JUDGMENT Basically the petitioner made this writ petition for the purpose of commanding the respondents to release the excess land measuring 17 Cottahs at 59, Bagmari Road, Calcutta to the petitioner in view of the release order made by the respondents No. 2 herein dated 20.4.98 being Annexure ‘F’ to the writ petition. 2. He also made the prayer to direct the respondents to forbear from making any such development and/or construction work under the development scheme and/or making any such addition, alteration or construction of the said exempted land measuring 17 Cottaht of the said exempted land being 59, Bagmari Road, Calcutta etc. 3. Between late February and early March 1997, Calcutta Improvement Trust being requiring body of the concerned land started negotiating with one M/s. Rashtriya Pariyojona Nirman Nigam Limited for the purpose of construction of Market-cum-Commercial Complex therein. On 5th March, 1997 the first Land Acquisition Collector, Calcutta informed the petitioner with reference to the letter dated 11th October, 1996 that they acquired an area of 6 Bighas 5 Cottahs of land under L.A. Case No. VII-M/106 of 1954 for C.I.T. Scheme No. VII-M (Maniktala Main Road to Ultadanga Main Road). Thereafter no L.A. proceedings has been initiated as yet in respect of the said property by any department of State Government. On 11th March, 1997 Calcutta Improvement Trust issued work order upon the aforesaid contracting party. On 12th March, 1997 the petitioner informed the Chief Valuer of the Calcutta Improvement Trust that Land Acquisition Collector issued a certificate regarding the acquired land of the above subject property with a request to demarcate the balance land which is now remaining outside the scheme and project of C.I.T. The petitioner agreed to pay all requisite fees for the demarcation affairs. 4. On 9th June, 1997 Chief Valuer of the Calcutta Improvement Trust came to the finding that premises No. 59, Bagmari Road, Calcutta had been fully acquired under Land Acquisition Act, 1894 by the L.A. Collector, Calcutta and possession of the said premises measuring about 6 Bighas 5 Cottahs had been handed over to C.I.T. as per provisions of L.A. Act, 1894, and no balance land remains in the said premises. Upon demarcation of the balance land of premises No. 59, Bagmari Road, is neither feasible nor plausible. 5. Upon demarcation of the balance land of premises No. 59, Bagmari Road, is neither feasible nor plausible. 5. Real crux of the case stands on measurement of the land in excess measuring 17 Cottahs and/or exemption of the same from the acquired land. There is no doubt that a land measuring 6 Bighas 5 Cottahs was acquired in the year 1954 and compensation was paid in respect of such acquisition to the appropriate party. There is no existing dispute to that extent. 6. However dispute as cropped up resulted to an order passed by a Single Bench of this Hon'ble Court in disposing a writ petition being W.P. No. 9456 (W) of 1997 on 10th June, 1997 which speaks as follows :- “In presence of Mr. Gupta, learned Senior Advocate on behalf of the state-respondents, this writ petition is disposed of with a direction upon the concerned authority to consider the prayer of the writ petitioner for the purpose of demarcation of the land in question in pursuance of his representation dated 12th March, 1977 in accordance with the provisions of law as expeditiously as possible preferably within a period of 8 weeks from the date of communication of this order.” 7. The word ‘concerned authority’ has some significance in the matter and law says ‘concerned authority’ signifies acquiring authority but not the requiring authority. 8. No appeal was preferred from the order by any of the parties. Acquiring authority has acted upon on the basis of such order. 9. No appears from the report of the Second Land Acquisition Collector, Calcutta i.e. being part of acquiring authority dated 20th April, 1998 which that he was made an inspection and ............ that there is land in ......... amounting to an area of 17 Cottahs and 5 Chittaks in a ......... at the eastern side of premises Nos. 59 and 60, Bagmari Road, Calcutta as shown in the plan as the said land awarded in favour of Government and at present Calcutta Improvement Trust is in possession. Therefore, release order was issued accordingly. 10. amounting to an area of 17 Cottahs and 5 Chittaks in a ......... at the eastern side of premises Nos. 59 and 60, Bagmari Road, Calcutta as shown in the plan as the said land awarded in favour of Government and at present Calcutta Improvement Trust is in possession. Therefore, release order was issued accordingly. 10. Since no appeal was preferred from the aforesaid order passed by a Single Beach of this Hon'ble Court on 10th June, 1997 and since appropriate part of competent authority of the State, in compliance of such order taken measurement and found that the land in question being 17 Cottahs 5 Chittaks at the eastern side of premises Nos. 59 and 60, Bigmari Road, Calcutta and passed release order to that extent there is no scope for the Calcutta Improvement Trust. In this respect, being the requiring authority to oppose such contention either on their behalf or on behalf of the acquiring authority i.e. Land Acquisition Collector but to release the same. 11. To strengthen my observation I have carefully considered all other annexures to the writ petition all well as affidavits wherefrom I found that everywhere the measurement of the acquired land even prior to the date of the order passed by a Single Bench of this Court on 10th June, 1997 found to be the area of 6 Bighas 5 Cottahs as acquired under L.A. Case No. VII-M/106 of 1954 for C.I.T. Scheme No. VII-M (Maniktala Main Road to Ultadanga Main Road) from the subject property and award was given in respect thereof. 12. Therefore, from the ultimate analysis of the aforesaid aspects, it is crystal clear that the petitioner has a prima facie cause of action in this respect which is neither belated as regards to the demarcation nor for any involvement of third party. In effect, the cause of action of this application flowing from an order of the Court and consideration in respect thereof. 13. At the initial stage of hearing, this Court was inclined to pass an order for appointing, a Special Officer for the purpose of physical verification and measurement of the land. In effect, the cause of action of this application flowing from an order of the Court and consideration in respect thereof. 13. At the initial stage of hearing, this Court was inclined to pass an order for appointing, a Special Officer for the purpose of physical verification and measurement of the land. Although, the petitioner was willing but the Calcutta Improvement Trust was not willing for the same which obviously created cloud in the mind of the Court as to whether the requiring body is trying to hide the actual picture before the Court of law or not. 14. However, this Court was pleased to pass an order of status quo in respect of the land in question and postponed hearing in a future date but surprisingly within such period of order of status quo, a purportedly newly. Appointed First Acquisition Collector, Calcutta by a memo No. 63-LA (II) dated 12th March, 1999 cancelled the order passed by an appropriate authority in this respect being memo No. 216/1(3)-LA dated 20th April, 1998 along with the report with supporting plan forwarded to the petitioner. This action also formed cloud in the mind of the Court. It is obviously afterthought and brain child of delayed legal advice. However, giving effect of the order was estopped by this Court. 15. Thirdly, on the date of final hearing when this Court enquired about the conduct of the Land Acquisition Collector in this respect and wanted a plausible answer from them, learned Counsel of the Calcutta Improvement Trust intervened and argued at length in one hand with regard to scope and ambit of the Land Acquisition Act, 1894 and to protect their interest, on the other hand, took part in criticising the conduct of the Land Acquisition Collector. This stand also formed cloud in the mind of the Court. 16. Acta exteriora indicant interiora secreta i.e., external acts indicate the secret mind. Under this background balance of convenience obviously strikes in favour of the petitioner in getting equitable relief. 17. Moreover, if the same would have been the position in respect of the State would they have released a private citizen? 16. Acta exteriora indicant interiora secreta i.e., external acts indicate the secret mind. Under this background balance of convenience obviously strikes in favour of the petitioner in getting equitable relief. 17. Moreover, if the same would have been the position in respect of the State would they have released a private citizen? If that would not have been the position the same cannot be done by any State machinery as against a private citizen specially when law is well settled in respect of the protection of the private citizen as against the State machinery in respect of unfair play, discriminatory or arbitrary actions. This Court is astonished to know that a State machinery want to retain excess land without any legal proceeding. Such activities, in effect, hit by Article 300A of the Constitution of India. 18. Therefore, principle of inordinate delay and entitlement of relief on that score in favour of the contesting respondents is not available in the fact situation. Accordingly, ratio of (1) AIR 1979 SC 1713 , Babu Singh & Ors. v. Union of India & Ors., Paragraph 11 and (2) AIR 1997 SC 482 , Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Pvt. Ltd & Ors., Paragraph 19 and last part of 22 are inapplicable herein. Similarly matter of reopening of case does not arise herein because the demarcation does not relate in respect of acquisition of 6 Bighas 5 Cottahs of land and compensation paid thereon. Moreover, right of measurement flows from on order of this Court from which no appeal was preferred ....due compliance was given thereto. 19. A further argument was put forward in respect of applicability of different sections being Sections 8, 9(2), 11, 12 and 18 of the Land Acquisition Act but the same cannot form part and parcel of the strength of argument of the contesting respondents because of the reasons that the case proceeded on a given cause of action under an order of Single Bench of this Hon'ble Court, having binding effect in respect of the demarcation and it appears for some reason or other the requiring body is trying to avoid the demarcation. Therefore, the cause of action derives from the order of a Single Bench of this Hon'ble Court dated 10th June, 1997 cannot be put to be a cause of action relate back to 1954. 20. Therefore, the cause of action derives from the order of a Single Bench of this Hon'ble Court dated 10th June, 1997 cannot be put to be a cause of action relate back to 1954. 20. The requiring body also emphasized more in respect of maintainability of the application on the basis of the relevant provisions of the act being Land Acquisition Act, 1894. Moro emphasize was given on Section 12 read with Section 26(2) of the Act by saying that award passed by the Collector shall be deemed to be a decree and, therefore, it cannot be challenged before a Writ Court but there is no answer that award about which land. It is also stated that if a person is aggrieved he may ask for reference to the concerned Collector under Section 18 of the Act. 21. There is a fallacy in respect of the argument as above...... there is no explanation by the respondents-Counsel on that score upon enquiry made by this Court. Section 18 provides for making an application before the Collector who has not accepted the awarded amount. This is not the case that the petitioner that he has not accepted the awarded amount. In the instant case petitioner did accept the awarded amount but in respect of the land measuring 6 Bighas 5 Cottahs and the allegation is that the requiring authority holding excess land without any sanction of law for which he is entitled for a measurement. On top of it there is an order of this Court to that extent and the authority concerned proceeded accordingly and held that there is excess land. Therefore, in this writ petition, then petitioner is entitled for executory relief. 22. Therefore, two courses are open for the requiring authority either to release the excess land to the petitioner as prescribed under Annexure ‘F’ to the petition within a prescribed time period upon making actual demarcation line alternatively pay the compensation to the petitioner as per market rate of the land of the locality made by the state for the purpose of registration of the properties, for retaining such land by them without sanction of law. 23. 23. Therefore, the requiring body of the State and/or it's agents, servants, assignees or representatives whosoever in the possession of the land is directed to release the land in excess as per Annexure 'F' to the petition to the petitioner in presence of the 1st or 2nd Land Acquisition Collector, whosoever is present in the office by making demarcation line in the form of a brick wall at the cost of the petitioner within a period of fortnight from the date of the order. In case any construction encroached into such land the same should be demolished being a consequential effect. 24. If the same is not feasible as stated by the requiring body either it or it’s agents, servants, assignees or representatives will pay compensation of such excess land to the petitioner within a period of further fortnight thereafter at the market rate of the land of the locality as per value of the registration of properties made by the State due to retaining the same without sanction of law. No further construction will be made till either of the courses are resolved. 25. Thus the writ petition is disposed of. No order is passed as to costs. By the said order interlocutory application or applications are also disposed of. Urgent xerox certified copy will be supplied within seven days from the date of putting requisition. Later on - Prayer for stay of operation of the order is made considered sad refused.