final determination of the lis on merits in the concerned appeal, they would not be applicable aid available in this cue. 29. Mr. 29. Mr. Ganguli then contended that in this case there has admittedly been a breach of the fundamental right of the petitioner, Which she could not or really in exercise at any right and authority, to waive on the basis of the determinations in the case of (15) Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr., AIR 1959 SC 149 , which has observed that Article 14 is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e. g. Article 19 do. The obligation thus imposed on the State, on doubt, entries for the benefit of all persons for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation this imposed on the State is the measure of the fundamental right which every person within the terriroty of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited cocitizens, but is available to any person within the territory of India. "In the third place it is to be observed that by virtue of Article 12, "the State" which is, by Article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the Legislative of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. Therefore, it seems absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with view to implement its object of ensuring the equality of status and opportunity which every Welfare State. such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen mayor may not waive he cannot certainly give up or waive a breach of the foundamental right that is indirectly conferred on him by this constitutional mandate directed to the State. It was also contended by Mr. Ganguli that there cannot be any estoppel against the Constitution and since the fundamental right of the petitioner to hold and possess the properties was infringed and involved, he could move this Court even at such late stage, as in this case. He wanted to supplement his submissions as above, on a reference to the case of (16) Olga Tellis & Ors. v. State of Maharastra & Ors., AIR 1986 SC 180 , where it bas been indicated that there can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainly and honesty to human affairs. This principle can have no application to representations made regarding the assertion or enforcement fundamental rights. There can also be no waiver of fundamental rights. No individual can better away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create ao estoppel against him in that or any subsequent proceeding. Such a concession, if enforced would defect the purpose of the Constitution. A concession made by him in a proceeding whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create ao estoppel against him in that or any subsequent proceeding. Such a concession, if enforced would defect the purpose of the Constitution. Where the argument of estoppel valid, and all-powerful State could easily tempt an individual to forgo his presions personal freedoms or promise of transitory, immediate benefit and merely because an under taking was given before the High Court in writ proceedings on behalf of the but Pond payment dwellers that they did net claim any fundamental right to put up hues on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after certain date they could Dot be estoppel from contendings before the Supreme Court that the huts constructed by them on the pavements cannot be demolised because of their right to livelihood which is comprehended within, the fundamental right to life guaranteed by Article 21 of the Constitution. 30. Mr. Ganguli also contended that since the lis in this case was the forfeiture of the amount and not the properties, which point was not in issue in the earlier proceedings so the present proceeding would not be barred, but the same would be maintainable. In support of the claim, reference was made by him to the case of The Slate of West Bengal v. S. K. Ghosh (Supra) and more particularly to paragraph 11 of the report. That section 13(3) of the 1944 Ordinance which provides for forfeiture requires is that there should be in the final judgment of the criminal court a finding as to the amount of money or value of property in pursuance of section 12. As soon as that finding is there, the District Judge would know the amount he is to forfeit, and the purpose of the finding is that if the District Judge is asked to make a forfeiture under section 13(3) he should know exactly the amount which he is required to forfeit. As soon as that finding is there, the District Judge would know the amount he is to forfeit, and the purpose of the finding is that if the District Judge is asked to make a forfeiture under section 13(3) he should know exactly the amount which he is required to forfeit. So long therefore as the criminal court trying an offender has given a fiL1ding as to the amount of money or value of other property procured by means of the offence in the judgment, that is sufficient compliance with section 12(1) of the 1944 Ordinance and the requirement therein that it should be on the formality. Obviously, even a determination under section 10 of the 1943 Ordinance as amended in 1945 of the amount procured by the offence must be at the instance of the prosecution, for it. is the prosecution which will provide the material for the determination which in turn will be the basis on' which the fine will be determined by the court under section 10, Mr. Ganguli could not of Course dispute that even on the basis of the above decision, the background of the action as Liken would be security for realisation of the dues. 31. It was contended by Dr. Pal that even if the same arguments as were made in the Division Bench Judgment as mentioned hereinbefore, were repeated in this proceeding, the same can be maintained or will be maintainable for the reasons as stated hereinbefore. There was of course no specific argument by Dr. Pai on the question of the constructive res judicata which was argued by Mr. Bajaria, excepting that he reiterated the submissions as were made by Mr. Ganguli, the particulars whereof, have been indicated hereinbefore, It should be noted that Mr. Bajuria contended that not only on the application of the Rules of res judicata but also on the application of constructive res judicata the points as were argued in this proceedings, were expressly taken and argued in the Division Bench judgment as mentioned barred as therefore hereinbefore. 32, It was further contended by Mr. Bajuria contended that not only on the application of the Rules of res judicata but also on the application of constructive res judicata the points as were argued in this proceedings, were expressly taken and argued in the Division Bench judgment as mentioned barred as therefore hereinbefore. 32, It was further contended by Mr. Ganguli that the acquisition proceedings in the instant case in respect of the properties in question, could not be continued or they could not be acquired without derequisitioning them and such point, being a new one, according to him, can be argued in this proceedings and for which the present writ petition was moved. In support of his submissions, Mr. Ganguli referred to the Single Bench decision of this Court in the case of (17) Dhone Gopal Mukherjee & Ors. v. The Secretary Land and Land Revenue Dept., Govt. of West Bengal, AIR 1966 Cal 848, The petition in that proceedings was directed against notifications under sections 4 and 6 of the West Bengal Land Development and Planning Act, 1948 (hereinafter referred to a8 "the West Bengal Act") issued against the petitioner's lands in C. S, plots 639-642 and 694 of Mouza Rahara and proceedings subsequent thereto and admittedly, these lands in question, were, on the 21st of May, 1944, requisitioned by the Land Acquisition Collector, Respondent No. 5 under Rule 73A of the Rules framed under the Defence of India Act. 1939 as per Annexure A for providing accommodation to Mill workers who were dislodged by military personnel petitioners case is that after the termination of World War II, the purpose for which the lands had been acquisitioned ceased and, at the request of the petitioners to release the lands for their own use for their Rubber Factory the Government of West Bengal, by its letters of the 1st August, 1949 and the 9th February, 1950 stated that the question of derequisitioning these lands was being actively considered by the Government and that the land would be released as soon as an alternative site was available for the persons then occupying the land (Annexure B). It appears from later correspondence that squatters had in the meantime occupied these lands and by their letter of the 31st August, 1951. It appears from later correspondence that squatters had in the meantime occupied these lands and by their letter of the 31st August, 1951. the Land and Land Revenue Department of the Government informed the petitioners that they bad instructed the Collector to apply before/the Competent Authority appointed under the Statute enacted in 1951, for the eviction of unlawful occupants from the Government premises, and this proceeding does not appear to have been disposed of since then. It would appear that thereafter, on 28th November, 1957, curiously, the petitioners were advised by the Collector 24-Parganas that the Government of West Bengal is the proper authority to release the requisitioned property by evicting, the refugees squatted thereon. .Further development in this connection may be had from the Government. It would also appear that after continued demands and representations for derequisitioning the lands, the Refugee Relief and Rehabilitations Department of the Government of West Bengal, by their letter of the 19th April, 1955 requested the petitioners to let them know whether they were "agreeable to dispose of the lands measuring 7.11 acres to Government at the rate prevailing in December, 1946 and then the petitioners communicated that disapproval of the proposal, the Government issued the notification under section 4 of the West Bengal Act on the 26th of April, 1958 stating that the disputed lands were required "for the settlement 'of the immigrants who had migrated to West Bengal", Their case in the concerned proceedings in short was that the proceedings for acquisition of the land under West Bengal Act while the lands were under requisition in exercise of the powers, under the Defence of India Act are illegal and mala fide and the State of West Bengal in their affidavit-in-opposition stated that the West Bengal Act bas been properly applied since the present occupants of these lands are displaced persons from Pakistan. In the separate affidavit filed on behalf of Respondents 4 and 5, it is stated, inter alia, that before the Inquiring Officer under section 4A of the West Bengal Act, the petitioners stated that they were willing to part with the disputed lands provided they were paid compensation at the rate of Rs. 600 per cottah. In the separate affidavit filed on behalf of Respondents 4 and 5, it is stated, inter alia, that before the Inquiring Officer under section 4A of the West Bengal Act, the petitioners stated that they were willing to part with the disputed lands provided they were paid compensation at the rate of Rs. 600 per cottah. As such, it was the primary contention of the petitioners was that since the initial order of requisition of 1944 is still subsisting it is not competent for the West Bengal Act, without first determinationing the lands and restoring them to the petitioners. The lands in dispute in that case were requisitioned in exercise of the powers under-Rule 75A of the Rules framed under the Defence of India Act. This requisition should have come to an end with the expiry of the Defence of India Act and the Rules made thereunder, but section 3 of the Requisitioned Land (Continuance of Powers) Act, 1947, continued the requisition made under the expired provisions, in these words. "Notwithstanding the expiration of the Defence of India Act, 1939, and the rules made thereunder...... ..all requisitioned lands shall continue to be subject to requisition until the expiry of the Act and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expe1ient : Provided that the appropriate Government may at any time release from requisition any requisitioned land." And there is no doubt that the concerned Act of 1947 was a temporary one and would have expired on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946, as extended subsequently. Before the said period could expire, the Government or India however made the Requisitioning and Acquisition of Immovable Property Ordinance on of 1952) which continued the requisition further. This Ordinance was later re/; aced by the Requisitioning and Acquisition of immovable Property Act (80 of 1952)-Sub-section (1) of section 24 of this Act repealed the Requisitioned Land (Continuance of Power) Act, 1947 and the Ordinance of 1952. but sub-section (2) of that section continued the requisition initially made under the Defence of India Rules as follows: "For the removal of doubts. but sub-section (2) of that section continued the requisition initially made under the Defence of India Rules as follows: "For the removal of doubts. it is hereby declared time any property which immediately before such repeal was subject to requisition under the provisions of either of the said Act or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under section 3 of the Act. and all the provisions of this Act shall apply accordingly and section 5(1) of that Act provided for derequisitioning or 're; case from requisition": "6(1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused in reasonable wear and tear and irresistible force: Provided that where the purposes for which any requisitioned property was being used case to exist the Central Government shall unless the property as soon as may be from requisition". The effect of the determination, which was made on consideration of the point as mentioned hereinbefore and which was involved in this case and so also the various cases as cited, the learned Judge had really observed that the lands in question, could not be acquired without a necessary derequisitioning order. It was thereafter pointed out by Mr. Ganguli, on the basis of the determinations in the case of Dhone Gopal Mukherjee' s case (Supra), that thus in the instant case, it was the bounden duty and obligation of the State Government auth0rities to forthwith withdraw the earlier order as passed in terms of the Ordinance and such duty or obligation was cast on them precisely and in fact, the same was their statutory duty. Mr. Ganguli further claimed that the fine as sought to be imposed in the instant case, can be realised under their said Ordinance, if anything is left, after the payment of the necessary amount of compensation and he claimed that the learned District Judge's power was circumvented in the instant case by the proceedings as taken as because of that, he 'was not allowed to discharge his obligation duly, under the said Ordinance or to discharge his duties and obligations as a public officer. In fact, he claimed that - the concerned acquisition in the instant case and that too without the award of due compensation, was barred under Article 31(2) of the Constitution of India and since the amount of such compensation in the case cannot be fixed, the acquisition proceeding should also fail because the person viz, the petitioner, who should at know, as to what was the amount of her deprivation. Mr. Ganguli of course, agreed that the power of the Central Government in the instant case was soverign and in a case of the present nature they had the dominant power to acquire/attach but the State Government under Article 256 of the Constitution of India has no such power or any interest. On the basis of the observations of the Supreme Court in Minerva Mil/'s case and more particularly on a reference to paragraph 92 of the report, Mr. Ganguli contended that the executive, as in this case, cannot be allowed to over-step their power and deprivation, if any, may be made, on the basis of the fundamental right as available to the petitioner on the date of the concerned deprivation. In was also claimed by him that the proceedings in the instant case were also bad, because of vagueness and boldness and more particularly when no particulars have either been given or specified as to the specific and real purpose, for which the proceedings were sought to be initiated. 33. The above submissions, as rightly pointed out by Mr. Bajoria, were not made or taken at the initial state of the proceedings but they were sought to be incorporated as new grounds by an application for amendment which was filed. Mr. Bajoria referred to the determinations in the case of (18) The State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 which has indicated that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research, and held that the plaintiff was a temporary hand and had no right to the post. Both under the contract of service and the service rules governing the plaintiff the State had a right to terminate his services by giving him one month's notice. Both under the contract of service and the service rules governing the plaintiff the State had a right to terminate his services by giving him one month's notice. The order was ex-facie an order of termination of service simpliciter. It does not cast any stigma on the plaintiff no does it visit him with civil consequences, nor is it founded on misconduct. In the circumstances the plaintiff could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution. Thus the High Court was in error in arriving at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the plaintiff, apart from holding that the Constitutional position as regards the powers of Court to go behind the orders of termination to find out motive of Government is clear. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practies, hardened suit has into a rule of law, itself and submitted that there is thus no real conflict with the determinations as made by the Single Judge of this Court in the case of Dhone Gopal Mukherjee's case (Supra). 34. It was further pointed out by Mr. Bajoria, on a reference to the objection filed by the petitioner under section 5A of the said Act, which was available from page 16 of the Paper Book in Appeal from Original Order No. 159 of 1971 The State of West Bengal & Anr. v. Molina Ghosh, that in fact, there was no genuine difficulties felt by the petitioner, in understanding the real purport and effect of the acquisition proceedings in question, and as such, no point of vagueness was over taken and really taken. The said Paper-Book was produced by Mr. Bajoria during the course of the hearing of this proceedings before us. v. Molina Ghosh, that in fact, there was no genuine difficulties felt by the petitioner, in understanding the real purport and effect of the acquisition proceedings in question, and as such, no point of vagueness was over taken and really taken. The said Paper-Book was produced by Mr. Bajoria during the course of the hearing of this proceedings before us. While on the point as mentioned hereinbefore, viz., the point having been specifically taken the or effect thereof, .reference was made by Mr. Bajoria to the case of (19) Munshi Singh & Ors. v. Union of India, AIR 1973 SC 1150 which has laid down that the person interested in the land proposed to be acquired must have an opportunity to submit his objections and that he can do only if the notification while mentioning the public purpose gives some definite indication or particular of the said purpose which would enable the persons concerned to object effectively and where the notifications merely mentioned that the land was needed for 'planned development of the area' and there was no proof that the interested persons were either aware of or were shown the scheme or the master plan in respect of the planned development, it was held that the persons were unable to object effectively and therefore the acquisition proceedings were liable to be quashed. He further indicated that the determinations in the case of State of U.P. v. Nawab Hussain (Supra), will not appropriately apply in this proceedings because the provisions in that case were construed in the context of a suit. 35. In reply to the submissions on delay as urged by Mr. Bajoria, the learned Advocate appearing for the petitioner stated that such point of delay was not taken earlier and to that Mr. Bajoria claimed that since the point of delay as taken, will be available to the Answering Respondents now, the same can be taken. He also pointed out that if the affidavit-in-opposition as filed by the Answering Respondents are taken into consideration or are duly considered it will appear that there was in fact, no delay upto 21st September, 1981, for initiating the concerned proceedings and delay, if any, as caused in tilts case, was really' by or at the instance of the petitioner and not at the instance of the Answering Respondent authorities. it is true and as argued by Mr. it is true and as argued by Mr. Bajoria, that the provisions of the said Act have not befit specifically challenged as ultra vires in this case at any stage and the concerned land acquisition proceedings, or the vires thereof, having been uphold up to the Supreme Court in the case of State of West Bengal v. S.K. Ghosh (Supra). this Court cannot and should not interfere in the proceedings and that too on the basis of the concerned challenges as thrown, even if rights under Articles 31 and 19(1)(f) of the Constitution of India are involved. In fact, he claimed that without being successful in striking out the proceeding under the said Act no challenges as thrown now by the petitioner. would be maintainable and in this case ~here has been no violation of Article 31 of the Constitution of India, since the market value of the property is being paid now under or in terms of section 23(1) of the said Act. It was further pointed out by Mr. Bajada that the said Act provides for higher compensation in case of a dispute and such challenge can well and very easily be determined in the proceedings which has been taken under section 18 of the said Act. It was also contended by him that the •provisions of Article 256 of the Constitution of India were not in conflict with the interest of the Union of India and the State Government and there has been deviation in the instant case, from the determination as made by the Division Bench of this Court in the case of State of West Bengal v. Molina Ghosh (Supra) and that being the position, even if the proceedings as sought to be amended and by such amendment, same grounds which were really urged previously and were taken before the Division Bench, were sought to be incorporated the plea as taken, should not be accepted or it cannot be accepted, that the declaration under section 6 of the said Act was vague and there has been not change of purpose as urged. In fact, in cannot be submitted or disputed that the grounds as were sought to be argued in this proceedings not only through the initial objection but also through the application for amendment, were really the same, which were advanced before the Division Bench judgment as mentioned hereinbefore. In fact, in cannot be submitted or disputed that the grounds as were sought to be argued in this proceedings not only through the initial objection but also through the application for amendment, were really the same, which were advanced before the Division Bench judgment as mentioned hereinbefore. Agreeing with the submission of Mr. Bajoria we also hold that the case of Dhone Gopal Mukherjee (Supra), will have no application in the instant case as the properties in that case which were requisitioned, were sought to be acquired without the necessary order of derequisition. We further find from the determination/observation in the case of (20) Aflatoon v. Lieutenant Governor, Delhi, AIR 1974 SC 2007 it would appear that the question whether purpose specified in a notification under section 4 of the said Act is sufficient to enable an objection to be filed under section 5A of that Act, would depend upon the fact and circumstance", of each case and in the case of an acquisition of an area of land comprising several plots belonging to persons, specification of the purpose can only be with reference to the acquisition of the whole area and therefore, the notification stating that an area of 34,070 acres of land was needed for public purpose, viz., the plan development of Delhi was a valid one and the petitioners in that case were not prejudiced and then the determinations in the case of Munshi Singh & Ors. v, Union of India (Supra), will not really and appropriately apply in this case of the petitioner since no prejudice for such not specifications as claimed, was really taken or specified in this case and while on the point a further reference may be made to the case of (21) Indrapuri Grihanirman Sahakari Samiti Ltd. v. The State of Rajasthan & Ors., AIR 1974 SC 2085 , where a writ petition challenging the notification under sections 4, 6 and 9 of Rajasthan Land Acquisition Act was filed after nine years from the date of the declaration under section 6, the writ petition was held to be rightly dismissed on the ground of delay, for, in such cases length of delay is an important circumstances because of the nature of the acts done during the interval on the basis of the notification and declaration. In fact, the above case has also in the case of Aflatoon & Ors. (Supra). Mr. In fact, the above case has also in the case of Aflatoon & Ors. (Supra). Mr. Bajoria then referred to the determinations in the case of (22) M/s. Radha Films Private Ltd. v. Stale of West Bengal, 1980(2) Cal LJ 265, where the State Government had requisitioned the premises described as Radha Films Studio, for the purpose of establishing a Television Studio under the provisions of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 and the Government had taken over possession of the requisitioned property and at present the Television Studio stands on the said premises. Thereafter, the State Government made a separate attempt to require the said premises under the Land Acquisition Act and notifications under sections 4 and 6 were duly published. Thereafter the petitioner moved a writ petition in the High Court and obtained a Rule. A point was taken that the acquisition under the Land Acquisition Act of a property already under requisition was not permissible in law and as such it has been that there is no legal bar in the way of the State Government acquiring a property which is already under requisition. It may be pointed out that in the case power of requisition or acquisition is exercised mala fide the Court exercising writ jurisdiction is entitled to strike down, the requisite order on the ground of malafide. It is not contended to the instant case, that the purpose for which requisition had been made has ceased to exist, On the other hand, the purpose for which the requisition was made and the purpose for which the acquisition is now proposed are substantially the same. The possession of the State or its allottee in the requisitioned property has not been claimed to be wrongful or illegal, apart from holding that the requisition of the property would obviously and the moment the property vests under the: Land Acquisition Act. Therefore during the entire requisition period, the State Government would be bound to pay compensation in accordance with law. The State Government would also be bound to pay compensation under the Land Acquisition Act for acquisition of the said property to persons interested. Therefore during the entire requisition period, the State Government would be bound to pay compensation in accordance with law. The State Government would also be bound to pay compensation under the Land Acquisition Act for acquisition of the said property to persons interested. Therefore there is no possibility of deprivation of the right of compensation of persons interested for the requisition period and there cannot be any valid reason why the determination of the compensation for the acquisition of property should be kept in abeyance till such time as the question of payment of compensation for requisitioning the property is finalised. There cannot be any question of anomaly or inconsistency by reasons of simultaneously holding the said two proceedings. It was then specifically indicated by Mr. Bajoria that there was no objection and in fact and really no point was taken against the vagueness of the notification in question and that being the position, this proceeding cannot be held to be bad or void. He further submitted that the mentioning of the purpose of "development of residential area" in the concerned notification or in the concerned declaration would be enough compliance with the requirement of the said Act. Mr. Bajoria has informed the Court that 4, Camac Street properly will be used only for residential and office purpose and not for the construction of National Theatre as mentioned earlier. 36. He further claimed that the provisions of section 6(3) of the said Act would not ordinarily be justiciable, unless the vagueness therein, can be proved or established. It was submitted by Mr. Bajoria that such vagueness as claimed in the instant case, not having been proved duly and through legal evidence, the proceedings as initiated, cannot also be held to be void, bad or illegal and in the instant case, according to him, there has really been no challenge of purpose as claimed. It was also claimed by Mr. Bajoria on the basis of the determinations in the Case of (23) Land Acquisition Collector & Anr. v. Durgapada Mukherjee, AIR 1980 SC 1678 , that the onus to prove and establish that the proceedings as taken in this case were in colourable use and exercise of power, lay on the petitioner and there, she has signally failed. As such, onus not having been duly discharged, the petitioner cannot take recourse to the submissions as put forward now in her defence. As such, onus not having been duly discharged, the petitioner cannot take recourse to the submissions as put forward now in her defence. 37. From a reference to our earlier recordings in this judgment, it would appear that the learned Single Judge referred the matter for the determination by a larger Bench, mainly on the basis of the determinations in the case of (24) Guru Das Kundu Chowdhury & Ors. v. The Secretary of State for India in Council, ILR Volume-XVIII Calcutta 244, where the Full Bench of this Court, in a case under the provisions of the said Act had occasions to consider the question of compensation of certain back lands or the effect of injury suffered for necessary acquisition, by the claimant appellants. In that case amongst others "there was one argument, rather, a suggestion drawn out by the concerned Municipality, that they do not intend to use the land which they have acquired for a sawage discharge depot, that they have abandoned such intention, and that they were willing to have such expression of their present intention inserted in the decree, and, In such view, they said that the claimants were not entitled to any compensation for injurious affection" and on such submission it has been observed that it was reasonable in seeking to fix the proportion of value between the back land and the frontage Land to consider how far the land in this country for one specific purpose, may not subsequently abandon that purpose and use the land so acquired for some other purpose for which they have not acquired it. In that case it has also been observed as per Banerjee, J. that the rent realised from the land is not the sole basis for determining the market value. The market value of any land is to be determined not necessarily according to its present disposition, but laid out in the most lucrative and advantageous way in which the owner can dispose of it and if, by reason of the declaration, the land, if offered for sale, would have fetched less, the land was injuriously affected not with standing that there was no actual diminution of the rent. Considering the determinations as made by the said Bench, agreeing with the submission of Mr. Bajoria, we held that the same has not really decided question, which has not been posed in this proceeding. Thereafter, Mr. Considering the determinations as made by the said Bench, agreeing with the submission of Mr. Bajoria, we held that the same has not really decided question, which has not been posed in this proceeding. Thereafter, Mr. Bajoria claimed that since the judgment in the Division Bench of this Court as mentioned earlier, which become final, because of the subsequent conduct of the petitioner as mentioned earlier and the points and so also the parties involved in this proceedings are the same, so the said determination was inter parties under the said Act and such being the position, he referred to the Case of (25) Secretary of State v. Amulya Charon, AIR 1927 Calcutta 874, where it was hely relying on a Privy Council decision, that "casts which are given by the Collector to person whose lands are acquired and who accept them with out prejudice, constitute valuable evidence in assessing the market value of the property in suit." On such facts, it was argued by Mr. Bajoria that since the question of compensation, subject to the necessary enhancement, if any, under the proceeding taken under section 18 of the said Act, has been accepted by the petitioner, she cannot again have the question of the acquisition proceedings under the said Act reopened and at best; according to him, she can claim for more compensation. 38. Mr. Bajoria claimed that the properties in the instant case were sought to be acquired bona fide and for an urgent purpose and so the petitioner would not be entitled to return of the properties, even if the acquiring authorities use the land for some other purposes. In fact, he made such submission 0.n a reference to the case of (26) Suresh Verma v. The State of Punjab & Ors, AIR 1971 P&H 406 , where it has been observed that where the State Government acquired the land for the construction of bus-stand and after having spent a substantial amount for that purpose transferred it to a State owned Corporation, the owner could not claim return of the land. Applying those tests and after placing the relevant facts, that the properties in question, for a long time, are not only been occupied but used by the acquiring authorities for the relevant 'purposes, it was claimed that the petitioner in the instant case, would not be entitled to ask for the return of the properties. 39. Applying those tests and after placing the relevant facts, that the properties in question, for a long time, are not only been occupied but used by the acquiring authorities for the relevant 'purposes, it was claimed that the petitioner in the instant case, would not be entitled to ask for the return of the properties. 39. The submissions on us judicata or the application of the rules of constructive res judicata as made by Mr. Bajoria and the particulars whereof have been indicated hereinbefore, were sought to be denied and disputed by Mr. Ganguli and he specifically submitted that even on the basis of the determinations by the Division Bench of this Court, in the case of The State of West Bengal v. Molina Ghosh (Supra), this proceeding well not be hit either by res-judicata or the Rules of constructive res judicata, the more so when, the provisions of Civil Procedure Code are not applicable directly in proceedings under Article 266 of the Constitution of India. This cannot be doubted or disputed that the very basis of res judlcara is a matter of public policy i.e., to prevent misuse of power and also to obstruct necessary harasment to the parties on the same facts and points, if they are decided on merits, repeatedly. Thus applying those tests we feel that if the point at taken in the instant proceedings are allowed to urged or this proceedings one continued...... on the basis of the such point which were directly or indirectly involved in the earlier proceedings before the Division Bench and so also before the Hon'ble Supreme Court India the very basis of the Rule of res judicata or application of principles analogous thereto will be frustrated, which certainly cannot be the intention of the Legislature and the Courts should also see, that such wholesome principle are followed and adhered to. It was, in our view, appropriately contended by Mr. Bajoria that the Rule of res judicata will apply not only to the grounds as taken but such Rule will be involved in the issues as raised in the proceedings. It was, in our view, appropriately contended by Mr. Bajoria that the Rule of res judicata will apply not only to the grounds as taken but such Rule will be involved in the issues as raised in the proceedings. We have indicated earlier that the case of Amalgamated Coal Field (Supra), which was also considered in the earlier Calcutta decision as referred to hereinbefore, will not also apply in the facts of this and the said Supreme Court Judgment has also been taken of and considered in the case of Nawab Hussain (Supra), as mentioned earlier. We further held and observe that the determinations in the case of Sailendra Nath Mullick v. The State of West Bengal & Ors. (Supra) and those in the case of Dunlop Mini Bus Owner's Association & Ors. v. Regional Transport Authority, Calcutta & Ors. (Supra), will not appropriately apply in the facts of this case. We further hold and find, on the basis of the determinations in the case of (27) Forward Construction Co. & Ors. v. Probhat Mandal etc. & Ors., AIR 1981 SC 391, in which case a plot of land was reserved under the Development Plan for Bombay and the verified Andheri Town Planning Scheme, for a bus depot of the Bombay Electricity Supply and Transport Undertaking (BEST). BEST proposed to build two buildings which would include the bus Depot. The carpet area spared after meeting the needs of the depot was to be given on rent. A writ petition challenging the user of the plot for commercial purposes came to be filed and was dismissed by the High Court. The validity of permission granted under Rule 4(a)(i) of Development Control Rules for charge of user of the plot to commercial purpose was not in issue in the writ petition. Subsequently another writ petition was filed for the same purpose but therein, the validity of permission granted under Rule 4(a)(i) of the Development Control Rules was specifically challenged and on such it was held in view of sec. 11. Explanation IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicious by its absence in the earlier petition. 11. Explanation IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicious by its absence in the earlier petition. As adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter's of claim or defence, that this case is really hit by Rules of res judicata or principles analogous thereto and it appeared that any decisions also fortified that principles of res judicata will apply in the facts of this case and that to determinations of the Supreme Court in the case of (28) G. K. Dudani & Ors. v. S. D. Sharma & On, AIR 1986 SC 1455 . 40. Mr. Gautam' Chakraborty appearing for the added Respondents and also in Appeal No. 3157 of 1984 which was disposed of by us on 30th October, 1984 viz., for Development Consultancy Pvt. Ltd. stated that the Company, initially made an application for addition of parties in the concerned proceedings disclosing their interest and B. C. Basak, J. by His order dated 21st August, 1984, was pleased to dismiss that application. The appeal as mentioned hereinbefore, was presented against that determinations on 15th September, 1984 and they also filed another application dated 17th September. 1984 in the present proceedings, for addition of party and that application was disposed of by us on 30th October, 1984 and thereby, we had allowed their application to be added as Respondents in the concerned Civil Order proceedings, subject to such objections that would be taken at the time of hearing. While making such order, we also made it clear that we had not made any order so far as other or any proceedings were concerned. In view of that order, the concerned Appeal was not pressed and as such, we had disposed of the same on the date as mentioned hereinbefore, after treating the same as on day's list. Mr. Chakraborty stated that his clients were interested in purchasing the properties in question and as such, deposited a sum of Rs. In view of that order, the concerned Appeal was not pressed and as such, we had disposed of the same on the date as mentioned hereinbefore, after treating the same as on day's list. Mr. Chakraborty stated that his clients were interested in purchasing the properties in question and as such, deposited a sum of Rs. 13 Lakhs under orders of the learned District Judge, Alipore, on account of earnest money. He claimed that S. K. Ghosh while alive, had contested the said proceedings before the learned District Judge concerned on 25th July, 1975 and on such contest, his clients withdrew a sum of Rs. 10 Lakhs under the orders passed by the learned District Judge and that too after the Division Bench judgment of this Court as mentioned earlier. Therefore, Mr. Chakraborty stated that thus, a sum of Rs. 3 Lakhs is still lying in deposit with the learned District Judge and in case the acquisition proceedings are held to be good and in order, the said amount which is still lying in deposit be directed to be returned to his clients. He, of course, made it clear that if we are of the view that the concerned acquisition proceedings were not bad, then the rights of his clients to purchase the properties, should not be prejudiced. 41. Thus, on the basis of the submissions as made on behalf of the petitioner, it would appear that the Camac Street property is the subject-matter of acquisition in this case and on or about 23rd August, 1944, the said Ordinance was promulgated under section 72 of the Nineth Schedule of the Government of India Act, 1955 and in terms of the said Ordinance, the said premises along with five other premises as mentioned earlier, remained attached, in exercise of the power under the said Ordinance. It would also appear that by virtue of the Criminal proceedings, initiated under the said Ordinance, the District Judge concerned, in exercise of his powers under sections 12 and 13(3) of the said Ordinance, held that the amount of 30 Lakhs together with the cost of attachment to be determine by him, were to be forfeited to the Union of India. It was claimed that in this case, the Dist. Judge has not as yet determined the cost of attachment, but has determined the amount of fine to the tune of Rs. It was claimed that in this case, the Dist. Judge has not as yet determined the cost of attachment, but has determined the amount of fine to the tune of Rs. 40 Lakhs, which is to be paid to the State Govt. It was further pointed out that as long all the amount of forfeiture and the cost of attachment to be determined by the Dist. Judge, is not paid to-the Central Government, the properties should remain attached and in fact, attachment has not been withdrawn and thus the interest, lien and charge of the Central Government, in respect of those properties, are kept intact and in that view of the matter, those properties cannot be acquired by the State Government nor own those properties vest in them, free from all encumbrances. It was also pointed out that neither-any notice of the acquisition proceeding has been given to the Central Government nor is the Central Government, a party to such proceeding. As such, the acquisition proceeding itself was bad and the said point bas not been decided by the Division Bench Judgment as mentioned earlier. 42. The contention of the petitioner was that the said Ordinance is an existing law within the meaning of Article 366(10) of the Constitution of India, as well as laws in force within the meaning of Article 13(3)(b) of the Constitution of India. It was pointed out that the said Ordinance was promulgated by Indian Legislature, which is equivalent to Parliament under the Constitution, so the said Ordinance is promulgated in the exercise of power of Parliament and the said Act is promulgated by virtue of the Legislative Power in the List III, of the Concurrent List and more particularly, Item 42 of the Seventh Schedule in the Concurrent List. Therefore, the law as made by Parliament i.e., the said Ordinance shall proved over the law made in respect of a subject in the Concurrent List in terms of Article 254 of the Constitution. In that view of the matter, it was claimed that the order of attachment under the said Ordinance, in order to protect the interest of the Central Government, must prevail over the order of acquisition under the said Act and such proposition was not decided or argued in the Division Bench judgment as mentioned earlier. In that view of the matter, it was claimed that the order of attachment under the said Ordinance, in order to protect the interest of the Central Government, must prevail over the order of acquisition under the said Act and such proposition was not decided or argued in the Division Bench judgment as mentioned earlier. It was also contended that the orders of acquisition are ex facie, mala fide inasmuch as on the day i.e., on 29th August, 1962, notification under section 4 of the said Act was passed in respect of all the properties and that being the position, there cannot be any bona fide formation of opinion as to the necessity of acquisition of all the• properties in public interest. Furthermore, the said purported acquisition was for the purpose of office and residential acc0mmodation in Ward No. 59 of Calcutta Municipality and it is absurd on the face of it, that all the properties are required to serve the said purpose. It was argued that mere recital of the phrase public purpose does not prove public purpose and when the existence of such purpose is challenged, the same has to be proved by the Government, who asserts on such purpose. In this case, it was claimed that no such material has been placed. It was then contended that there was no such existence of public purpose, would also be proved by the subsequent fact, whereby, the Government wanted to change the purpose. Such change of purpose was claimed to be permissible only when the property vests in the acquiring authority. In this case, the claim was that the properties cannot vest for the reasons stated above. As such, change of the public purpose and the substitution of the same by another purpose was wholly bad in law and a fraud on power inasmuch as the properties cannot vest in the acquiring authority as long as the interest of Central Government remains and the right of the Central Government, created under a law, cannot be extinguished by an executive order of requisition under the said Act. In other words the Central Government cannot be divested of its right created under the law made by the competent legislature, on the basis of a mere executive order and the claim was that this point has also not been decided by the Division Bench. 43. In other words the Central Government cannot be divested of its right created under the law made by the competent legislature, on the basis of a mere executive order and the claim was that this point has also not been decided by the Division Bench. 43. Then, it was contended that the matter can be looked into from another angle also. In respect of the properties in question, the appropriate legislature has respected the private right of the owners namely Shri S. K. Ghosh (since deceased) and such right of the owner is recognised by the said ordinance and therefore, the properties in respect• of which, the proper legislature has created right of the owners, the said right Cannot be taken away and/or extinguished by the State Government, by passing any executive order of acquisition, in exercise of its power under 'Eminent Domain', It was also pointed out that it is well settled as a principle of construction that all the statutes relating to the power of Eminent Domain, such statute should be strictly construed in favour of the land owner and against the authority exercising such power and it is extremely doubtful, whether the power of Eminent O,)main will be exercised in respect of the properties, which are subjected to a different law enacted by a competent legislature as in the instance case. It was then indicated that it is further well-settled, on authorities that in case of any doubt, the same must be resolved against two powers granted and in this case, the predecessor in office of the Central Government, committed itself to a particular stand about the said properties, by enacting a law as to how to deal with them. The said Ordinance is therefore, a representation to all concerned by appropriate legislature, as to how the said properties wou1d be dealt with and such law in question has not been changed/modified or repealed or altered. It was claimed that without altering/modifying/repealing the said law, the State Government, which is bound by the said law, is estopped from exercising its power of acquisition, which is contrary to the representation made by the Central Government in respect of the 6 properties. 44. In other words it was argued that the State Government must, before initiating acquisition proceeding in respect of the self-same properties. 44. In other words it was argued that the State Government must, before initiating acquisition proceeding in respect of the self-same properties. should have taken into consideration, the legislative intent in respect of the properties and the avowed and declared policies of the said Ordinance and the State Government, cannot, ignoring the said avowed and declared policy, act in a manner which was contrary to such policy. In fact, the State Government, was claimed to be estopped from exercising its power in a manner which was contrary to the said Ordinance, which is a law declared by the Central Government. In this connection reference was also made to Article 256 of the Constitution of India, which prescribes that exercise of executive power of the State, shall be so done as to ensure compliance with the law made by the Parliament. In this case, it was argued that the said Ordinance is an existing law and as such, the executive power of he State, must be exercised to ensure the compliance with that law and in this case, exercise of power of the State namely issuance of a Notification under section 4 of the said Act has been exercised, to nullify the said existing Jaw, which applies to the State. Therefore, the exercise of power under section 4 of the said Act and a II steps taken there under was unconstitutional and contrary to Article 256 of the Constitution of India 2nd was thus void and without jurisdiction. It was pointed out that such point also has not been decided by the Division Bench. It was further claimed that there was also gross delay in the matter of the acquisition and in fact, after the disposal of the matter in 1977, the Government did not take any steps, excepting illegally changing the purpose and there was no explanation for .such delay. It was claimed that the unexplained delay of more than 4 years, shows that the authorities were acting unreasonably and arbitrarily and thus offending Article 14 of the Constitution. 45. The object of the said Ordinance will appear clear from the determinations of the Supreme Court in the case of The Stale of West Bengal v. S. K. Ghosh (Supra) and that being the position, we are not required to deliberate again on the same or the purport of the said Ordinance. 45. The object of the said Ordinance will appear clear from the determinations of the Supreme Court in the case of The Stale of West Bengal v. S. K. Ghosh (Supra) and that being the position, we are not required to deliberate again on the same or the purport of the said Ordinance. There is of course no doubt that under or in terms of the same, both attachment and fine would be possible and permissible. There will also be no doubt that the said Ordinance was promulgated for maintaining peace and good Government and the question of acquisition of properties thereunder, should thus necessarily be, for or imply a. public purpose. There has really been challenge thrown in this proceeding, on the basis of the provisions of the said Ordinance and not on the basis of the acts done or actions taken under the said Act. In fact, agreeing with the submissions of Mr. Bajoria as indicated hereinbefore, we hold that any challenge to the said Act or the steps taken thereunder, would not be available to the petitioner, in view of the Division Bench judgment dated 22nd April, 1977, made in the case of State of West Bengal & Anr. v. Smt. Molina Ghosh (Supra), as the contentions as sought to be argued and raised herein, were raised and they have been concluded by necessary findings there and more particularly, on the issues regarding the general and special law as urged now. It may also be pointed out here incidentally, that in both the proceedings as mentioned above, one of the effective points for determination was the power of acquisition of the Government under the said Act, and that being the position and since repeated challenges of a proceeding on the same issues and fact or grounds, would not be permissible, so if no new ground has really been urged, which is the case here, this proceeding would not also be maintainable. We have also no hesitation in holding that the points which were raised but not argued, will be deemed to have the effect of deciding them against the contesting party, more particularly, if and when, the proceedings were inter-parties, which incidentally, is also the case here and furthermore when, the lis or the challenges thrown, were and are the same. We have also no hesitation in holding that the points which were raised but not argued, will be deemed to have the effect of deciding them against the contesting party, more particularly, if and when, the proceedings were inter-parties, which incidentally, is also the case here and furthermore when, the lis or the challenges thrown, were and are the same. In fact, excepting the present grievance on the ground of some inventory, the points and the lis involved in the concerned two proceeding were and are the same and they have been concluded by finding of fact and have become final in the earlier proceeding before and by a Division Bench of this Court. 46. It is true that change of purpose as was sought to be argued now, was not appropriately argued in the earlier proceedings. But such point has not been categorically taken in this proceedings and in any event, it is very difficult for this Court to allow such argument to be advanced by the petitioner, as admittedly, from the attending circumstances of the case and her conduct, it would be abundantly clear, that the petitioner has accepted the validity of the proceedings under the said Act and if at all, her only grievence was against the fixation of compensation only and for which, proceedings under section 18 of the said Act have been taken. She bas in fact and really, asked for such fixation, on the basis of the rates as prevailing in 1981. On comparison of the prayers and the facts as stated in the two proceedings, there cannot further be any doubt, that they are effectively the same and that being the position, we hold and observe that the learned Trial Judge in this case, was justified in holding and observing that be cannot travel beyond the concerned determinations in the earlier Division Bench judgment of this Court or deliberate on any matter which has been adjudicated or could have been adjudicated, if such points were involved in the said Division Bench determination. But, he was not right in bolding that the determinations in the case of Guru Das Kundu Chowdhury & Ors. v. The Secretary of State for India in Council (Supra) and these in the case of Gadadhar Ghosh v. The State of West Bengal & Ors. But, he was not right in bolding that the determinations in the case of Guru Das Kundu Chowdhury & Ors. v. The Secretary of State for India in Council (Supra) and these in the case of Gadadhar Ghosh v. The State of West Bengal & Ors. (Supra), were required to be reconsidered in the facts of this case and more particularly, on the question of the change of purpose as urged by a larger Bench, as we have already indicated that the earlier Full Bench judgment of this Court in the case of Gurudas Kundu Chowdhury (Supra), was on a different point and has not really decided the question or the point, as has been sought- to be raised now and in this proceeding. The judgment of the earlier Division Bench of this Court in the case between the same parties, became final for the reasons as indicated earlier and such being the position, the petitioner, because of her conduct, would be estopped from cha1!enging the acquisition proceeding under the said Act, in terms of the observations in the case of Secretary of State v. Amullya Charan (Supra) and more particularly when, she bas accepted the validity of the Same and has only applied for enhancement of the compensation amount in a proceeding under section 18 of the said Act, and such claim for enhancement of the compensation amount, can well, very easily and conveniently decided in that proceeding. 47. On consideration of the relevant dates as mentioned hereinbefore, there is also no doubt or any dispute that this proceeding, on the self-same and similar cause of action as was involved in the earlier Division Bench proceedings, was initiated, if not after 26 years, but at least after 19 years and such being the position, and since not only the case facts relating to the challenge to the said Act, were involved, but the issues involved in both the proceedings were and the same, we feel that this proceeding would hit by Rules of res judicata or principles analogous thereto. There is also no doubt, but it would appear also clear further from the legal evidence as available from the records of this proceeding and which have also been recorded by two learned Single Judges of this Court as indicated earlier, that the petitioner before us now, was and is guilty of approbating and reprobating and in fact, because of the action as taken by her or at the instance of others, the acquisition proceedings could not be completed rather the same has been delayed and kept pending for such a long time. 48. The submission on forfeiture as was made on behalf of the petitioner, on consideration of the grounds as taken and so also the submissions as made, we are of the view, will not be available to her now or at this stage, since the facts of this case, would show, 'prove and establish, that the case under consideration is not really and effectively a case of forfeiture of the properties in question and as such, it cannot also be doubted or disputed that under the provisions of the 'said Ordinance, the dominant purpose of the acquisition would be to realise the amount and not to consider the culpabiliry of the properties in issue and the same would have thus be to secure money, which is also different distinct and separate from forfeiture. This question of forfeiture was not only taken, but the same has also been delt with and as such not only by the earlier Division Bench judgment of this Court between the same parties, but also by the Supreme Court in the case of State of West Bengal v. S. K. Ghosh (Supra) and for that admitted position, the grounds on forfeiture as taken or sought to be urged now, in our view, it would also be hit by Rules of res judicata or principles of analogous thereto or at least or as submitted by Mr. Bajoria, by constructive res judicata, more particularly when, similar issues, as expressly raised, were repelled and not accepted on consideration of merits and the other relevant facts in that case. It should be noted here and as indicated earlier, that the existence of public purpose was neither actually disputed in this proceeding nor in the earlier proceedings before this Court by the petitioner. It should be noted here and as indicated earlier, that the existence of public purpose was neither actually disputed in this proceeding nor in the earlier proceedings before this Court by the petitioner. While on the effect of issues raised but not argued, following the observations in the case of Devital Modi v. Sales Tax Officer, Batlam & Ors. (Supra), we find that no interference can or should be made or possible in this proceeding, as, it such interference is made now, the effect would be to nullify and set aside the determinations as made by the earlier Division Bench of this Court, more particularly when, the legality and validity of the proceedings under the laid Act as challenged, were and are the same and as, such effect, in our view, would not only be unwanted, but would create a disastrous and anamolous result and particularly when the cause of action i. e., the legality and validity of the proceeding as challenged under the said Act were and are the same. The above view would also gets support from the case of Azizus Subhan v. Union of India etc. (Supra), which has also laid down that the points which might and ought to have raised in the earlier petition, but they were not raised will not exclude the operation of the principles of res judicata. It should be noted than such determinations have also been referred to in the case of Baryao & Ors. v. State of U. P. & Ors. (Supra). 49. There cannot also be any dispute on the fact or the question and that too in terms of the determinations in the case of State of U. P. v. Nawab Hussain (Supra), that cause of action gives rise. v. State of U. P. & Ors. (Supra). 49. There cannot also be any dispute on the fact or the question and that too in terms of the determinations in the case of State of U. P. v. Nawab Hussain (Supra), that cause of action gives rise. to an action and such being the position, in view of the facts as stated herein before, the grounds or points as sought to be urged now, according to us, would be expressly barred on application of the Rules of res judicata or principles analogous thereto and while making a determination in this case, one cannot and should not also forget the fact that an application under section 18 of the said Act has been filed by the petitioner, asking for enhancement of rates and for that also, she would be debarred from challenging the acquisition as a whole under the said Act, as by such conduct, she has really accepted the acquisition proceeding under the said Act and for that also, she will not be entitled to approbate and reprobate. We cannot agree with Mr. Gaoguli's submissions that the points as sought to be. urged and raised now, are new points, and those points were not raised or argued in the earlier Division Bench judgment and that being the position, the Rules of resjudicata or principles analogous thereto, would not apply in this case, following the determinations •in the case of Amalgamated Coalfields Ltd. & Anr. v. Janopada Sabha Chindewru & Ors. (Supra). The above determination bas been considered in the case of State U.P. v. Nawab Hussain (Supra) and considering the cases as cited at the Bar on the point, we feel difficulty in accepting the submissions of Mr. Ganguli, that this proceeding is not barred or would not be hit by Rules of res judicata .or principles analogous thereto. If we test the submissions as made, on the basis of the determinations in the case of Mysare State Electricity Board v. Bangalore Woolen Colton and Silk Mill. Ltd. & Anr. (Supra), it is true that before making apy determination over an issue, the nature of litigation as involved, will have to be checked and considered, but even on such checking and consideration of the lis as involved in this case, we cannot agree with the submissions of Mr. Ltd. & Anr. (Supra), it is true that before making apy determination over an issue, the nature of litigation as involved, will have to be checked and considered, but even on such checking and consideration of the lis as involved in this case, we cannot agree with the submissions of Mr. Ganguli that the Rules of res judicata or principles analogous thereto, will not be applicable in the present proceedings. The above case is certainly distinguishable on fact and on the basis of the determinations in the case of Forward Construction Co. & Ors. v. Probhat Mandai & Ors. (Supra) and G.K. Dudani & Ors. v. S. D. Sharma & Ors. (Supra), it becomes difficult for us to bold in agreement with the submissions of Mr. Ganguli, that the Rules of res judicata or principles analogous thereto will not apply in this case. At one stage, it was submitted by and on behalf of the petitioner that since no steps have been taken after the determinations of the Division Bench of this Court on 22nd April, 1977, if delay has been caused, that was not by the petitioner, but the same was by the Respondent State Authorities, because they have taken steps after a long lapse of time. The explanation as given by Mr. Bajoria, in answer to such delay as caused by the State Respondent, in taking the relevant action and the particulars whereof we have indicated earlier, appeared to us to be substantial and really, in view of the pendency of different proceedings, they were not in a position to take steps immediately after 22nd April, 1977. Thus, we hold that there has in fact, no undue delay caused by the Respondent State Authorities and the completion of the proceedings have particularly been delayed at the instance of the petitioner. 50. At one point of time, it was sought to be argued on behalf of the petitioner that even if the Rules of res judicata applies, the proceeding will not be hit by the principles of constructive res judicata as claimed. The determinations as cited at the Bar, we have indicated earlier, and we find that the contentions of the petitioner will not apply in this case appropriately. The determinations as cited at the Bar, we have indicated earlier, and we find that the contentions of the petitioner will not apply in this case appropriately. No doubt, the fundamental right of the petitioner, to hold, acquire and possess the properties in the instant case, was sought to be infringed or interfered with, but even if we consider such fact, on the basis of the determinations as cited at the Bar, we find that the petitioner would be estopped from raising such plea at this stage and after the earlier Division Bench judgment, the particulars whereof, have been indicated hereinbefore and which has appropriately dealt with all the relevant facts and factors and which determination again, has become final, because no proceeding was or has been taken against such determinations after the Special Leave Petition to the Hon'ble Supreme Court of India was rejected. We further find that the observations in Dhone Gopal Mukherjee's case (Supra), will not also apply appropriately in the facts of this case. We are of the view that in terms of the determinations in the case of State of U.P. v. Ram Chandra Trivedi (Supra), the new ground, as has been sought to be urged now, through the application for amendment, cannot be allowed to be argued and in fact, the observations as made therein, have also no conflict with the determinations in Dhone Gopal Mukherjee's case (Supra). We have earlier indicated, why the cases of Sailendra Nath Mullick v. State of West Bengal & Ors., (Supra) and Dunlop Bridge Mini Bus Owners Association & Ors. v. Regional Transport Authority Calcutta Region & Ors. (Supra), are distinguishable in the facts of this case or will not apply here. 51. We have earlier indicated, why the cases of Sailendra Nath Mullick v. State of West Bengal & Ors., (Supra) and Dunlop Bridge Mini Bus Owners Association & Ors. v. Regional Transport Authority Calcutta Region & Ors. (Supra), are distinguishable in the facts of this case or will not apply here. 51. The objection as filed by or on behalf of the petitioner under section SA of the said Act, which was considered by the earlier Division' Bench judgment, would also be of relevant consideration and therefrom, it would further appear that really no genuine difficulty was felt by the petitioner, in understanding the actual purport, import and effect of the concerned acquisition proceedings and - as such, no point regarding vagueness was ever raised and that being the position, on the basis of the determinations in the case of Munshi Singh & On v. Union of India (Supra), we find that the arguments as sought to be advanced now, will not really be available to the petitioner. While on the question of amending the case during the course of the proceedings before us, we find that by such amendment, really no new ground was sought to be incorporated, but the grounds which were directly or indirectly involved and covered in the earlier Division Bench judgment, were sought to be brought in. In view of the above, we also find that the determinations in Dhone Gopal Mukherjee's case (Supra), will have no application in this case and here, we feel, that we are also fortified by the observations in the case of Aflatoon v. Lieutenant Governor, Delhi (Supra), since no prejudice for any non-specifications as claimed, was really felt or taken or specified in this case by the petitioner. Here also, we must have it on record that in Aflatoon's case (Supra), the case of Indrapuri Grihanirman Sahakari Samiti Ltd. (Supra), has also been referred to and the particulars of the same, we have indicated earlier. There was also no doubt that the provisions of section 6(3) of the said Act would not ordinarily be justiciable, unless of course vagueness of the same, as claimed in this case, amongst others, can be proved and established. There was also no doubt that the provisions of section 6(3) of the said Act would not ordinarily be justiciable, unless of course vagueness of the same, as claimed in this case, amongst others, can be proved and established. For the view which we have expressed on the submission of vagueness, we also think that the sub-missions as put forward now on behalf of the petitioner, would be of no avail or any assistance and in terms of the Supreme Court in the case of the Land Acquisition Collector & Ors. v. Durgapada Mukherjee (Supra), the onus to prove and establish such vagueness of the proceedings in question, or they were taken and initiated in colourable use and exercise of power, lay on the petitioner, but she has failed to discharge such onus here and that being the position, she will also be debarred from putting forward the submissions as sought to be made now. 52. The purposes of the acquisition have been indicated earlier and such purposes would certainly come under the umbrella of public purposes, which will not ordinarily be justiciable and in our view, the petitioner bas not been able to establish by any legal evidence, that the purposes as involved were neither public purposes nor the opinion for formation of such opinion was not bona fide or legally formed or there has been any mala fide intention and purpose behind the formation of such opinion. There is also no legal evidence forthcoming in this case, on the basis whereof, we can conclude that the properties in question, were not acquired bona fide or they were sought to be acquired for any collateral purpose and as such, in terms of the observations in the case of Suresh Verma v. State of Punjab & Ors. (Supra), she would not be entitled to return of the properties, the more so when, the properties so acquired, are being occupied and used by the authorities concerned, for the purposes as involved. 53. It is true and as .argued by Mr. Ganguli that there cannot be any estoppel against the fundamental right to hold and possess properties, in terms of the decision in Basheshar Nath's case (Supra), and the case of Olga Tellis & Ors. (Supra). 53. It is true and as .argued by Mr. Ganguli that there cannot be any estoppel against the fundamental right to hold and possess properties, in terms of the decision in Basheshar Nath's case (Supra), and the case of Olga Tellis & Ors. (Supra). But such right must also be considered and controlled in the light of the public policy as involved in or behind the incorporation of section 11 of the Code of Civil Procedure, otherwise the result will be no better than what we have indicated earlier. 54. For the reasons as indicated by us, we feel that this proceeding cannot succeed and as such, the Rule should be and the same is discharged. There will of course be no order as to costs. We have indicate earlier the submission made by Mr. Chakraborty, appearing for the added Respondents. As a consequence of our determinations, we feel and direct that the balance of the amounts of his clients, which are lying with the learned District Judge, Alipore, should be returned and refunded atonce. Stay as prayed for is refused. Basu, J.: I agree.