Pratap Kumar Ray ( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) IN this writ application the writ petitioners have prayed the following reliefs:-" (A ). Issue a Writ of or in the nature of mandamus commanding the respondents to cancel and/or quash and/or recall the purported declaration being Annexure 'g' to this petition and further commanding the respondents, their respective men, agents and subordinates not to give any effect or further effect to the impugned declaration being annexure 'g to this petition and further restraining the respondents, their respective men, agents and subordinates from changing the nature and character of the suit property as well as transferring and/ or encumbering the said property in any way or manner. (B ). Issue a Writ of or in the nature of certiorari commanding the respondents to certify and transmit the records of your petitioners' case to the learned Registrar appellate side of this Hon'ble Court or cause them to be produced at the time of hearing so that the conscionable justice may be done by quashing the impugned declaration being Annexure 'g' to this petition. (C) Declare that the petitioners and/or their predecessors-in-interest are entitled to hold and enjoy the premises No. 59, Canal circular Road, Calcutta and the respondent Nos. 1, 2 and 3 cannot acquire the entire premises No. 59, Canal Circular Road, Calcutta when the peitioners and/or their predecessors-in-interest are not having any excess of vacant land within the meaning of the said act of 1976 and are further endtled to get back vacant possession of the said premises. (D) Issue a Rule Nisi in terms of above prayer. (E ). Make the Rule absolute after hearing the causes shown or if no cause is shown and/or to pass such other Writ Order or Direction as to Your Lordships may seem fit and proper. (F) Grant an interim order restraining the respondents and their respective men, agents and subordinates from giving any effect or further effect to the impugned declaration being Annexure 'g' to this petition and further restraining the respondents, their men agents and subordinates from changing the nature and character of the suit premises No. 59, Canal Circular Road, Calcutta as well as from selling and/or disposing and/or encumbering the said property till the hearing of the instant Rule. (G ). Grant costs. (G ). Grant costs. " ( 3 ) THE writ application as affirmed on 8th July, 1993, was moved on 12th July, 1993 when Tarun Chatterjee, J. (as His Lordship then was now hon'ble Judge of Supreme Court) passed the following order:-"this writ petition has been moved upon notice to the State and upon such notice Mrs. Chowdhury appears for the State. Writ petitioners are directed to serve copies of the private respondent Nos. 4+5 within two weeks from date and affirm an affidavit of service to that effect. Let affidavit-in-opposition to the writ petition be filed within four weeks from date, reply if any thereto three weeks thereafter. Let the matter appear as contested application eight weeks hence when the affidavit of service shall be filed by the writ petitioner. In the meantime there will be an interim order directing maintenance of status quo as of today in respect of the land involved in the writ petition until further orders. Respondents will be at liberty to apply for vacating the interim order upon notice to the writ petitioner. " ( 4 ) BY the order dated 19th June, 1995, D. K. Basu, J. (as His Lordship then was) further extended the time to file respective affidavits by the parties, which subsequently was extended time to time. By the order dated 25th september, 2003 passed by me, respondent No. 5 was directed to file affidavit as their presence was required in this proceeding. On 3rd January, 2003, in view of the submission of the learned Advocate for the petitioners that the name of respondent No. 5 was changed to Duncan Gleneagles hospital, leave granted to add the said Hospital as a party respondent formally though Respondent No. 5 represented the Hospital Authority. By the order dated 10th February, 2004 legal heirs of Tilak Sundari, the predecessor-in-interest of the petitioner were added as parties in this proceeding as per prayer of the petitioners. By the order dated 16th March 2004 they were accordingly added and matter was finally heard time to time. They are added as Respondent Nos. 11 to 14. ( 5 ) THIS writ application was contested by the State-respondents, the respondent No. 5 and the added Hospital Authority, who accrued right from Respondent No. 5 due to change of name of the organization by filing respective affidavit-in-opposition. They are added as Respondent Nos. 11 to 14. ( 5 ) THIS writ application was contested by the State-respondents, the respondent No. 5 and the added Hospital Authority, who accrued right from Respondent No. 5 due to change of name of the organization by filing respective affidavit-in-opposition. ( 6 ) THE admitted facts of the writ application as it appears from the writ application, affidavit-in-opposition of Respondent Nos. 5 and 9, respondent No. 3 Urban Land Authority and affidavits of added respondents and the respective replies, are to this effect:- (1) 59, Canal Circular Road, Calcutta within the District Calcutta, state of West Bengal is the concerned land relating to this writ application. Challenge in this writ application is the declaration issued by the authorities under Urban Land (Ceiling and Regulation) Act, 1976 hereinafter referred to for brevity as said Act, notifying in the calcutta Gazette that the said land would be deemed as acquired by the Government of West Bengal with effect from 5th May, 1990 in view of the earlier declaration holding that the said land was excess vacant land beyond the ceiling limit by the competent authority under the said Act of Respondent No. 4, M/s. Oriental Beverages Limited who filed return under Section 6 of the said Act showing the ownership of the said property. (2) That the aforesaid premises No. 59, Canal Circular Road under P. S. Beliaghata at present within district South 24-Parganas corresponding to Holding No. 40, Sub-Division No. 7, Division No. 3, touzi No. 2833, measuring little more or less 11 Cottah 10 chittack and 25 sq. ft. within Ward No. 29, Calcutta Municipal Corporation originally belonged to one Chandranath Dutta, who sold the property in equal share by different registered deeds to Tilak Sundari Devi, w/o Phanindra Nath Chattopadhyay and one Sidhu Bhusan mukherjee, S/o. Narayan Chandra Mukherjee. Both the two registered deeds were executed and registered on 6th April, 1949. (3) Tilak Sundari Devi and said Sidhu Bhusan Mukherjee applied for redemption to the Collector, 24-Parganas, who issued redemption Certificate dated 15th June, 1953. Both the two registered deeds were executed and registered on 6th April, 1949. (3) Tilak Sundari Devi and said Sidhu Bhusan Mukherjee applied for redemption to the Collector, 24-Parganas, who issued redemption Certificate dated 15th June, 1953. In the year 1960, a title Suit No. 79 of 1960 was filed by said Tilak Sundari Devi in the court of Sub-ordinate Judge at Alipore, District 24-Parganas now district South 24-Parganas, against M/s. Hindustan Housing and Land development Trust Limited and Sidhu Bhusan Mukherjee on the cause of action that the Calcutta Municipal Corporation were sending tax bills to the said trust on the plea that the said Trust purchased the property from Sidhu Bhusan Mukherjee though Sidhu Bhusan mukherjee was a "benamdar" of Tilak Sundari Devi. The suit was originally framed praying declaration of right, title and possession of tilak Suhdari Devi and with prayer of recovery of possession by eviction of Defendant No. 1, the said Trust. By the judgment and decree dated 12th March, 1964 passed by 8th Court of Sub-Ordinate judge at Alipore, the said suit was decreed on contest with cost against Defendant No. 1, the said Trust and the plaintiff Tilak Sundari devi's title in respect of suit land was declared by holding that Sidhu bhusan Mukherjee was the "benamdar" of the plaintiff. The plaintiff tilak Sundari Devi got decree to recover khas possession of the same by evicting defendants therefrom. (4) Defendant No. 1, the said Hindustan Housing and Land development Trust preferred an appeal being title appeal No. 437 of 1964 challenging the judgment and decree passed by Sub-Ordinate judge, 8th Court at Alipore in the said title suit No. 79 of 1960 and after contested hearing the appeal was dismissed by affirming the judgment and decree passed by the learned Trial Court. (5) The said Defendant No. 1, Hindustan Housing and Land development Trust Limited thereafter preferred Second Appeal in the High Court at Calcutta registered as S. A. No. 384 of 1967 assailing the judgment and decree of Trial Court as well as the First Appellate court. During pendency of the Second Appeal in the High Court at calcutta, the appellant M/s. Hindustan Housing and Land development Trust Limited, transferred the property by registered deed of sale in favour of M/s. Oriental Beverage Limited, who was added as appellant No. 2 in the Second Appeal subsequently. During pendency of the Second Appeal in the High Court at calcutta, the appellant M/s. Hindustan Housing and Land development Trust Limited, transferred the property by registered deed of sale in favour of M/s. Oriental Beverage Limited, who was added as appellant No. 2 in the Second Appeal subsequently. The appeal was finally heard by the Division Bench of the Calcutta High court (Coram : A. M. Bhattacharya and S. P. Das, JJ.) and by the judgment dated 25th April, 1986, appeal was dismissed by confirming the judgment and decree of the Trial Court as well as of the First appellate Court. The Hon'ble High Court at Calcutta while dismissing the Second Appeal held to this effect:"we are, accordingly unable to interfere with the concurrent findings of the Courts below, based on various documents viz. , entries in the Assessment registers (Exhibits 5 series), Corporation Tax bills and receipts (Exhibits 8 series), rent receipts (Exhibits 10 (a) and 10 ). Redemption certificate dated 15. 6. 1953 in favour of the Respondent no. 1 and Sidhu Bhusan Mukherjee (Exhibit 3), khas Mahal Rent roll Register (Exhibit 9) and Corporation demand notices, (Exhibits-4 series) to the effect that the plaintiff has title to the disputed property and had possession of the property from about 1926-27 to about 1958, when the Plaintiff-Respondent No. 1 was dispossessed by the appellant. It is not disputed that the suit property is a khas Mahal land. This is the case not only of the plaintiff but also of D. Ws. 1 and 4, referred to by the first appellate Court. The rules contained in the west Bengal Government Estate Manual are executive instructions for administration of the Government's own property and are not statutory rules with the effect that breaches of such instructions are not justiciable (1975 (1) CLJ 118. In the present case, we are not, however, concerned with any breach of the rules in the West Bengal government Estate Manual. Needless to say, the word "estate", includes khas Mahal under Section 3 (4) of the Bengal Tenancy Act, 1885. The definition of the word 'landlord' in Section 3 (6) of the Bengal tenancy Act, shows that landlord includes the Government. The first appellate Court has discussed the provisions in the Estate Manual about the lease of khan Mahal lands by the Government. The definition of the word 'landlord' in Section 3 (6) of the Bengal tenancy Act, shows that landlord includes the Government. The first appellate Court has discussed the provisions in the Estate Manual about the lease of khan Mahal lands by the Government. Exhibit 9 is the certified copy of the khas Mahal Rent Roll Register No. 1 in respect of the suit property. The Dhaknilas Exhibits 10 and 10 (a), were granted by the Treasury Officer, though D. Ws. 1 and 4 admitted that the suit property was khas Mahal land, the appellant was unable to produce a scrap of papers to show any vesting of any interest of the predecessors-in-interest of the appellant in respect of the suit property as a khas Mahal land. In this state of facts, the documentary evidences, referred to by Mr. Mitra cannot persuade us to hold, on disagreeing with the finding of the first appellate Court, that the predecessor-in-interest of the Respondent No. 1 had no title to the suit property. As already stated, the concurrent findings of the Courts below, are that the Respondent No. 1 and her predecessors-in-interest (Respondent No. 2 being only a benamdar in respect of a portion of the property purchased in the name of the Respondent No. 2 as per the evidences) were in possession of the suit property from about 1926-27 to about 1958, when they were dispossessed from the property by the appellant. As the suit was instituted in 1960 and the respondent No. 1 ceased to possess the suit property from about 1958, the provisions of Section 110 of the Evidence Act, cannot ensure to the benefit of the Respondent No. 1. Even then, when the respondent No. 1 and her predecessors-in-interest had title to and possession of the suit property upto about 1958, the appellant cannot succeed unless the appellant is able to show a better title and not mere possession since about 1958. The appellant has failed to prove any better title. The first appellate Court has disagreed with the trial Court about the acquisition of title by the plaintiff to the suit property by way of adverse possession. Mr. Banerjee learned Advocate for the respondent No. 1 has acquired title to the suit property by way of adverse possession. The appellant has failed to prove any better title. The first appellate Court has disagreed with the trial Court about the acquisition of title by the plaintiff to the suit property by way of adverse possession. Mr. Banerjee learned Advocate for the respondent No. 1 has acquired title to the suit property by way of adverse possession. As such, the cases reported in 27 Indian Appeals 136, 62 Indian Appeals 40 and 51 Indian Appeals 257, referred to by mr. Mitra, need not be discussed. A perusal of the award, Exhibit 1 shows a recital that the arbitratortarun Kumar Ghosh, was empowered to extend the time to make award by endorsement on the back of the original agreement and that, in pursuance of such authority, the arbitrator had extended the time given in the agreement to make the award till 31. 3. 1945. The award was actually made by the arbitrator on 15. 12. 44, though the time was extended by him till 31. 3. 1945. It is to be stated in this connection that the provisions in Paragraph 3 of Schedule I of the arbitration Act, 1940, under which the Arbitrators are to make their awards within four month after entering on the reference or after having been called upon to act by notice by any party to the arbitration agreement or within such extended time as the Court may allow, do not apply in the case in view of the endorsement on the back of the agreement by the persons making the reference, as per the recitals in the award. As the Arbitrator was empowered to extend the time within the consent of the parties making the reference, the award cannot be void under Section 28 (2) of the Arbitration Act, as argued by Mr. Mitra. Mr. Mitra has also referred us to some discrepancies in the plaint and the recitals in the award as to whether the suit property was acquitted during the life time of Narayan Chandra Dutta, predecessor-in-interest of the Respondent No. 1 or after his death. It is not necessary for us to discuss these discrepancies in the second appeal in view of the concurrent findings of the Courts below about the title of the plaintiff and the possession of the suit property by the plaintiff and her predecessors-in-interest from about 1926-27 to about 1958. It is not necessary for us to discuss these discrepancies in the second appeal in view of the concurrent findings of the Courts below about the title of the plaintiff and the possession of the suit property by the plaintiff and her predecessors-in-interest from about 1926-27 to about 1958. " (6) During pendency of the aforesaid Second Appeal in the high Court at Calcutta, Tilak Sundari Devi died intastate leaving behind Respondent Nos. 6, 7 and 8 who were substituted in her place and stead in the Second Appeal as party respondents. During pendency of this appeal, the legal heirs of Tilak Sundari Devi by two registered deeds of sale executed and registered on 27th November, 1985, transferred their right, title and interest in the premises No. 59, canal Circular Road, Calcutta in favour of the present writ petitioners who upon being substituted in the pending Second Appeal aforesaid stepped into the shoes of substituted respondent decree holder. (7) The judgment debtor/appellant of the Second Appeal namely, the appellant No. 2, who is Respondent No. 4 herein in this writ application, who was substituted due to purchase of the land from the judgment debtor/appellant No. 1, filed a return under Section 6 (1) of the said Act, on 15th September, 1976, showing the said premises 59, Canal Circular Road, Calcutta along with other properties of different premises of said area as vacant lands. On such basis, draft statement under Section 8 (1) of the said Act was prepared showing the land of the suit premises, which is also the subject-matter of this writ, as excess vacant land and this draft statement was served upon the said judgment debtor/appellant No. 2 of the Second Appeal by memo dated 8th January, 1987, inviting objection from the competent Authority. The returnee judgment debtor/appellant No. 2 though in the meantime suffered judgment in the said Second Appeal on 25th April, 1986, but did not disclose such in his objection as filed and participated in the proceeding claiming right, title, interest and possession over the said premises 59, Canal Circular Road, Calcuta before the Competent Authority. The returnee judgment debtor/appellant No. 2 though in the meantime suffered judgment in the said Second Appeal on 25th April, 1986, but did not disclose such in his objection as filed and participated in the proceeding claiming right, title, interest and possession over the said premises 59, Canal Circular Road, Calcuta before the Competent Authority. On hearing him and on the basis of his submission expressing willingness to surrender the property, the aforesaid premises 59, Canal Circular Road along with other properties were finally determind as excess vacant land under Section 9 of the said'act, though on 1st December, 1989, the Competent authority got the knowledge of judgment of Second Appeal from the application filed by the writ petitioner, Somenath Chakraborty, the decree holder, declaring title of Tilak Sundari Devi over the property 59, Canal Circular Road, Calcutta, under Section 26 (1) of the said act, who prayed necessary permission to sale the said property to one Smt. Santi Debi, which was duly acknowldeged by Competent authority on 16th January, 1990 (Para 7 of the Affidavit-in-Opposition of the Competent Authority ). ( 7 ) DESPITE such, a notification under Section 10 (1) of the said Act dated 1st February, 1990 was published in the Calcutta Gazettee, Extra ordinary Issue dated 15th February, 1990, though already in respect of the said property of 59, Canal Circular Road, Calcutta, Calcutta High Court in the Second Appeal confirmed the title of Tilak Sundari Devi and as a consequence thereof, title of the present writ petitioners, who purchased the property and was substituted in place and stead of legal heirs of Tilak sundari Devi due to purchase of the property while Second Appeal was pending. After expiry of the statutory time limit, declaration under Section 10 (3) of the said Act was published in the Calcutta Gazette, Extra Ordinary issue on 11th May, 1990 declaring the land comprising in the premises 59, canal Circular Road, Calcutta as "deemed to have been acquired" by the state Government with effect from 5th May, 1990. (8) Despite the knowledge by the Competent Authority about the ownership of the premises by the writ petitioner Somenath chakraborty with reference to his application under Section 26 (1) of the said Act, however, possession of the said land was taken by the competent Authority on 21st June, 1991 annexed at page 25 of the affidavit-in-Opposition filed by Appollo Gleneagles Hospital Limited. (9) Letter of allotment of said land of 59, Canal Circular Road, calcutta was issued to M/s. Janapriya Hospital Corporation Limited on 4th April, 1991 on the condition of payments of salami amount and thereafter execution of lease deed on terms and condition as stipulated. Thereafter by the letter dated 29th April, 1991 issued by lands and Land Reforms Department, M/s. Janapriya Hospital corporation Limited was informed that the lease deed would be executed after payments of annual rent and would be effective from the date of taking over of the possession of the land on deposit of the salami amount. (10) The foundation stone for construction of the Hospital was laid on 10th February, 1993 as it appears from the statement paragraph 3g in the affridavit of Appollo Gleneagles Hospital Limited. (11) On 12th July, 1993 writ application was moved wnen interim order directing maintenance of status quo, as on that day in respect of the land involved in the writ application until further order was passed by Tarun Chatterjee, J. (as His Lordship then was) and such interim order is still continuing. (12) None of the respondents, who are contesting the matter, had disclosed in their affidavits about date of sanction of building plan of the said Hospital covering the area involved in this writ applicfation under Premises No. 59 Canal Circular Road, Calcutta by the Calcutta Municipal Corporation, save and except a paragraph in the opposition that sometime in February, 1993, foundation stone was laid by the Hon'ble Chief Minister of West Bengal. In view of the status quo order passed by this Court on 12th July, 1993, no construction lawfully could have been erected over the land. ( 8 ) ON 10th June, 1999, Competent Authority got a communication from the writ petitioner about the Court proceedings, title over the property of Tilak Sundari Devi as was confirmed in the Second Appeal filed by the appellant M/s. Hindustan Housing and Land Development Trust Limited as appellant No. 1 and M/s. Orient Beverage Limited as appellant No. 2 and about the fact that on 16th June, 1990 ah eady the Competent Authority got the knowledge about title and ownership of the property of the writ petitioners. It was further contended in the said letter that area 11 and 1/2 cottah more or less of premises No. 59 Canal Circular Road, Calcutta should be declared as not vested area as the returnee M/s. Orient Beverage Limited had no title over the property and he filed the ruturn when he was admittedly the judgment debtor of pending Second Appeal wherein he himself joined due to purchase of the property during pendency of the Second Appeal. ( 9 ) ON the basis of the aforesaid admitted facts, different parties had submitted their written notes of argument, namely the writ petitioners, the state-respondents and the Appollo Gleneagles Hospital Limited, which has been renamed from the earlier name Janapriya Hospital Corporation Limited, party Respondent No. 5 in the writ application and subsequently added in the writ application in the name of Appollo Gleneagles Hospital Limited. On the basis of the submissions made in the writ application, in respective affidavit-in-opposition of the parties namely State-respondent and the hospital Aurhority and affidavit-in-reply as well as affidavit of added respondents, legal heirs of the Tilak Sundari Devi, the points emerge to this effect:- (1) Whether on the basis of the return filed by M/s. Orient beverage Limited a judgment debtor and a party in the pending second Appeal in the High Court at Calcutta, wherein he got himself substituted as appellant No. 2 on purchasing the property from the judgment debtor/appellant No. 1 Hindustan Housing and Land development Trust Limited, got any legal right to submit the return as owner of the concerned land and the Competent Authority whether had any right to act with reference to the present land in question 59, canal Circular Road, Calcutta on the basis of the return filed by the said Company and to proceed with the said proceeding under the said Act. (2) That when title of Tilak Sundari Devi has been confirmed over the property in question even up the Second Appeal in the High court at Calcutta, whether Competent Authority had the jurisdiction to declare that the land would be acquired issuing a notice under section 10 (1) of the said Act, when before publication of such notice, already the Competent Authority got a notice under Section 26 (1) of the said Act from the writ petitioners, who purchased the property during pendency of the Second Appeal from the legal heirs of Tilak sundari Devi and was substituted as a party respondent in the Second appeal which finally confirmed the title of Tilak Sundari Devi by holding that M/s. Orient Beverage Limited had no title. (3) Whether order of deemed vesting under Section 10 (3) of the said Act, which is under challenge in this writ was legally justified by holding the property 59, Canal Circular Road, Calcutta as under the ownership and title of M/s. Orient Beverage Limited, who had no title at all in view of the judgment of the competent Civil Court finally confirmed in the Second Appeal by Calcutta High Court. (4) During pendency of the order of status quo passed by Tarun chatterjee, J. (as His Lordship then was) in the pending writ application on 12th July 1993 when admittedly the land was remaining as a vacant land and no construction was built, even if any construction has been raised today by the Hospital Authority, whether petitioner would be entitled to get any relief as prayed for. ( 10 ) LEARNED Advocate for the petitioner has vehemently argued that concerned land was not at all vacant land in terms of said Act as it was being used for Horticulture purpose and accordingly no return was filed as tilak Sundari Devi had no liability to file the return Exactly on 10th January, 1990, when one of the writ petitioner served a notice under Section 26 (1)of the said Act disclosing his title over the property on the basis of judgment of Second Appeal, when admittedly the order of acquire the property as vested land was not at all notified State Government had no jurisdiction to declare vesting order. State Government now cannot take a plea of khas mahal land as taken, at present moment, when State Government has already on accepting the title of judgment debtor/appellant M/s. Orient beverage Limited considered his return and proceeded with a proceeding and thereafter due to vesting of the land paid compensation etc. to the said m/s. Orient Beverage Limited. It is further urged that in view of the order of status quo as passed by this Court, the party respondents and specifically hospital Authority had no right to construct any building and the Calcutta corporation also had no right to allow any building plan and as such Hospital authority cannot take a plea that upon payments of salami amount, they have accrued a right over concerned land where Hospital building now existing. It is contended further that the "order of vesting" and order "deemed to have been acquired" under Section 10 of the said Act both are illegal in view of the special facts of the case, namely, the declaration of title by the civil Court even up to the Second Appeal of the Calcutta High Court on specific finding and declaration that the Sidhu Bhusan Mukherjee from whom m/s. Hindustan Housing and Land Development Trust Limited purchased the property and subsequent sold it to the M/s. Orient Beverage Limited, was the "benamdar" of Tilak Sundari Devi. ( 11 ) LEARNED Advocate appearing for the State respondent has contended that since Tilak Sundari Devi and her legal heirs did not file any return in respect of the vacant land, Competent Authority was justified to accept the return filed by judgment debtor M/s. Orient Beverage Limited and order of vesting and acquisition of the property both were right and legal. It is further contended that subsequent grant of lease deed in respect of the property in question after vesting of the property to the Government in favour of respondent No. 5 now renamed as Appollo Gleneagles Hospital limited was justified and petitioners are not entitled to get any relief. It is further contended that subsequent grant of lease deed in respect of the property in question after vesting of the property to the Government in favour of respondent No. 5 now renamed as Appollo Gleneagles Hospital limited was justified and petitioners are not entitled to get any relief. ( 12 ) IT is submitted by the Janapriya Hospital Corporation Limited, which is at present known as Appollo Gleneagles Hospital Limited that as a third party interest was accrued due to the subsequent lease deed executed by the Government in favour of the Hospital Authority sometime in the year 1991 and foundation stone was laid in the year 1993 for construction of the hospital, the petitioners are not entitled to get any relief. It has been further asserted by referring a judgment of Calcutta High Court passed by the Division bench in Appeal No. 324 of 1993 (Coram : Bhagabati Prasad Banerjee and vidya Nand, JJ.) in the case Duncan Goenka Hospitals Ltd. v. Daisy Mantosh and Ors. , on identical facts that when right title and interest of the property in question since is disputed and required to be dealt with in the writ proceeding to grant relief to the petitioners, Writ Court would not exercise such power. Judgment of the Division Bench aforesaid was passed relying upon the judgments of Apex Court passed in the case M/s. Hindustan Steel Limited, rourkela v. Smt. Kalyani Banerjee and Ors. , reported in AIR 1973 SC 408 and sohan Lal v. Union of India, reported in AIR 1957 SC 529 . ( 13 ) HAVING regard to the respective submission of the parties, now the point to be decided. ( 14 ) BEFORE dealing with the question as framed earlier, the question of maintainability of the writ and adjudication of title over the property, a bar, as raised referring the said judgment of the Division Bench of Calcutta high Court on the reflection of the Apex Court judgment as relied upon, to be dealt with first. ( 15 ) FROM the judgment of the Division Bench Duncan Goenka Hospital ltd. (supra) relying upon the judgments of Apex Court M/s. Hindustan Steel ltd. ( 15 ) FROM the judgment of the Division Bench Duncan Goenka Hospital ltd. (supra) relying upon the judgments of Apex Court M/s. Hindustan Steel ltd. (supra) and Sohan Lai (supra), it reveals that the title of the writ petitioners therein was disputed and the writ petitioner could not prove the title positively, save and except reference of some documents and papers namely, Corporation Records, Mutation etc. In the said two judgments of the Apex Court also the issue was grant of Government land, one about the mining lease in the case Sohan Lai (supra), and another allotment of the government land for rehabiliation, which was the subject-matter of case m/s. Hindustan Steel Ltd. (supra ). In both the cases, on careful reading, it appears that the Apex Court in view of lack of any positive findings of title over the property did not interfere in the writ application. However, in the instant case, the position is completely different. It appears from the records that in a title suit, the predecessor-in-interest of M/s. Oriental Beverage limited suffered a judgment and decree dated 12th March, 1964 of T. S. No. 79 of 1960 whereby and whereunder title of Tilak Sundari Devi was declared by the competent Civil Court holding that Sidhu Bhusan Mukherjee was a "benamdar" of Tilak Sundari Devi. Even in the First Appeal the appellant M/s. Hindustan Housing and Land Development Trust Limited, the original defendant of the suit, suffered the dismissal of the First Appeal confirming the judgment and decree of the Trial Court aforesaid, which was registered as title appeal No. 437 of 1964. The matter was further brought to High Court at Calcutta in the Second Appeal being S. A. No. 384 of 1967 by judgment debtor M/s. Hindustan Housing and Land Development trust Limited as sole appellant and during pendency of the appeal m/s. Orient Beverage Limited got the name substituted as appellant No. 2 on purchasing the property during pendency of the Second Appeal, which has squarely made the principle of "lis pendence" under Section 53 of thetransfer of Property Act applicable. M/s. Orient Beverage Limited accordingly got a status of judgment debtor/appellant No. 2 in the Second appeal. M/s. Orient Beverage Limited accordingly got a status of judgment debtor/appellant No. 2 in the Second appeal. In the Second Appeal S. A. No. 384 of 1967, the said M/s. Orient beverage Limited, the judgment debtor/appellant No. 2, who was the returnee of the vacant land under Section 6 of the said Act, which ultimately culminated to a vesting order of the premises 59, Canal Circular Road, calcutta, suffered judgment and the title of Tilak Sundari Devi was confirmed when in that proceeding, writ petitioners also were the parties by purchase of the property from the decree holder/respondent, the substituted legal heirs of Tilak Sundari Devi. ( 16 ) HENCE, from the aforesaid judgment and decree of the Trial Court confirmed the First Appeal Court as well as in the Second Appeal Court, there is no doubt about the title of Tilak Sundari Devi over the property in question and as a consequence thereof, title of the successor-in-interest by purchase, namely writ petitioners herein. In that view, the question as raised referring the aforesaid judgments of the Apex Court and the judgment of Division Bench of the Calcutta High Court have no applicability due to the special facts of this present case wherein, the writ petitioners have established with sufficient materials and documents, namely, the certified copy of the judgment and decree of the Trial Court, judgment and deciree of the First Appeal Court as well as the judgment and decree of the Second appeal Court i. e. Calcutta High Court about their title over the property. It is a settled law that judgment is a precedent if and only if the identical question of law has been applied on identical fact. It is also a settled law that a change of fact even by a mere word can lead a different conclusion in between the two cases, even if identical principle of law is applied. Reliance may be placed to the judgment passed in the case Regional manager v. Pawan Kr. Dubey, reported in AIR 1976 SC 1766 and Sfafe of punjab v. Baldev Singh, reported in 1999 (6) SCC 172 . Reliance may be placed to the judgment passed in the case Regional manager v. Pawan Kr. Dubey, reported in AIR 1976 SC 1766 and Sfafe of punjab v. Baldev Singh, reported in 1999 (6) SCC 172 . ( 17 ) APPLYING the aforesaid principle of law, accordingly, this Court is of the view that the point as raised that the Writ Court will not grant any relief in the writ application as their exists a disputed question of title has no factual and legal basis and accordingly such argument stand rejected by holding that the writ petitioners have been able to prove the title over the property in question by referring and relying upon the judgment and decree of Civil Court aforesaid crystallizing rights and liabilities of respective parties of civil suit. ( 18 ) ONCE such finding is reached by this Court, a corollary of such would be that the M/s. Orient Beverage Limited, a judgment debtor substituted instead of and place of original judgment debtor in the Second appeal, got no right to submit any return claiming his title over the said property by purchase from original judgment debtor. ( 19 ) THE State-respondent and Hospital Authority have submitted that as M/s. Orient Beverage Limited was in possession of the land in question, he was entitled legally to submit a return under Section 6 of the said Act and more specifically in terms of the provision as laid down under Section 2 (1) of the said Act by application of meaning of the word "to hold", irrespective of the fact of no title over land, now to be dealt with. Section 2 (1) and Section 6 of the said Act reads thus :"2 (1 ). "to hold" with its grammatical variations, in relation to any vacant land, means- (i) to own such land ; or (ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities. Explanation.-Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purposes of this Act, such land shall be deemed to be held by both such persons. 6. Explanation.-Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purposes of this Act, such land shall be deemed to be held by both such persons. 6. Persons holding vacant land in excess of ceiling limit to file statement.- (1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain : provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub-section shall have effect as if for the words "every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted. Explanation.- In this section, "commencement of this Act" means,- (i) the date on which this Act comes into force in any State; (ii) where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land; (iii) where any notification has been issued under clause (n) of section 2 in respect of any area in a State in which this Act is in force; the date of publication of such notification. " ( 20 ) ON a bare reading of the said definition "to hold" under Section 2 (1) relating to the vacant land it appears that a mere possessary right over such land would not suffice to say that the possessor was holding the vacant land until and unless such possession is on the strength of ownership or tenancy right or as mortgagee or under any irrevocable power of attorney or by a higher purchase agreement or partly in one of the said capacity and partly in any other of the said capacity or capacities, are proved. Hence, the contention that Tilak Sundari Devi was dispossessed from the property as it was under possession of M/s. Orient Beverage Limited and for that reason, Tilak Sundari Devi and/or her successor in interest by purchase were required to execute the decree to recover the possession, would not attract the right of M/s. Orient Beverage Limited under the definition of clause "to hold" as laid down in the 2 (1) of the said Act, has no legal basis. The possession was without any title as already declared by the Civil Court even up to the First Appeal stage and during pendency of the litigation in second Appeal stage, property was purchased by M/s. Orient Beverage limited, who stepped into the shoe of judgment debtor/appellant M/s. Hindustan Housing and Land Development Trust Limited. Applying the doctrine of "lis pendence", accordingly, he had no title over property, save and except status as judgment debtor to suffer the declaration of the Civil court on non-existence of title of judgment debtor. Hence, under Section 6 of the said Act, the returnee M/s. Orient Beverage Limited had no right to include the land of 59, Canal Circular Road, Calcutta in his return as vacant land taking resort to definition of the word "to hold" as it appearing under section 2 (1) of the said Act. Hence, under Section 6 of the said Act, the returnee M/s. Orient Beverage Limited had no right to include the land of 59, Canal Circular Road, Calcutta in his return as vacant land taking resort to definition of the word "to hold" as it appearing under section 2 (1) of the said Act. ( 21 ) HENCE, as a consequence thereof, the language as used in Section 6 of the said Act in the manner "holding vacant land" cannot be imposed in the name of returnee M/s. Orient Beverage Limited taking resort to the definition of the word "to hold" appearing at Section 2 (1) of the said Act as there is an embargo of such conception in view of the specific statutory provision qualifying the possession of such land under different capacities under Section 2 (1) (ii) of the said Act, which capacities were admittedly absent for applicability to the possessary right of M/s. Orient Beverage limited. ( 22 ) FROM the affidavit of Competent Authority, Respondent No. 3, it is an admitted fact that on 10th January, 1990 the said Authority got a notice under Section 26 (1) of the said Act filed by the writ petitioner praying necessary permission to sale the property. Despite such knowledge, the competent Authority proceeded with to pass order of vesting and demand acquisition under Section 10 (1) and Section 10 (3) of the said Act respectively. Furthermore, when the returnee M/s. Orient Beverage Limited filed a return under Section 6 of the said Act, naturally he submitted his claim of ownership over premises No. 59 Canal Circular Road, Calcutta by referring the purchase deed executed by the judgment debtor of Second appeal S. A. No. 384 of 1967 M/s. Hindustan Housing and Land Development trust Limited during pendency of Second Appeal of Calcutta High Court. In that view of the matter, it cannot be said by the State-respondents that they had no knowledge of the legal proceeding pending in the High Court at calcutta at that material time. In that view of the matter, it cannot be said by the State-respondents that they had no knowledge of the legal proceeding pending in the High Court at calcutta at that material time. ( 23 ) FURTHERMORE, since M/s. Orient Beverage Limited had no right title and also the possession in terms of the definition clause 2 (1) (ii) of the said Act the Competent Authority committed gross illegality by entertaining the return filed under Section 6 of the said Act by the returnee judgment debtor M/s. Orient Beverage Limited and proceeded with the matter to declare the concerned land as vested and under deemed acquisition of the government respectively under respective provisions of law. Since, M/s. Orient Beverage Limited had no right, title, interest as well as the possession in terms of Section 2 (1) (ii) of the said Act and legal heirs/successors of tilak Sundari Devi and the purchasers of the property from them, the present writ petitioners were decree holder, which subsequently was confirmed by the Division Bench of Calcutta High Court in the Second Appeal, the respondents Competent Authority accordingly had no jurisdiction to allow the returnee judgment debtor M/s. Orient Beverage Limited, to file the return showing the suit property as of his own and they had no jurisdiction to declare the property as vacant land on the basis of return filed by the said judgment debtor. As a resultant effect, the impugned order of deemed acquisition declaration under Section 10 (3) of said Act as published in the calcutta Gazette's publication dated 11th May, 1990 with effect from 5th may, 1990 being Annexure 'g' of the writ petition is set aside and quashed. As a consequence of, the action of taking possession of land by State-respondent and thereafter settling of said land by indenture of lease to M/s. Janapriya Hospital Corporation Limited, respondent No. 5 and handing over of possession to said respondent on 21 st June, 1991, all are set aside and quashed. As a consequent of such it is declared that the Staterespondents had no right to settle the property to the present lessee respondent No. 5 now renamed as the Appollo Gleneagles Hospital Limited and the deed of settlement accordingly did not vest the said respondent with any right, title and interest over the property as the State Government was not at all the owner of the property. It is made clear that as the order of status quo passed by Tarun Chatterjee, J. (as His Lordship then was) was subsisting with effect from 12th July, 1993 and as the respondent Hospital authority failed to satisfy the Court by producing any building plan that the construction was completed before 12th July, 1993, the construction even if as made was violative of the order of status quo passed by Tarun chatterjee, J. (as His Lordship then was) as the Court directed to maintain status quo as on that date in respect of the land involved in the writ application until further order. Hence, any action done by the respondent no. 5 and the added renamed respondent Appollo Gleneagles Hospital authority who is nothing but respondent No. 5 in changed name, showing the title over the property before the Calcutta Municipal Corporation accordingly was invalid and so far as the construction if already made over the property involved in the writ application was illegal per se applying the principle of law that any action contrary to Court's order is nullity. Reliance may be placed to judgments passed in the case Clarke and Others v. Chadburn and Others, reported in 1985 (1) All ER 511 at page 215, Krishna kumar Khemka v. Grind/ays Bank P. L. C. and Ors. , reported in AIR 1991 SC 899 , Delhi Development Authority v. Skipper Construction Company (P)Ltd. and Anr. , reported in AIR 1996 SC 2005 . ( 24 ) HAVING regard to such, the writ application is allowed in terms of prayer A. B. C. Let a writ of mandamus be issued in terms of the aforesaid prayers. Respondent No. 5 and added respondent Appollo Gleneagles hospital are directed to hand over possession of said land to the writ petitioners within three months from this date. As a consequence of such, said respondents would be entitle to have refund of salami and rental as paid to the State-respondents within three months from the date of handing over of possession to writ petitioners. State-respondents are directed to act accordingly. As a consequence of such, said respondents would be entitle to have refund of salami and rental as paid to the State-respondents within three months from the date of handing over of possession to writ petitioners. State-respondents are directed to act accordingly. ( 25 ) SINCE the petitioners got the title over the property and a question has been raised by the State-respondents that even on the assumption of title over the property by the writ petitioners they are attracted by the ceiling limit of the said Act, the writ petitioners as well as the legal heirs of Tilak Sundari Devi, who are the party respondents herein now would be at liberty to file appropriate return to the Competent Authority in terms of the said Act and the Competent authority will deal with the matter accordingly upon hearing the petitioners and the added respondents, legal heirs of Tilak Sundari Devi in accordance with law. Such return to be filed to satisfy the Competent Authority about their claim that the land was not vacant land due to its use as agricultural purpose on the material time when said Act came into effect and an adjudication to be done by the Competent Authority in accordance with law. A decision to be reached by said Officer within three months from this date, which to be communicated to the parties concerned within two weeks from the date of decision. Such return to be filed by the petitioners and the legal heirs of Tilak Sundari Devi within a month from this date disclosing all the materials. ( 26 ) SO far as the cost of proceeding is concerned, it appears from the paragraph 6 (h) and Paragraph 7 of the affidavit-in-opposition affirmed by one sri Muralidhar Biswas on 1st April, 2002 holding the post of Urban Land Ceiling officer, Calcutta attached with office of the Competent Authority, Calcutta, under the said Act, that the said Authority got knowledge of title over the property by sri Somenath Chakraborty, the writ petitioner, when writ petitioner filed an application under Section 26 (1) of the said Act praying necessary permission to sale. This document was received by them on 16th January, 1990 whereas from the affidavit of the said Officer as mentioned in Paragraph 6 (b) of the said officer it appears that final statement under Section 9 of the said Act was prepared and served upon the returnee/judgment debtor of the Second Appeal on 8th February, 1990 and a notification 10 (1) of the said Act published in the calcutta Gazette Extraordinary on 15th February, 1990. Thereafter a declaration under Section 10 (3) of the said Act was published on 11 th May, 1990 declaring the aforesaid land as "deemed to have been acquired" by the Government with effect from 5th May, 1990. The aforesaid relevant paragraphs are set out hereinbelow:-"6 (b ). As such Final Statement under Section 9 of the Act was prepared accordingly and served upon the returnee company on 8. 2. 90 vide No. 39/d. S. (F) U. L. (Cal) dated 1. 2. 90 Notification under section 10 (1) of the Act was published in the Calcutta Gazette extraordinary on 15. 2. 90. Nobody filed any claim whatsoever upon the vacant land under Section 10 (1) (ii) if the Act. As such Declaration under Section 10 (3) of the Act was published in the Calcutta Gazette extraordinary on 11. 5. 90 declaring the aforesaid excess vacant land in respect of premises Nos. 58, 59, 60, 61, 62, 72, 73, 79 and 81, canal Circular Road to be deemed to have been required by government with effect from 5. 5. 90. 6 (c ). A notice under Section 10 (5) of the Act was served upon the returnee vide No. 146/p. U. L dated 23. 5. 1990 to hand over possession of vested land measuring 34,147. 00 sq. mts. Of premises no. 58, 59, 60, 61, 62, 72, 79, 81, Canal Circular Road within 30 days from the date of receipt of the notice to Sri Ranjan Bose, the then Assistant Chief Valuer, C. I. T. Prossession of this vested land was handed over on 28. 5. 90 by Sri G. I. Agarwalla, General Manager, mis. Orient Beverage Ltd. This said piece of vested land measuring 34, 147. 00 sq. mts. of premises Nos. 5. 90 by Sri G. I. Agarwalla, General Manager, mis. Orient Beverage Ltd. This said piece of vested land measuring 34, 147. 00 sq. mts. of premises Nos. 58, 59, 60, 61, 62, 72, 73, 79 and 81, Canal Circular Road was subsequently allotted on thirty (30)years lease to M/s. Janapriya Hospital Corporation Ltd. of 21, Netaji subhas Road Kolkata vide No. 1500-U. L. /xv-11/90 of U. D. Deptt. , government of West Bengal dated Calcutta 1 to 4th April, 1991 for settling up a modern hospital and possession was handed over to this allottee on 21. 6. 91. 6 (h ). It is a matter of record that a notice under Section 26 (1)of the Act was given to Competent Authority, Kolkata on 1. 12. 89 by sri Somenath Chakraborty for selling 3 Kattahs of land of premises no. 59, Canal Circular Road to Sm. Santi Debi Budhin which was acknowledged by then Competent Authority on 16. 1. 90. 7. Regarding Paragraph 16 of the said application it is to State that a notice under Section 26 (1) of the Act was given to the competent Authority on 1. 12. 89 Sri Somenath Chakraborty for selling 3 (three) Kathas of land of premises No. 59, Canal Circular Road to sm. Santi Debi Budhin which was acknowledged, by the Competent authority on 16. 1. 90. Order of Hon'ble High Court in Appeal Decree no. 384 of 1967 against the Title Appeal 437/64 of Addl. Dist. Judge of the 5th Court Alipore came to the knowldege of Competent Authority kolkata only when Sri Debiprasad Chakraborty filed a petition on 10. 6. 99. " ( 27 ) HENCE, having regard to such State of affairs it appears that the state-respondents, the Competent Authority, despite knowledge of the title of the writ petitioners proceeded with the steps under Section 9, Section 10 (1) and Section 10 (3) and thereafter under Section 10 (5) of the said Act illegally. Considering such illegality, the writ petitioner having no other alternative moved this writ petition and got the order of status quo from this court as already referred to. In view of such State of affairs and gross illegality, a cost of Rs. Considering such illegality, the writ petitioner having no other alternative moved this writ petition and got the order of status quo from this court as already referred to. In view of such State of affairs and gross illegality, a cost of Rs. 10,000/- is imposed upon the State-respondents payable within a month from this date as a cost of this proceeding as the right of the citizen has been infringed despite the fact that the Competent civil Court declared the right, title and interest of the property involved in this writ application in favour of the Tilak Sundari Devi and as a consequence of that in favour of the writ petitioners, who are the substituted decree holder in the Second Appeal wherein the judgment debtor M/s. Orient Beverage limited suffered the dismissal of Second Appeal. The writ application is accordingly allowed. Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. Stay as prayed for by the State-respondents is refused.