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2001 DIGILAW 375 (CAL)

Sankar Das v. State of West Bengal

2001-06-29

D.K.Seth

body2001
JUDGMENT D. K. Seth, J.: The petitioner has challenged the acquisition of the petitioners land under section 27 of the West Bengal Industrial Infrastructure Development Corporation Act, 1974, hereinafter referred to as the 1974 Act or the said Act. Mr. Malay Bose, learned counsel for the petitioner contended that the acquisition of the said land in exercise of section 27 of the Act is wholly without jurisdiction. Inasmuch as land can be acquired under section 27 only when the area is declared industrial estate as defined under section 2 sub-section (10) of the said Act. He contends that such land cannot be acquired by the said corporation without the area being declared industrial area within the meaning of section 2(8) of the said Act. According to him no notification has ever been issued by the State Government either under sub-section (10) or under subsection (8) of section 2 of the said Act. He further contended that such declaration under section 2(10) or under section 2(8) has to precede the acquisition and not follow. The second contention that was raised by him was that even if assuming but not admitting such a notification was issued, in the present case the land having been acquired for the purpose other than mentioned in section 2(10), such notification would be invalid. Therefore, the purpose for which the land has been acquired being something other than purpose mentioned in section 2(10), section 27 of the said Act could not have been resorted to. The third contention raised by him was that the land could not be acquired by reason of section 66 of the Town and Country (Planning and Development) Act, 1979 hereinafter referred to as the 1979 Act, inasmuch as the 1979 Act does not prescribe for acquisition of any land. The 1979 Act is only a regulatory Act it does not provide for acquisition of any land. His 4th contention is that the corporation cannot resort to provisions of 1979 Act for acquiring any land since the 1979 Act does not postulate acquisition of land by any other authority. The 1979 Act is only a regulatory Act it does not provide for acquisition of any land. His 4th contention is that the corporation cannot resort to provisions of 1979 Act for acquiring any land since the 1979 Act does not postulate acquisition of land by any other authority. It only postulate acquisition of land for the purpose of implementation of the Development Scheme under the 1979 Act by the authority constituted under the said 1979 Act for which such authority has to apply to the State Government and then the State Government would empower the such authority to enter into such land, for executing such work and take possession by a notification that might be issued by the State Government. In the present case, the land has not been acquired for any purpose for which land could be acquired by a Development Authority under section 66. His 5th contention is that no notice was ever served upon the petitioners. He further contends by means of a supplementary affidavit that the alleged representation made on behalf of the petitioners was wholly without instruction. The petitioners' names were included in the said notice at the behest of the owners of the land therefore, the contents of the said representation does not bind the petitioners. In the circumstances the petition should be allowed and the purported acquisition should be quashed. 2. Mr. Debabrata Roy Chowdhury, learned counsel appearing on behalf of the respondent Nos. 3 and 4 on the other hand contends that the land was acquired in exercise of section 27 of the 1974 Act. It is not necessary that for the purpose of acquisition the area is to be declared an industrial area within the meaning of section 2(8) of the said Act or an industrial estate within the meaning of section 2(10) of the said Act. Inasmuch as section 27 does not qualify the expression "land" used in the said section. On the other hand, it uses the expression "any land". Thus, "land" qualified by the expression" "any" includes all kinds of land. It does not necessitate that such land shall be a land within the meaning of sections 2(8) and 2(10). He then contends that the area in which the land falls is already included in the outline development plan for Haldia 1989-2001 published by the Haldia Development Authority constituted under the 1979 Act. It does not necessitate that such land shall be a land within the meaning of sections 2(8) and 2(10). He then contends that the area in which the land falls is already included in the outline development plan for Haldia 1989-2001 published by the Haldia Development Authority constituted under the 1979 Act. In the said Outline Development Plan the area has been declared as industrial zone. According to him when an area is already declared industrial zone in the Outline Development Plan, hereinafter referred to as ODP, it is no more necessary to declare the same area as industrial area or industrial estate under the 1974 Act. Referring to section 28 he contends that the petitioners are only entitled to compensation and cannot challenge the acquisition particularly having represented through their representation which is annexure-C to the writ petition which constitutes waiver and estoppel on the part of the petitioners. He then contends appeal lies under section 29, in case any person is aggrieved by the decision of the Collector in the matter of determination of compensation. Thus the petitioner cannot claim any other right. He then contends that the writ petition was moved in 1999 the supplementary affidavit is being affirmed and filed only after his reply is over after 3 and odd years. Therefore, the same is an after-thought and cannot be looked into particularly when the said representation is annexed with the writ petition without any pleading in the writ petition explaining the contents thereof and disassociating themselves from the said representation. Referring to various provisions of the 1979 Act he had submitted that once the ODP is published and has become final, no one can question the same. 3. He contends further that each of the petitioners had independent, separate and distinct interest and therefore the cause of action cannot be joined together and a joint writ petition cannot be maintained. He then contends that the petitioners alleges to be the tenants of the respective properties claimed by them without showing anything as to how they claim to be the tenants of the alleged lands. He further contended that a notification dated 20th October, 1995 was issued under section 1 sub-section (3) of the 1974 Act specifying the respective mouzas on which the provisions of the 1974 Act would be applicable. The said notification includes the area in which the petitioners lands are situated. He further contended that a notification dated 20th October, 1995 was issued under section 1 sub-section (3) of the 1974 Act specifying the respective mouzas on which the provisions of the 1974 Act would be applicable. The said notification includes the area in which the petitioners lands are situated. Therefore, section 27 can be resorted to in respect of such area. According to him the land was acquired for the purpose of establishment of the infrastructure which includes even residential complex or township including commercial complex which would include hotels, nursing homes, other facilities including parking facilities, shops and related establishments. According to him these are all related to the development of infrastructures and as such it is well within the scope of the 1974 Act. 4. In reply, Mr. Bose has contended that the respondents have sought to rely upon certain documents which are annexed with the written notes and submission and are not part of affidavits. Therefore, no reliance can be placed on the said documents so long the originals are not produced. The documents produced being xerox copies cannot be looked into. 5. Mr. Bose has also reiterated his submissions made earlier. 6. I have heard the respective learned counsel for the parties at length. 7. In order to appreciate the submission made by the respective counsel it would be necessary to refer to the brief facts leading to the present disputes. The petitioners claim that they were tenants in respect of the land sought to be acquired and had been carrying on business therein. Notices under section 27(1) of the 1974 Act was issued on 13th April, 1999 to the owners of the said land after publication of a notice by the Haldia Development Authority on 17th March, 1999 inviting tender for construction of a commercial complex. The petitioners alleges that no notice however was ever issued to the petitioners though they are persons interested. It further appears that subsequent thereto notice was issued on 7th June, 1999 purporting to vest the lands in the State. The petitioners through their advocate had addressed a letter on 17th June, 1999 claiming that the land was acquired for a greater public interest and therefore the petitioners should be compensated adequately. Apart from compensation alternative suitable accommodation should be allotted to them. The petitioners through their advocate had addressed a letter on 17th June, 1999 claiming that the land was acquired for a greater public interest and therefore the petitioners should be compensated adequately. Apart from compensation alternative suitable accommodation should be allotted to them. In respect of the said area ODP was already prepared and was duly published and is in operation. A copy of such ODP has been filed by the counsel for the respondent which is being taken on record. In the said ODP the area has been shown as commercial zone. This ODP is for the period 1989-2001. Notices under section 27(1) was duly issued by the State Government on 13th April, 1999 upon the recorded owners. However, nothing has been produced to show that the notices were issued to these petitioners. In the writ petition some of the notices are annexed. These notices were addressed to some persons other than the petitioners. The relevant copies of the newspaper publication are also annexed. The petitioners had claimed alternative accommodation and compensation etc. in annexure-C. Compensation was also claimed by the owners through an application filed before the Collector on 4th May, 1999 which is part of annexure-A to CAN No. 2338 of 2000. In the said application details of the tenancy of the petitioners were mentioned. On 13th April, 1999 a notification under section 38(1) of the Town and Country Planning Act was issued in which the area was declared as commercial zone. The development plan was prepared and published by the State Government in terms of section 32 of the 1979 Act. That the said plan has become final and is not questioned by Mr. Bose. A notification under section 1(3) of the 1974 Act was issued on 20th October, 1995. 8. In this background, the respective contention of the learned counsel for the respective parties are to be examined. With the object of land development of rural and urban areas in the public interest in West Bengal, the 1979 Act was enacted. Under section 13, the Planning authority is conferred with the power to prepare and enforce Outline Development Plan, detailed development plan, prescribe use of land within its area, to prepare and execute development schemes, to co-ordinate development activities of all departments and agencies or local authorities operating within the planning area, to carry out all works contemplated in the development plan. Section 28 empowers preparation of land use map. Section 31 empowers to prepare Outline Development Plan. Section 32 empowers preparation of detailed development plan. The State Government under section 34 has power to direct preparation of development plan and also to approve and publish notice for preparation of such plan and the approval thereof under section 37. Under section 38 such development plan comes into operation as soon it is approved. Section 43 confers power to acquire land under the Land Acquisition Act, 1894 and any law required for the purpose shall be deemed to be public purpose as contemplated in the Land Acquisition Act. Section 44 restricts use or development of land except in conformity with the development plan. 9. Admittedly, the area is included within the jurisdiction of the Haldia Development Authority, a Development Authority constituted under the 1979 Act. ODP for Haldia has since been prepared and published and approved by the Government. The present area falls within the jurisdiction of Police Station, Durgachak, Basudevpur, J. L. No. 126 of Police Station, Durgachak has been shown partly to fall within Durgachak Township and partly in Commercial Zonal Centre (retail) as is apparent from annexure (ii) of the ODP at page 45. J. L. No.126, Basudevpur falls within the Haldia Planning Area as shown in the ODP at serial No. 200 at page 44. The 1979 Act through section 43 empowers acquisition of land through Land Acquisition Act. Section 66 also permits taking possession of lands by the Development Authority. Therefore, Development Authority also can acquire land. But, in the present case, the land has not been acquired by the Development Authority. Neither section 43 nor section 66 of the 1979 Act, has been sought to be resorted to. Therefore, it is not necessary to examine this question in the present proceeding. But the only thing that might be remembered is that in the development plan the area has been shown to fall within the development scheme and shown to have land use as mentioned in annexure (ii) at page 45 of the ODP. 10. Now it is to be considered as to whether after the ODP is prepared any further declaration would be necessary under the 1974 Act. 10. Now it is to be considered as to whether after the ODP is prepared any further declaration would be necessary under the 1974 Act. But this question would not be material if section 27(1) is interpreted to mean that the expression "any land" includes all kinds of lands and it is not necessary that a declaration under section 2(8) or 2(10) of the 1974 Act is to precede exercise of power under section 27(1) of the 1974 Act. Therefore, let us first examine the implication of section 27(1) having regard to sections 2(8) and 2(10) of the 1974 Act. 11. It is an admitted proposition that no notice under section 2(8) or under section 2(10) could be shown to have been issued by the learned counsel for the respondents. Therefore, this Court is compelled to proceed with the presumption that the area has not been declared industrial area or industrial estate within the meaning of the said two provisions. Mr. Bose has raised a contention that unless it is an industrial area or an industrial estate no land can be acquired under section 27 of the said Act either for the purpose of development of township or commercial area. Section 27(1) cannot be utilized for the purpose of carrying out the object of the 1979 Act when 1979 Act has its own procedure available in it. Admittedly, it appears that the land was acquired for the purpose of construction of commercial complex. In terms of the development plan the area cannot be used for purposes other than commercial purpose or township. The particular portion with which we are now concerned is shown to be the commercial zone. It is also proposed that a commercial complex is being constructed. However, a township may also include commercial area. The 1979 Act regulates the use of the land on the basis of the plan prepared by it. The authority itself may develop the area. At the same time it may also coordinate between different authorities including one with which we are now concerned for the development according to the plan. In the present case, the corporation has sought to acquire the law in exercise of section 27 through the State Government as contemplated in law. 12. The contention that under section 27 land cannot be acquired for the purpose of construction or development of commercial area as advanced by Mr. In the present case, the corporation has sought to acquire the law in exercise of section 27 through the State Government as contemplated in law. 12. The contention that under section 27 land cannot be acquired for the purpose of construction or development of commercial area as advanced by Mr. Bose seems to be of no substance. Inasmuch as the long title of W. B. Act 25 of 1974 is "an act to make special provisions for securing development of trade, commerce and industries in an well planned basis in the State of West Bengal, and for the purpose of establishment of industrial infrastructure development corporation, and for matters connected therewith or incidental thereto". The preamble proceeds to specify that" it is expedient to make special provisions for securing development of trade, commerce and industries on well planned manner in the State of West Bengal and for that purpose of establishing industrial infrastructure development corporation and for matters connected therewith or incidental thereto". Thus, the preamble and the long title includes trade and commerce which is to be developed on well planned basis. It further includes of matters connected therewith or incidental thereto. The development of industries requires development of trade and commerce. For the purpose of development of an industry it requires an infrastructure which includes supply of labour, power, raw materials, expertise machineries and transport. Thus, for the labour and experts it may require development of township and commercial complex. A township includes a commercial complex without which the township cannot be said to be a well planned township. The products of the industry may also be traded for which development of commerce is necessary. Then again, for the purpose of purchasing of raw materials of machineries trade is also necessary. As soon industry is developed people from different places come and visit the place in connection with industries for whom various amenities are to be catered to including accommodation in hotels and other various facilities. It may also require medical facilities thus the construction of commercial complex with hotel accommodation or nursing home cannot be said to be a purpose outside the 1974 Act. Thus, construction of commercial complex is definitely a purpose within the scope and ambit of the 1974 Act. The Act has been enacted with the purpose and object for development of trade, commerce and industries. Thus, construction of commercial complex is definitely a purpose within the scope and ambit of the 1974 Act. The Act has been enacted with the purpose and object for development of trade, commerce and industries. Commercial complex is definitely a step towards the development of trade, commerce and industries. Therefore, for the purpose for which the land has been acquired, section 27 can be resorted to. 13. Section 2(8) requires declaration of an industrial area by the State Government by a notification in consultation with the Development Authority. Similarly, section 2(10) requires declaration of industrial estate by the State Government through a notification in consultation with the authorities. It is contended by Mr. Bose, that unless the area is declared industrial area or industrial estate within the meaning of sections 2(8) and 2(10). Section 27 cannot be resorted to and that such declaration has to proceed exercise of power under section 27 and not follow such exercise. As observed earlier in the present case it is to be presumed that no such declaration as yet been issued. Therefore, the land which is being sought to be acquired under section 27 is an ordinary land and as such cannot be acquired under section 27. 14. In order to examine this contention we may refer to section 27(1) of the said Act which provides that:" If at any time, in the opinion of the State Government, any land is required by it for the purpose and development by the corporation or in any other purpose in furtherance of the objects of this Act, the State Government shall serve notice upon the owner of the land and any other person (who in the opinion of the State Government, may be) interested therein to show cause, within such time as may be specified in the notice, why the land shall not be acquired: Provided that nothing in this sub-section shall apply to land belonging to the Union of India". 15. For our present purpose we may confine to the expression "any land". The expression 'any land' has not been qualified to mean a land within the industrial area or a land which has been declared industrial estate. On the other hand, the qualification "any" before the word "land" makes it inclusive. It includes all kinds of land including lanus declared industrial area or industrial estate. The expression 'any land' has not been qualified to mean a land within the industrial area or a land which has been declared industrial estate. On the other hand, the qualification "any" before the word "land" makes it inclusive. It includes all kinds of land including lanus declared industrial area or industrial estate. When the word 'land' has not been qualified and on the other hand it is qualified to include land of any description or kind then it would be too strenuous to mean that such land means land within the meaning of sections 2(8) and 2(10). On the other hand section 2(11) had defined 'land' to mean a land as defined in section 3 of the Land Acquisition Act. Land Acquisition Act in section 3 defines 'land' to include benefits to arise out of land, and things attached to earth or permanently fastened to anything attached to the earth. The land defined in section 3 of the Land Acquisition Act is an inclusive definition, which includes all kinds of land as it is understood from the ordinary meaning of the word land. According to Shorter Oxford Dictionary 3rd Edn. 1987, the word "land" means the solid portion of the earth's surface as opposite to sea water. Ground or soil having a particular use or particular properties. While interpreting statute a particular word as used in its ordinary grammatical meaning is to be accepted unless it is used in a technical sense. In the present case, the land has not been used in its technical sense but the definition being inclusive it includes all kinds of land without any classification. 16. Thus, by no stretch of imagination, in order of exercise section 27, it can be contemplated that such land must be a land within the meaning of section 2(8) or 2(10). Therefore, section 27 can be resorted to acquire 'any land' for the purpose and object of the 1974 Act. If no such notification is necessary in that event it is immaterial whether such notification would precede or follow, for the purpose of section 27. After the land is acquired and is vested in the State then it is open to the State Government to decide to issue declaration as it might deem fit under section 2(8) or 2(10), as the case may be. After the land is acquired and is vested in the State then it is open to the State Government to decide to issue declaration as it might deem fit under section 2(8) or 2(10), as the case may be. When the Act postulates development of trade and commerce for the purpose of development of commercial complex it may not require a prior declaration either under subsection (8) or under sub-section (10) of section 2, as the case may be. 17. In the circumstances I am unable to persuade myself to agree with the contention of Mr. Bose with regard to the inapplicability of section 27 as contended by him by reason of non-declaration of industrial area or industrial estate under section 2(8) or 2(10) respectively. In the circumstances, it is not necessary to deal with the other contentions ancillary to this contention as raised by Mr. Bose. 18. Now we may come to the question of non-service of notice on the petitioners and examine as to whether it will invalidate the acquisition. Notices were issued to the owners. This is not disputed. There is nothing to show that notices were issued to the petitioners. At the same time there is nothing to show that the petitioners were tenants in the respective lands. Whether these persons are interested or not can be thrashed out before the Collector through appropriate proceedings. Therefore, they can claim compensation on the basis of their interest on the land. The petitioners have annexed the notice dated 13th April, 1999 served upon the owner as well as a letter dated 17th June, 1999 addressed by them through their lawyer to the Collector and an application before the Collector on 7th May, by the owners. In the letter addressed by the advocate the petitioners had never mentioned that they did not receive any notice. On the other hand; they had prayed for compensation. Thus, even if they have not been served but by implication and conduct they had waived service of such notice and are estopped from taking any ground of non-service of notice. However, in the supplementary affidavit the advocates letter was denied by the petitioners on the ground that they had never instructed the advocate to write the letter on their behalf. However, in the supplementary affidavit the advocates letter was denied by the petitioners on the ground that they had never instructed the advocate to write the letter on their behalf. But, now the petitioners are precluded from challenging the acquisition on account of non-service of notice by reason of the application of the principle of estoppels waiver and acquiescence. Inasmuch as even after the knowledge of the acquisition they had acquired to the acquisition by claiming compensation through the letter addressed by their lawyer. Therefore, it is no more open to them to make a capital out of it for succeeding in this writ petition. Thus the non-service, if their be any, would not be fatal and will not invalidate the acquisition. The only remedy available to them is to claim compensation under section 28 before the Collector and if aggrieved to prefer an appeal against such determination under section 29. 19. Now let us examine as to whether, if non-service of notice is presumed, the acquisition would be invalid. Section 27 postulates service of notice upon the owner and person interested therein. 'Person interested' has been defined in section 2(11) as defined in section 3 of the Land Acquisition Act. The Land Acquisition Act in section 3 defines 'person interested' to include all persons claiming an interest in compensation to be made on account of acquisition of land and a person shall be deem to be interested in land if he is interested in an easement affecting the land. The petitioners are claiming to be tenants. It is something more than easement. Therefore, they are persons interested. But the expression "person interested" though defined in section 2(11) but is qualified for the purpose of issuing notice in section 27(1). 20. A particular expression may have different connotations at different places in the same statute having regard to the context in which it is used particularly when such context is qualified or explained. The expression "person interested" for the purpose of receipt of compensation may have a connotation different from the expression "person interested" for the purpose of giving notice. But this has to be ascertained from the scheme of the Act itself. 21. While defining "person interested" in section 2(11) this Act refers to section 3 of the Land Acquisition Act which relates to interest in the compensation. But this has to be ascertained from the scheme of the Act itself. 21. While defining "person interested" in section 2(11) this Act refers to section 3 of the Land Acquisition Act which relates to interest in the compensation. While claiming compensation there is no doubt that the petitioners may be person interested provided they are able to establish that they were tenants in the land so acquired before the Collector. But when it comes to service of notice on persons interested under sub-section (1) of section 27 such notices are to be served upon persons who, in the opinion of the State Government, may be interested. Therefore, the expression "person interested" in section 27(1) is qualified to be persons who are interested in the land in the opinion of the State Government. Thus, the State Government is not supposed to serve notice upon persons unless in the opinion of the State Government they are persons interested. Therefore, the expression "person interested" in section 27(1) is qualified to be persons who are interested in the land in the opinion of the State Government. Thus, the State Government is not supposed to serve notice upon persons unless in the opinion of the State Government they are persons interested. The State Government may form its opinion on the basis of the records before it. The act does not postulate that before issuing notice the State Government is required to carry out an enquiry or investigation for finding out as to persons who are interested. If on the records available before the State Government are considered by the State Government it would be sufficient if notices are issued to persons whose names are appearing on the record. The opinion of the State. Government is to be formed on the basis of the available record. For the purpose of formulating such opinion it does not require an enquiry to be made. An enquiry is to be made by the Collector for the purpose of determining the payment of compensation. In such enquiry the Collector is supposed to determine the interest of the persons. Such a stage cannot precede the exercise of power under section 27(1). For the purpose of formulating such opinion it does not require an enquiry to be made. An enquiry is to be made by the Collector for the purpose of determining the payment of compensation. In such enquiry the Collector is supposed to determine the interest of the persons. Such a stage cannot precede the exercise of power under section 27(1). Therefore, if there is no material before the Government to form an opinion that the petitioners were persons interested in that event non-service of notice upon them in no way invalidate the notice under section 27(1) or the acquisition made pursuant thereto. 22. Admittedly, the notice under sub-section (3) of section 27 has since been published on 7th June, 1999 as is apparent from annexure-B to this petition. Thus by reason of sub-section (4) as soon the notice was published in the official gazette, the land stood vested in the State Government free from all encumbrances. Once the land is vested it cannot be divested in view of section 48 read with section 36 of the Land Acquisition Act. Therefore, the alleged irregularity with regard to service of notice cannot affect the acquisition. The non-service of notice is not an illegality or invalidity it is merely an irregularity which does not affect the basis of the acquisition. 23. The acquisition under section 27 is a little different from the acquisition within the scope and ambit of section 4 of the Land Acquisition Act. Section 27(1) stands on a different footing. The decision to acquire is dependent on the formation of the opinion by the State Government at any time. Such opinion is to be formed with regard to the requirement of the corporation for the purpose of development or for any other purpose in furtherance of the objects of the 1974 Act. The area has already been declared commercial zone in the ODP. Thus the same is one of the material available before the Government for formation of an opinion for development of commercial complex in the area. Such development of commercial complex as observed earlier is in furtherance of the object of this Act. Thus, for the purpose of formation of opinion that this land is required for development the Government has to rely on the materials before it and there is nothing pleaded that the Government has not relied on such materials. Such development of commercial complex as observed earlier is in furtherance of the object of this Act. Thus, for the purpose of formation of opinion that this land is required for development the Government has to rely on the materials before it and there is nothing pleaded that the Government has not relied on such materials. So far as this Court is concerned it appears that there are materials on which it is possible for the State to form an opinion that this lands are required for the purpose of the 1974 Act. Therefore, once the opinion was formulated and notices was issued inviting objections and no objection was lodged and on the other hand the petitioners having claimed compensation no fruitful purpose would be served by giving the petitioners an opportunity of hearing in the facts and circumstances of the case even if post decisional hearing is accorded to the petitioners what sometimes Court permits. Sub-section (5) requires delivery of possession by any person in possession. Therefore, the petitioners are bowed to deunver possession as soon the notification under sub-section (3) is issued. The petitioners were aware of the notification dated 7th June, 1999. Thus, they had waived their right to pleade their objection against the acquisition. Therefore, they cannot now be permitted to raise such objection to the acquisition after the notice under section 4 is published. Particularly, in view the particulars annexed with annexure-C issued by their counsel on 17th June, 1999. 24. It appears that the petitioner has sought to deny the notice contained in annexure-C by means of a supplementary affidavit. The notice contained in annexure-C is pleaded to be true to the knowledge of the deponent who had asserted that he was duly authorized to affirm the petition on behalf of the other petitioners. No explanation has been given with regard to the contents of annexure-C. The only claim they had sought for was under section 34(2)(b). Thus, once having pleaded the same, the petitioners cannot be allowed to turn round and deny the contents. The supplementary affidavit has since been affirmed by the same Sankar Das who had affirmed the affidavit in support of the writ petition. In fact, he has sought to disown the statement already made on oath in the writ petition. Thus, once having pleaded the same, the petitioners cannot be allowed to turn round and deny the contents. The supplementary affidavit has since been affirmed by the same Sankar Das who had affirmed the affidavit in support of the writ petition. In fact, he has sought to disown the statement already made on oath in the writ petition. In clause (b) of paragraph 2 of the supplementary affidavit it is stated that "The petitioners are not aware as regard the contents of the letters submitted by the learned advocate namely Sri Dilip Kr. Pattanaik. The document is totally collusive and the land owner in collusion with the Land Acquisition Authority perhaps submitted such advocates letter for the purpose of getting compensation. The petitioners are totally ignorant about the letter. Therefore, the requiring authority cannot take such plea that already advocates letter was submitted before the Land Acquisition Authority in respect of taking compensation for such acquisition". 25. The above statement appears to be wholly incorrect in view of the fact that the petitioners have annexed a copy of the said letter "annexure-C to the writ petition. It may be noted that the petitioners have used present tense in the supplementary affidavit. Therefore, it means that they were not aware of the contents of annexure-C till they were advised to affirm the supplementary affidavits. But once it is pleaded in the pleadings on oath and the letter is annexed as an annexure the knowledge of the deponent about the contents thereof is to be presumed. The statement made in clause (b) of paragraph 2 of the supplementary affidavit is affirmed as true to knowledge. It is very difficult to expect that the petitioners were not aware of the contents till they were advised to file the supplementary affidavits. Therefore, it is very difficult to rely on the supplementary affidavit. Once, annexure-C was annexed the petitioners ought to have explained the same. 26. The writ petition has not been amended. The statement made in the writ petition stands on oath. It has not been deleted. Now in supplementary affidavit the statement is sought to be contradicted or denied. When the court is faced with two contradictory statement it is open to it to disbelieve both or to believe one. And it is at the discretion of the Court to believe either of the one. It has not been deleted. Now in supplementary affidavit the statement is sought to be contradicted or denied. When the court is faced with two contradictory statement it is open to it to disbelieve both or to believe one. And it is at the discretion of the Court to believe either of the one. Which of them is to be believed is dependent on the context and the situation. Here the situation that has been made out leads us to believe the one that was made first. Inasmuch as the subsequent explanation seeking to resile from the earlier does not appear to be a sound one and that too was made at the last stage after the argument on behalf of the respondent was over and the respondent did not have any opportunity to deny the same. 27. For the pleadings pleaded in paragraph 16 of the wit petition clearly indicates that the petitioners were aware of the contents of annexure-C. The petitioners have also annexed in annexure-D, the letter dated 19th July, 1999 addressed to the said learned advocate. The custody of this letter indicates that the petitioners were aware of the situation. It was the same Sankar Das who was described at the top of the names of the clients who had instructed the advocate. In the list claiming compensation the name of Sankar Das heads the list. Having regard to the materials produced by the petitioners with the pleadings in paragraphs 16, 17, 18, 19 and 20 of the writ petition it appears that the petitioners are well aware of the entire situation. Therefore, by means of the supplementary affidavit the same cannot be negatived. 28. Thus, on this point also I am unable to persuade myself to agree with the contention of Mr. Bose. 29. In Ramniklal Bhutta and Anr. vs. State of Maharashtra, 1997(1) SCC 134 , the Apex Court had held that while granting injunction in exercise of jurisdiction under Article 226 of the Constitution the Court must consider the comparative interest of the parties inasmuch as the person whose lands are being acquired can be adequately compensated in monetary terms. Admittedly, in the present case the comparative interest of development is greater than that of the petitioners. Then again the petitioners will not be deprived of the rights altogether in view of section 34(2)(b) of the said Act. Admittedly, in the present case the comparative interest of development is greater than that of the petitioners. Then again the petitioners will not be deprived of the rights altogether in view of section 34(2)(b) of the said Act. On the other hand, the development will enure to the benefit of the petitioners by opening a greater vista of developed infrastructure for carrying on trade and business in more congenial business atmosphere. Therefore, they cannot claim any vested right in the present case. In Mahadeo Savlaram Shelue and Ors. vs. The Municipal Corporation and Anr., 1995(3) SCC 33 , also had taken the same view requiring the Court to find out as to whether the damage could be compensated by money. In the present case, as it appears that the petitioners are not only entitled to be compensated by money but also be entitled to accommodation within the scope and ambit of section 34(2)(b). 30. In Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh, AIR 1964 SC 1300 , it was held that the weaver is an intentional relinquishment of a known right. In the present case, it appears that the petitioners had waived their right despite having notice and knowledge in claiming compensation through annexure-C to the contents of which they were aware they were, as well as the pleadings related to section 34(2)(b) of the said Act. 31. For all these reasons the writ petition fails and is accordingly dismissed. However, this order will not prevent the petitioners from pursuing their right under section 34(2)(b) of the 1974 Act and for compensation which the respondent shall determine and award in accordance with law as early as possible. The respondents are expected to take expeditious steps for payment of compensation and also under section 34(2)(b) of the said Act. 31. All interim order stands discharged. 32. No cost. 29.6.2001 Later After the judgement is delivered, a prayer was made by the learned Advocate for the petitioner for stay of operation of this order. Having regard to the findings made in the judgement, I do not find any reason to accede to such prayer. The prayer is refused. Xerox certified copy of the order be made available to the learned Advocates appearing for the parties. Writ petition dismissed. Prayer of stay refused.