JUDGMENT 1. ON 17 July 2008, after hearing the learned Counsel for the respective parties/ namely the writ petitioners and the respondents the writ petition was fixed for hearing on 24 July 2008 as a specially fixed matter. ON that date, on the basis of my prima facie satisfaction, wholly without prejudice to the rights and contentions of the parties to the proceedings an ad interim order was made directing the parties to the proceedings to maintain their respective places in respect of land in question and it was further ordered that there would be no declaration of award for a limited period, namely till 25 July 2008. 2. ON 25 July 2008, after hearing the submissions of the learned Counsel for the parties the above ad interim order was extended till 4 August 2008. The parties were also given the liberty to seek extension of the ad interim order as well as for vacating or modification of the same upon notice to the concerned parties. While making this order the point of maintainability of the writ petition as raised on behalf of CESC Limited was kept open so also its contention that the writ petition was liable to be dismissed on the ground of suppression of material facts. On 1 August 2008, Justice Debasish Kar Gupta was pleased to extend the said ad interim order "till 22 August 2008 or until further orders whichever was earlier". For the sake of convenience the reasons given by the Hon'ble Judge for extension of the ad interim order is set out below: "Having heard the learned Counsel appearing for the parties and after considering the materials on records, I find that no material is brought on record on behalf of the respondents for taking into consideration the relevant facts to adjudicate the issue involved in this matter. In view of the above, the interim order is extended till 22 August, 2008 or until further orders, whichever will be earlier. Let this matter appear before the Regular Bench on 18 August, 2008". 3. HIS Lordship was also pleased to reject the prayer for stay of operation of the order of extension of the ad interim order made on behalf of CESC Limited. 4. Let this matter appear before the Regular Bench on 18 August, 2008". 3. HIS Lordship was also pleased to reject the prayer for stay of operation of the order of extension of the ad interim order made on behalf of CESC Limited. 4. AN appeal preferred by the CESC limited against the said order of extension was also not entertained and the Appeal Court merely requested the High Court to decide finally as to whether the ad interim order passed by this Court should continue or not before the disposal of the writ petition on merits. I have, however, had the advantage or hearing the submissions of the learned senior Counsel for the parties, namely Mr. Kalyan Bandopadhyay for the writ petitioner, Mr. Anindya Kumar Mitra for the 6th and the 7th respondents herein (CESC Limited) and the learned Counsel Mr. A. N. Banerjee appearing on behalf of the State respondents in somewhat detail on the question as to whether the ad interim order passed earlier by me should continue until the writ petition is heard on merits. 5. ADMITTEDLY, the Land Acquisition Proceeding in question is governed by the provisions under Part - VII of the Land Acquisition Act, 1894, the Act in short, as the acquisition of land in question is for a Company, namely the 6th respondent herein, CESC Limited. 6. THERE is no dispute that the provisions under Sections 39,40 and 41 of the said Act apply to the present acquisition proceeding without any doubt. On a plain reading of these sections it is clear that the expression "previous consent" of the appropriate Government provided in Section 39 of the Act shall not be given by the Government in question (in this case the State Government) unless the Government concerned is satisfied either on the report of the Collector in Section 5(a) sub-section 2 or by an inquiry held as provided in Section 40 or rather in Clauses (a), (aa) and (b) of such Section. 7. THE consent contemplated in Section 40 of the Act, provides that there has to be a "satisfaction" on the part of the Government either on the basis of the report of the Collector or by an inquiry held as provided in Section 40 for the purpose of the acquisition of land by a Company. 7. THE consent contemplated in Section 40 of the Act, provides that there has to be a "satisfaction" on the part of the Government either on the basis of the report of the Collector or by an inquiry held as provided in Section 40 for the purpose of the acquisition of land by a Company. Section 41 of the Act provides that if the Government is satisfied after considering the report contemplated in Section 40 or the report of the enquiry provided in the said Section that the proposed acquisition is for any of the purposes mentioned in Clause (a) or Clause (aa) or Clause (b) of sub-section 1 of Section 40, then the State Government will require the Company, in this case CESC Limited, to enter into an agreement with the Government "providing to the satisfaction of the Government for the matters mentioned in sub-sections (1), (2), (3), (4), (4A) and (5) of Section 41 of the Act. 8. ADMITTEDLY, in the present case, since the present case is governed by Part - VII of the Act the entire cost of acquisition has to be borne by the 6th respondent, namely CESC- Limited. At this stage it must be mentioned that the entire compensation money of Rs. 22,00,000/- or Rs. 25,00,000/- have already been deposited by the 6th respondent with the concerned Collector. I accept the submissions on behalf of the writ petitioners made by Mr. Kalyan Bandopadhyay that for the purpose of giving the consent as contemplated in Section 39 of the Act the State Government must be satisfied with the purpose of acquisition and the said satisfaction of the Government can only be had on the basis of the report of the collector or by an inquiry held sis provided in Section 40 and not otherwise. 9. IN order to establish that there as no or rather could not be any such satisfaction on the part of the State Government without whose previous consent the acquisition could or cannot take place, the Land Acquisition Companies Rules, 1963, or rather, the relevant rules of such Rules framed in exercise of the powers conferred by Section 55 of the Land Acquisition Act, 1894 by the Central Government has been relied upon. 10. THERE is no doubt that the provisions under Rule 4 of the said Rules do apply to the present acquisition proceeding to the fullest extent. 10. THERE is no doubt that the provisions under Rule 4 of the said Rules do apply to the present acquisition proceeding to the fullest extent. The said rule 4 says that the appropriate Government (in this case the State Government) has to be satisfied with regard to certain matters before initiating acquisition proceedings. For the sake of convenience, Rule 4 of the said 1963 Rules is set out below. Appropriate Government to be satisfied with regard to certain matters before initiating Acquisition proceedings.(1) Whenever a Company makes an application to the appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely (i) that the Company has made its best endeavour to find out lands in the locality suitable for the purpose of acquisition; (ii) that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed; (iii) that the land proposed to be acquired is suitable for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the Company is in a position to utilise the land expeditiously ; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the Company a reasonable opportunity, to make any representation in this behalf, hold an inquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall- (i) in any case where the land proposed to be acquired is agricultural land consult the Senior Agricultural Officer of the District whether or not such land is good agricultural land; (ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the company ; and (iii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired. Explanation. Explanation. For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land. (3) As soon as may be after holding the enquiry under sub-rule (2) the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by the Government to the Committee. (4) No declaration shall be made by the appropriate Government under Section 6 of the Act unless (i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under Section 5A of the Act; and (ii) the agreement under Section 41 of the Act has been executed by the Company. 11. A combined reading of Sections 39, 10 and Rule 4 of the 1963 Rules makes it abundantly clear that in order to give consent the Government must satisfy itself either on the basis of the report of the Collector or by an inquiry held as provided in Section 40 of the said Act, and on the basis of the said Rule 4, the Collector has, in my opinion, a mandatory obligation to submit the report on the matters mentioned in Rule 4 of 1963 Rules. In order to give its "consent" the State Government has to satisfy itself on the basis of the report of the Collector which the Collector in his turn submits on the matters mentioned in Clauses (I) to (VI) of Rule 4 of the said Rules. 12. SINCE the Government has to satisfy itself on the basis of the report in order to give "consent", the report of the Collector assumes immense importance as Section 40 makes it clear that the "consent" of the Government shall not be given unless the Government concerned is satisfied either on the report of the Collector. In other words, if the report of the Collector is not a satisfactory report regarding the matters mentioned in Rule 4 of the 1963 Rules, the Government cannot give its consent, which is termed as "previous consent" in Section 39 of the said Act, for acquiring land for the Company. 13. In other words, if the report of the Collector is not a satisfactory report regarding the matters mentioned in Rule 4 of the 1963 Rules, the Government cannot give its consent, which is termed as "previous consent" in Section 39 of the said Act, for acquiring land for the Company. 13. THE writ petitioners, in the present case, have primarily based their case on the ground that in preparing the report the Collector did not comply with Rule 4 in the first place. In fact, the case of the writ petitioners in the writ petition is that since the acquisition proceeding was initiated and has since continued in absolute breach of the provisions of Sections 39, 40 and Rule 4 of the 1963 Rules the acquisition proceeding should be held to be bad as the same was vitiated because of non-compliance of the mandatory provisions of Sections 39,40 and Rule 4 of the 1963 Rules. 14. I have no manner of doubt, however, in my mind that the satisfaction on the part of the Government in order to give consent as contemplated in Sections 39 and 40 of the Act has to be an objective satisfaction and that is why the Collector has a fundamental duty to prepare the report upon full compliance of the requirements mentioned in Rule 4 of 1963 Rules. In the present case a bare perusal of the report of the Collector dated 21 June 2004, Annexure - R/2, at Page -11 of the affidavit-of-documents used on behalf of the second, third, fourth and the fifth respondents herein shows in what manner the report was prepared by the Collector. 15. BY merely quoting the matters referred to in Rule 4 of the 1963 Rules the Collector has at best made an attempt to save his face. I say this because it is impossible for a reasonable man with a rational approach to appreciate the contents of the report or the text thereof as the report does not say anything apart from, as I have just said, quoting the matters mentioned in Clauses (i), (ii), (iii), (iv) and (v) of Rule 4 of the said 1963 Rules. It is, in my opinion, impossible for any Government to satisfy itself for giving its consent as contemplated in Sections 39 and 40 of the said Act on the basis of the so-called report of the Collector. 16. It is, in my opinion, impossible for any Government to satisfy itself for giving its consent as contemplated in Sections 39 and 40 of the said Act on the basis of the so-called report of the Collector. 16. AFTER having considered the documents disclosed by the State respondents as well as the 6th respondent herein in their respective affidavits of documents including the above report, I find nothing which could even remotely suggest that the Company made its best endeavour and reasonable efforts to find out lands in the locality or to get such lands as contemplated in Clauses (i) and (ii) of Rule 4 at all. It is important to mention and I emphasize that there is nothing to show in the report that the Collector satisfied himself regarding the matters mentioned in Rule 4 of the 1963 Rules as well. The report of the Collector is extremely sketchy and the same does not even contain the minimum information which could indicate that the Collector was satisfied regarding the matters mentioned in Clauses (i), (ii), (iii), (iv) and (v) of Rule 4 of the said 1963 Rules at all. 17. THE plain reading of the report shows that the power of the Collector was exercised in an extremely mechanical and casual manner, to say the least. 18. HOW the Government could possibly satisfy itself on the basis of the said report of the Collector for the purpose of giving its consent as contemplated in Sections 39 and 40 of the Act is beyond the comprehension of a reasonable man. The requirements, in my opinion, of Sections 39 and 40 read with Rule 4 of the 1963 Rules are mandatory. The Government, in my opinion, has performed its mandatory duty, if at all, in giving its consent in an extremely mechanical and casual manner as the Government in giving its consent presumably satisfied itself (if there was any satisfaction on the part of the Government at all) only on the basis of the said sketchy, mechanical and casual report of the Collector. It is by now well-settled that if it is shown that the Government has ignored mandatory provisions of the Act in giving consent to initiate the acquisition proceeding such proceeding must be held to be bad and as such quashed. 19. It is by now well-settled that if it is shown that the Government has ignored mandatory provisions of the Act in giving consent to initiate the acquisition proceeding such proceeding must be held to be bad and as such quashed. 19. IN order to support my view, I must take the aid of the decision of the Supreme Court in the State of Gujaratv. Chaturbhai, reported in AIR 1975 SC 629 , when the Supreme Court in dealing with a very similar case of the present nature said in clear terms : The enquiry under Rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The Company at such an enquiry has to show that the Company made negotiations with the owners of the land, the owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the Company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under Section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of Section 5-A shall not apply and if it does so direct a declaration may be made under Section 6 at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. Under these Rules it is stated that the objections are of the following mature: (i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable If or the purpose for which it is notified; (iii) the land is not so well suited as other land; (iv) the area proposed is excessive; (v) the objector's land has been selected maliciously or vexatiously; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort, will take away important public right of way or other conveniences or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under Rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested therein on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under Section 5-A". [See Paragraphs 15 and 16 at Page 632 of the report]. 20. IN view of the above, and the view that I have taken that in the present case there is nothing to show that in discharging its mandatory obligations for giving consent as contemplated in Sections 39 and 40 of the Act the Government satisfied itself in the manner as provided in Section 40 and Rule 4 of the said 1963 Rules, I must continue the ad interim order made earlier and will keep the said order operative till the disposal of the writ petition on merits, as without such protection the petitioners will be substantially prejudiced, and above all I am prima facie satisfied that the acquisition proceeding has been vitiated because of non-compliance of the mandatory provisions of Section 39 and Section 40 of the Act read with Rule 4 of 1963 Rules. The writ petitioners or rather the owners of the lands in question were not given any opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act at all. 21. THE representations made by the petitioners have not been considered either. The attempt on the part of the 6th respondent (CESC Limited) to rely on an internal note to suggest that negotiation as mentioned in Sub-rule (ii) of Rule 4 of Rules 1963, in fact, took place is an extremely feeble attempt to make out a case but that internal note, namely dated 21 February 2003, if the said note is an authentic one, as produced in Court in course of the hearing, as the internal note of the 6th respondent had or has no role to play or rather cannot have any role to play so far the question of satisfaction on the part of the Government as contemplated in the said Sections 39 and 40 of the Act is concerned. 22. FURTHERMORE, the faint and feeble attempt on the part of the 6th and 7th respondents to rely on such internal note for the purpose of showing that the 6th respondent, in fact, made amongst other things its best endeavour to find out lands in the locality suitable for the purpose of acquisition and that it made all reasonable efforts to get such land by negotiation with the petitioners on payment of reasonable price and such efforts had failed, should thus be and is rejected outright. The 6th and the 7th respondents also have miserably failed to provide any answer as to what happened after the first petitioner, Pariwar Developers and Traders Pvt. Ltd. wrote to the 6th respondent, way back on 14 January 2003, making an offer to sell the land in question to the 6th respondent. None knew and knows why no reply was given to the said offer, what negotiations, if at all, had taken place pursuant to the said offer, whether any reply to the said offer was ever given to the first petitioner, whether the so-called offer made by the first petitioner was rejected or accepted. The above internal note of the 6th respondent, the authenticity of which I doubt very much, does not take the case of the 6th respondent anywhere, on the contrary, it makes me suspicious. The above internal note of the 6th respondent, the authenticity of which I doubt very much, does not take the case of the 6th respondent anywhere, on the contrary, it makes me suspicious. It may well be that the said note was brought into existence later just to set up a case that some "negotiations between the petitioners and 6th respondent had taken place for the purchase of the land in question but the same did not materialise in the end". 23. IT appears from the documents disclosed by the parties to this proceeding that after the said letter dated 14 January 2003 a long silence prevailed as far as the writ petitioners and the 6th respondent are concerned and the same is still continuing as there is nothing to show that the silence was ever broken from the 6th respondent's end. The contents of the letter dated 8 April 2003 of 6th respondent written by its Executive Director (Materials) addressed to the Joint Secretary, Government of West Bengal, Land and Land Reforms Department, Writers' Buildings are not further substantiated by any materials on record except the said internal note dated 21 February 2003 which, as aforesaid, has no bearing upon the case before me. 24. THE learned Counsel for the petitioners, however, tried to say that since nothing happened after the said letter was written by the first petitioner on 14 January 2003, or rather, since no negotiations had, in fact, taken place pursuant to the offer of the first petitioner, the said offer lost all its importance and that is why a copy thereof was not annexed to the writ petition. The petitioners, however, will be under an obligation to explain as to why the said letter dated 14 January 2003 was not annexed to the writ petition even for the purpose of showing that no negotiation regarding the sale of the land in question between the 6th respondent and the petitioners had ever taken place after the offer dated 14 January 2003. The view that I have taken for continuation of the ad interim order till the disposal of the writ petition, I do not think it necessary to deal with the decision referred to by the learned senior Counsel Mr. Mitra, namely Ramniklal N. Bhutta and Anr. The view that I have taken for continuation of the ad interim order till the disposal of the writ petition, I do not think it necessary to deal with the decision referred to by the learned senior Counsel Mr. Mitra, namely Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., reported in (1997)1 SCC 134 in particular or rather Paragraph 10 of the Judgment at page 140 of the report, as the general observations of the Supreme Court made in Paragraph 10 really cannot come in aid of the case of the 6th respondent as the Government, in my opinion, has been in utter breach of its mandatory obligations in forming its opinion, or rather, in satisfying itself for giving its consent to initiate acquisition proceeding for acquiring the land in question for the benefit of the 6th respondent herein. 25. SIMILARLY the decision reported in Girish Investment Private Ltd. and Anr. v. State of Karnataka and Ors., reported in (2008)7 SCC 53 also does not take the case of the 6th respondent any further as that case was not, in my opinion, dealing with a case of breach of mandatory duty or duties on the part of the Government in forming its opinion, or rather, in arriving at its satisfaction for giving its consent as contemplated in Sections 39 and 40 of the 1894 Act read with the said Rule 4 of the 1963 Rules in the first place. 26. INTERESTINGLY, however, the learned Counsel on behalf of the State respondents did not make any attempt apart from referring to the sketchy report of the Collector to show that the Government was, in fact, "satisfied" before giving its consent and that there had or has not been any breach on the part of the Government in giving its consent, as the Government was fully satisfied objectively as contemplated in Sections 39 and 40 of the Act, for initiation of acquisition proceeding. Thus, the ad interim order made on 17 July 2008 and extended from time to time will continue till the disposal of this writ petition on merits. In addition to the above ad interim order, there will be a further ad interim order in terms of Prayer (I) till the disposal of the writ petition as well. 27. Thus, the ad interim order made on 17 July 2008 and extended from time to time will continue till the disposal of this writ petition on merits. In addition to the above ad interim order, there will be a further ad interim order in terms of Prayer (I) till the disposal of the writ petition as well. 27. NEEDLESS to mention that the above ad interim order or orders are wholly without prejudice to the rights and contentions of the parties to this proceeding. The following direction is given for using affidavits for final disposal of this writ petition on merits. 28. LET the affidavit/s in-opposition be used within two week after the Puja Vacation, affidavit-in-reply be used positively within a week thereafter. LET the matter be placed for hearing three weeks after the Puja Vacation. Let the photocopy of the internal note produced in course of the hearing dated 21 February 2003 signed by the Deputy Chief Engineer (Planning and Construction), C.E.S.C. Limited, be kept on record duly countersigned. 29. HOWEVER, the original note will be produced if and when called upon to do so. 30. PARTIES would be at liberty to seek early hearing upon completion of the affidavits. If, however, no affidavit or affidavits is/are used by the respondents then the writ petitioner would be entitled to seek hearing without such affidavit or affidavits. For the sake of convenience, let a xerox plain copy of the order duly countersigned by the Assistant Registrar (Court) or the Assistant Court Officer be given to the learned Advocates for the parties on the usual undertakings.