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2012 DIGILAW 111 (CAL)

Gojer Brothers Pvt. Ltd. v. STATE OF WEST BENGAL

2012-02-03

INDIRA BANERJEE

body2012
Judgment : These writ petitions are directed against the initiation of proceedings under the Land Acquisition Act, 1894 for acquisition of a portion of Premises No.220/2, AJC Bose Road, Kolkata- 700017. On or about 26th May, 1995, Hamid Agencies Pvt. Ltd. executed a deed of lease bequeathing a portion of the ground floor of Premises No.220/2 A.J.C. Bose Road, Kolkata to Mrs. Kuldip Harbans Singh for a period of 16 years commencing from 21st March, 1955. The said Mrs. Kuldip Harbans Singh set up a school at the said premises which is known as Central Model School. In July, 1964, Gojer Brothers Pvt. Ltd., the petitioner No.1, purchased the said premises along with the subsisting lease. On or about 23rd August, 1969 Gojer Brothers filed a Title Suit being T.S. No.100 of 1969 against the lessee Mrs. Kuldip Harbans Singh for eviction. While the said suit was pending, Mrs. Kuldip Harbans Singh constituted a trust inter alia to take over and manage the school. On or about 21st March, 1971, the lease expired by efflux of time. On or about 8th May, 1979, the suit was decreed with a direction on the lessee Mrs. Kuldip Harbans Singh to vacate and deliver possession of the suit premises to Gojer Brothers. Gojer Brothers applied for execution of the decree. The lessee Mrs. Kuldip Harbans Singh filed an appeal which was numbered F.A. 14 of 1980 and obtained an order of stay of the execution proceedings. After a few years, Central Model School Guardian’s Association & another filed a writ petition being W.P. No.4394 of 1987 complaining about mismanagement of the school and praying for appointment of an administrator. An order was passed in the said writ petition, inter alia appointing a Special Officer to oversee the financial matters of the school relating to collection of funds, payment of salary etc. On 28th February, 1990, the appeal being F.A. No.14 of 1980 filed by the lessee Mrs. Kuldip Harbans Singh was dismissed for non-prosecution. The order of stay of the execution proceedings thus stood vacated. Thereafter Gojer Brothers started proceeding with the execution application. The Executing Court directed issuance of the writ of possession and gave possession to the petitioner on 6th June, 1990. Kuldip Harbans Singh was dismissed for non-prosecution. The order of stay of the execution proceedings thus stood vacated. Thereafter Gojer Brothers started proceeding with the execution application. The Executing Court directed issuance of the writ of possession and gave possession to the petitioner on 6th June, 1990. On the same day, that is, 6th June, 1990, an order was passed by this Court, in the writ petition, for restoration of possession of the premises in question to the Special Officer with police help. On or about 11th August, 1994, four Managing Committee members filed Title Suit No.59 of 1994 for declaration of the right, title and interest of the school in respect of the said premises and also for a declaration that the decree in Title Suit No.100 of 1969 was illegal and bad. The prayer of the plaintiffs for ad interim injunction was rejected whereupon an appeal being C No.212 of 1994 was filed on 12th August, 1994. The Appellate Court passed an order of status quo. By an order dated 15th July, 1996 the appeal was allowed and the interim order was confirmed. The appellate order was, however, stayed by the High Court by an order dated 3rd October, 1996 passed in a revisional application therefrom. In the meanwhile, the writ petition being W.P. No.4394 of 1987 filed by the Guardian’s Association was dismissed with a direction on the Receiver to make over possession to Gojer Brothers, subject to the result of the pending appeal being F.A. No.14 of 1980. Neither the school nor the writ petitioners filed any appeal from the aforesaid order. According to the petitioners hearing of the appeal, being F.A. No.14 of 1980 which had, in the meanwhile, been restored, was fixed on 25th July, 1997. Hearing was concluded on that day and judgment reserved. However, on 7th August, 1997 while the appeal was awaiting judgment, the school filed a suit in the Sealdah Court claiming right, title and interest in the said premises by way of adverse possession and obtained an ex parte order of status quo. By an order dated 15th September, 1997, the appeal of Mrs. Kuldip Harbans Singh being F.A. No.14 of 1980 was dismissed and the decree of eviction passed on 8th May, 1979 was confirmed. The lessee, Mrs. Kuldip Harbans Singh, filed a Special Leave Petition in the Hon’ble Supreme Court. By an order dated 15th September, 1997, the appeal of Mrs. Kuldip Harbans Singh being F.A. No.14 of 1980 was dismissed and the decree of eviction passed on 8th May, 1979 was confirmed. The lessee, Mrs. Kuldip Harbans Singh, filed a Special Leave Petition in the Hon’ble Supreme Court. On or about 6th April, 1998, the Special Leave Petition was dismissed. On 20th April, 1999, the Sealdah Court affirmed the earlier order of status quo dated 7th August, 1997. Against the order dated 20th April, 1999, Gojer Brothers preferred an appeal. The impugned order dated 20th April, 1999 was set aside in appeal on 20th December, 2000. It is alleged that between 3rd January, 2001 and 24th February, 2001, the learned Receiver could not make over possession of the suit premises to the petitioner, by reason of the obstructive attitude of the school. On 26th February, 2001, Md. Alauddin & Others filed a writ petition ostensibly against the State of West Bengal and obtained an ex parte order of status quo with regard to the said premises. The order of status quo was extended from time to time. Ultimately, however, the writ petition was dismissed by an order dated 10th April, 2001, as corrected on 14th May, 2001. One Harpal Singh, trustee of Gurunanak Educational Trust filed proceedings in Alipore Court being Misc. Case No.10 of 2001, under Order 21 Rules 97 and 101 read with Section 151 of the Civil Procedure Code and obtained an ex parte interim order dated 16th March, 2001, as a result of which the Receiver appointed by the Court could not make over possession to Gojer Brothers. On or about 4th April, 2001, the School filed a Civil Revisional Application in the High Court against the appellate judgment and order dated 20th December, 2000 setting aside the order of status quo, passed by the Sealdah Court. The said revisional application was dismissed by an order dated 10th March, 2001. Against the order dated 4th April, 2001, a Special Leave Petition was filed. The Special Leave Petition was also dismissed by an order dated 14th September, 2001. The Misc. Case No.10 of 2001, filed by Harpal Singh, was allowed by an order dated 22nd June, 2001. The said revisional application was dismissed by an order dated 10th March, 2001. Against the order dated 4th April, 2001, a Special Leave Petition was filed. The Special Leave Petition was also dismissed by an order dated 14th September, 2001. The Misc. Case No.10 of 2001, filed by Harpal Singh, was allowed by an order dated 22nd June, 2001. In August, 2001, Gojer Brothers filed an appeal being Title Appeal No.246 of 2001 against the judgment and order dated 22nd June, 2001 of the 9th Additional District Judge, Alipore. The aforesaid appeal was allowed by an order dated 29th May, 2004 and the judgment and order of the 9th Additional District Judge, Alipore was set aside. Harpal Singh filed a Second Appeal in the High Court at Calcutta being SAT No.2146 of 2004 along with an application for stay of the appellate order. The appellate order was duly stayed. However, by an order dated 18th March, 2005, the High Court dismissed the Second Appeal of the school with costs and directed the Receiver to take actual physical possession of the suit premises and hand the same over to Gojer Brothers. The school filed a Special Leave Petition being SLP (Civil) No.12003 of 2005, against the judgment and order dated 18th March, 2000, passed by the High Court in the Second Appeal being SA 2146 of 2004. The Special Leave Petition being SLP (Civil) No.1200 of 2005 was, however, dismissed on 12th July, 2005 with the observation that the directions given by the High Court for delivery of possession ought to be carried out with police help, if necessary. In the meanwhile on 10th June, 2005 the Government of West Bengal issued a notification under Section 4 of the Land Acquisition Act, 1894 for acquisition of 0.1365 acres at the said premises for the purpose of providing permanent accommodation to the school, which is impugned in Writ Petition No.1634 of 2005. The writ petition being W.P. 1931 of 2005 has been filed challenging the declaration dated 21st September, 2005 under Section 6 of the Land Acquisition Act. The petitioner were not granted any interim order in either of the writ petitions restraining the concerned respondents from proceeding with the acquisition. Mr. S.B. Mookerjee, appearing on behalf of the petitioners, submitted that the question of possession of school and/or Mrs. Kuldip Harbans Singh had finally been adjudicated. The petitioner were not granted any interim order in either of the writ petitions restraining the concerned respondents from proceeding with the acquisition. Mr. S.B. Mookerjee, appearing on behalf of the petitioners, submitted that the question of possession of school and/or Mrs. Kuldip Harbans Singh had finally been adjudicated. The Supreme Court directed that possession be restored to Gojer Brothers. Mr. Mookerjee submitted that a decree of Court for ejectment affirmed by the Supreme Court could not be nullified by purporting to regularize the possession of the land by the school. Mr. Mookerjee submitted that the State Government had failed to justify the acquisition. The expression ‘regularize’ meant to making regular and not legalization of that which was otherwise illegal. Mr. Mookerjee pointed out that Gojer Brothers had wrongly been dispossessed even after obtaining possession in execution of the ejectment decree. Citing the judgment of the Privy Council in Jai Berham & Ors. vs. Keder Nath Marwari & Ors. reported in AIR 1922 PC 169, Mr. Mookerjee submitted that a litigant cannot prejudicially be affected by a wrong order passed by Court. Mr. Mookerjee also referred to the judgment of the Supreme Court in Jang Singh vs. Brijlal & Ors. reported in (1964) SCR 146 where the Supreme Court observed that it was the bounden duty of the Courts to see that if a person was harmed by a mistake of the Court, he should be restored to the position he would have been in, but for that mistake. The proposition that a litigant cannot prejudicially be affected by a wrong order passed by the Court is unexceptionable. There can be no doubt, that if a person is harmed by a mistake of Court, that person should be restored to the position in which he would have been, but for that mistake. The question is whether possession of the premises in question can be restored to Gojer Brothers at this stage, after acquisition under the provisions of the Land Acquisition Act, 1894. The question is whether possession of the premises in question can be restored to Gojer Brothers at this stage, after acquisition under the provisions of the Land Acquisition Act, 1894. Section 4 of the Land Acquisition Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect is required to be published in the Official Gazette, and in two daily newspapers circulating in that locality, of which at least one should be in the regional language, and the Collector is required to cause public notice of the substance of such notification to be given at convenient places in the said locality. The running of a school for education of children is undoubtedly a public purpose, for which land might be acquired by the Government. Section 3(f)(vi) expressly defines ‘public purpose’ to include the provision of land for any educational scheme carried out by a society, registered under the Societies Registration Act, 1860 or under any corresponding law for the time being in force in the State. It is nobody’s case that the requisites of Section 4, of Gazette Notification, newspaper publication and local notice have not been complied with. Mr. Mookerjee submitted that the entire acquisition was on the instigation and/or at the behest of the school and/or its management. It is not for the school to justify the purported acquisition. May be, as argued by Mr. Mookerjee, the school authorities approached the Government of West Bengal with a request to acquire the property after having been unsuccessful in resisting delivery of possession to Gojer Brothers. However, this would not, in itself, vitiate the acquisition. The condition precedent for acquisition of land under the provisions of the Land Acquisition Act is the existence of a ‘public purpose’, which is there in this case. Since the premises in question have been acquired for providing accommodation for running the school, the school is entitled to appear and justify the acquisition. Mr. Mookerjee’s submission that the acquisition was not for a public purpose but for a private purpose, for a private party by colourable exercise of statutory powers is difficult to accept. As observed above, the running of a school for education of children is a public purpose. Mr. Mookerjee’s submission that the acquisition was not for a public purpose but for a private purpose, for a private party by colourable exercise of statutory powers is difficult to accept. As observed above, the running of a school for education of children is a public purpose. Even though the school may be a private school it performs the public duty of imparting education to children. Moreover, as observed above, ‘public purpose’ in Section 3(f) includes the running of a non-government educational institution. By the Memo No.500-SE(S)/78-1/05 dated the 12th May, 2005 of the Joint Secretary to the School Education Department, Government of West Bengal, Secondary Branch, on which emphatic reliance has been placed on behalf of the petitioner to attack the acquisition, the Land Acquisition Collector was only informed that the Governor had been pleased to accord approval for acquisition of the said premises and was further informed of the view the School Education Department that it was necessary to acquire the said premises in the interest of the students of the school. The Land Acquisition Collector was requested to proceed with the acquisition immediately and to hand-over formal possession to the Secretary, Managing Committee of the school. The Supreme Court finally adjudicated the rights of Gojer Brothers as landlord vis-à-vis its lessee, whose lease term had expired. What has finally been adjudicated by the Supreme Court, is the question of whether Mrs. Kuldip Harbans Singh had any right to remain in possession of the premises in question, as lessee and/or tenant under Gojer Brothers. The aforesaid question was answered in the negative, by dismissal of the Special Leave Petitions. From the orders of the Supreme Court it is patently obvious that the attention of the Supreme Court was not drawn to the acquisition proceedings and the Supreme Court had no occasion to consider the issue of whether the said premises or any part thereof could be acquired under the Land Acquisition Act. The Supreme Court did not restrain the respondents from proceeding with the acquisition proceedings. The order of the Supreme Court directing delivery of possession to Gojer Brothers, was passed before the Declaration under Section 6 of the Land Acquisition Act was issued. In State of Andhra Pradesh & Ors. vs. Goverdhanlal Pitty & Ors. reported in (2003) 4 SCC 739 , cited by Mr. The order of the Supreme Court directing delivery of possession to Gojer Brothers, was passed before the Declaration under Section 6 of the Land Acquisition Act was issued. In State of Andhra Pradesh & Ors. vs. Goverdhanlal Pitty & Ors. reported in (2003) 4 SCC 739 , cited by Mr. Pranab Kumar Dutta, appearing on behalf of the respondent Nos.3 & 4, the Supreme Court held that the right of eminent domain was a sovereign power of the State, distinguished from its rights and liabilities as a tenant of premises belonging to a private party. Merely because an eviction order had been passed against the State, as tenant of an old school building, owned by a private party and the State had given an undertaking to vacate, proceedings initiated under the Land Acquisition Act soon thereafter, for acquisition of the premises, would not be vitiated by malice in law. The proposition of law which emerges from the judgment of the Supreme Court in Goverdhanlal Pitty (supra) is that the power of the State to acquire land under the provisions of the Land Acquisition Act, could be exercised in favour of a person against whom a decree of eviction has been passed, provided the land is required for a public purpose. In this case, there can be no doubt that the premises are required for running a school, which is most certainly a public purpose. After the notification under Section 4 and enquiry under Section 5A(2) the tentative cost of acquisition was assessed at Rs.2,30,73,004/-. On 25th August, 2005 the school deposited Rs.1,15,36,502/- being 50% of the tentative cost of acquisition. The declaration under Section 6 impugned in the writ petition being W.P.1931 of 2005 was issued on 21st September, 2005, after which the appropriate Government issued an order under Section 7 of the Land Acquisition Act on 31st July, 2006, directing the Collector to make order for the acquisition of the notified part of the said premises. After the cost of acquisition was finally estimated at Rs.2,37,49,970/-, the school deposited the balance sum of Rs.1,22,30,458/-on 6th September, 2006. Thereafter notice under Section 9 of the Land Acquisition Act was issued to persons interested. On 28th September, 2006, the Land Acquisition Collector made an award determining compensation for the acquired portion of the said premises at Rs.2,32,20,485.90 paisa. After the cost of acquisition was finally estimated at Rs.2,37,49,970/-, the school deposited the balance sum of Rs.1,22,30,458/-on 6th September, 2006. Thereafter notice under Section 9 of the Land Acquisition Act was issued to persons interested. On 28th September, 2006, the Land Acquisition Collector made an award determining compensation for the acquired portion of the said premises at Rs.2,32,20,485.90 paisa. The awarded amount was deposited in the Court of Special Land Acquisition Judge, Alipore on 12th October, 2006. On 14th November, 2006 Gojer Brothers filed an application for reference under Section 18 of the Land Acquisition Act. On 25th May, 2009, the Land Acquisition Collector took possession of the said premises and handed the same over to the requiring body, who in turn hand the same over to the beneficiary, that is, the school. In support of his contention that the purported acquisition was in colourable exercise of statutory powers, Mr. Mookerjee emphasized on the aforesaid letter dated 12th May, 2005 from the Joint Secretary, Government of West Bengal to the Land Acquisition Collector, Calcutta whereby the Joint Secretary informed the Land Acquisition Collector that the Governor had given approval for acquisition of a part of the said premises, for the purpose of “regularising the possession” of the land by Central Model School.” Referring to the Affidavit-in-Opposition affirmed on behalf of the State Government by Hiralal Naiya on 5th August, 2010, Mr. Mookerjee argued that the Land Acquisition Collector proceeded to acquire the land as per the directions of the Joint Secretary (ex officio). Mr. Mookerjee submitted that the Land Acquisition Collector did not apply his mind independently. The entire proceedings were, therefore, vitiated and non est in the eye of law. In support of his submission, Mr. Mookerjee referred to the judgment of the Privy Council in Macfoy vs. United Africa Co. Ltd. reported in (1961) 3 All. E.R. 1169. The communication No. No.500-SE(S)/78-1/05 dated the 12th May, 2005 of the Joint Secretary to the School Education Department, Government of West Bengal, Secondary Branch, annexed to the writ petition, to the Land Acquisition Collector, reveals that the said premises had been requisitioned under the provisions of the West Bengal (Requisition and Acquisition) Act, 1948 (Act 2 of 1948), way back in 1967, long before the suit, filed by Gojer Brothers against Mrs. Kuldip Harbans Singh, was decreed and possession was handed over to the Secretary of the school in 1971. However, the premises was not acquired and the requisition had to be cancelled, possibly because the school was not in a position to deposit its share of the compensation amount then. Land acquisition proceedings are initiated upon publication of preliminary notification under Section 4, whenever it appears to the appropriate Government that land in any locality is likely to be needed for a public purpose. Similarly, a declaration under Section 6 is also required to be published when the appropriate Government is satisfied that any particular land is needed for a public purpose. On a reading of Section 4, with Section 6 of the Land Acquisition Act, the condition precedent for initiation of land acquisition proceedings is formation of opinion of the ‘appropriate Government’, which in this case, is the State Government, that the land is required for a public purpose. The decision to initiate acquisition is not an independent decision of the Land Acquisition Collector. The Land Acquisition Collector was not required to independently apply his mind before publication of notice under Section 4 of the Land Acquisition Act. The judgment in Macfoy vs. United Africa Company Ltd.(supra) which is not binding on this Court, is, in any case, clearly distinguishable on facts. The opinion of the State Government would necessarily mean opinion formed upon deliberations and discussions at various levels, that is endorsed by the Governor. Once the appropriate government forms the opinion that the land is likely to be needed or is needed for a public purpose, and a notification under Section 4 of the Land Acquisition Act is issued, the Land Acquisition Collector is required to cause public notice of the substance of the notice under Section 4 to be given at convenient places in the locality in which the land is situate. A mere green signal from the concerned Department of the Government, to the Land Acquisition Collector, to proceed with the acquisition by issuance of notice under Section 4 and declaration under Section 6 cannot be construed as any direction or even request to give a go-bye to Section 5A or to render the proceeding under Section 5A an empty formality. In this case, the petitioners have been given the opportunity of hearing. In this case, the petitioners have been given the opportunity of hearing. The declared public purpose for which the said premises and/or part there of was acquired, was to provide accommodation to Central Model School. It was, therefore, not necessary to restrict acquisition only to that portion of the land actually occupied by the school. If the school required a larger area of land, it would be permissible for the appropriate government to acquire a larger area. The submission that the respondents were only regularizing possession and thus not entitled to acquire area in excess of that which was in possession of the school is, in my view, not sustainable in law. In view of Section 6(3), a declaration under Section 6 is a conclusive evidence that the land is required for a public purpose. The said premises having been acquired to provide accommodation for running a school, there was no bar to acquisition of area in excess of the area already under occupation of the school. What is relevant is that the acquisition is for a public purpose and the petitioners will have to be paid compensation in accordance with the provisions of the Land Acquisition Act. The entire acquired area would necessarily have to be used for the public purpose of running Central Model School and compensation would have to be determined taking the excess area into account. Mr. Mookerjee submitted that the proviso to sub-section (2) of Section 4 of the Land Acquisition Act had not been complied with. The building was not entered into. Nor was any notice in writing of the intention to do so, given to the occupiers, including the writ petitioners, before publication of the notification under Section 6 of the Act. Section 4(2) is, however, only an enabling provision, which empowers any officer generally or specifically authorized by the Government, or his servants or workmen, to enter the land proposed to be acquired, for the purposes specified in the said subsection. Compliance with Section 4(2) is not mandatory. It is not necessary to enter the premises when no soil testing is necessary and where it is not necessary to ascertain whether the land is suitable for the purpose for which it is sought to be acquired. It is not in dispute that the provisions of Section 4 have been complied with. Compliance with Section 4(2) is not mandatory. It is not necessary to enter the premises when no soil testing is necessary and where it is not necessary to ascertain whether the land is suitable for the purpose for which it is sought to be acquired. It is not in dispute that the provisions of Section 4 have been complied with. It was not necessary to give any further individual notice to occupiers before publication of notification under Section 6 of the Land Acquisition Act. Mr. Mookerjee submitted that Section 5A of the Act provides for hearing of objections. Sub-section (2) of Section 5A requires the Collector to make a report giving his views on the objections by the owners and/or occupiers to enable the Government to take a decision in the matter. Mr. Mookerjee submitted that the declaration under Section 6 of the Land Acquisition Act, 1894 that the land was required for public purpose, was made mechanically, in pretended exercise of statutory powers, the conditions precedent for such declaration not having been fulfilled. No report was furnished by the Collector on the objections of the owners. The provisions of Section 5A had thus not been complied with. The petitioners have apparently been given an opportunity of hearing under Section 5A. Notices of hearing were issued. The allegation that no report under Section 5A had been prepared is an after thought, not substantiated by the materials on record. There is nothing in the writ petition to show that the petitioners made any request to the Land Acquisition Collector to allow the petitioners inspection of the report under Section 5A of the Land Acquisition Act, or to furnish the petitioners with a copy of the said report. As held by the Supreme Court in K. Karim Miya vs. State of Gujarat reported in AIR 1977 SC 497 , unless there are weighty reasons, a report in a public enquiry under Section 5A should be made available to the persons who take part in the enquiry. However, failure to furnish a copy of the report of the enquiry under Section 5A, and that too, in the absence of any request or demand, cannot vitiate the enquiry, if it is otherwise, not open to any valid objection. However, failure to furnish a copy of the report of the enquiry under Section 5A, and that too, in the absence of any request or demand, cannot vitiate the enquiry, if it is otherwise, not open to any valid objection. Under Section 5A (2), a person interested in land can at best endeavour to show that the declared purpose for which land is sought to be acquired is not a public purpose, or alternatively, satisfy the Collector that the land proposed to be acquired is not suitable for the purpose for which it is proposed to be acquired. For example, where land is proposed to be acquired for construction of a multi-storeyed building to sub-serve a public purpose, persons interested may be able to convince the Collector that the land is not suitable for construction of multi-storeyed building, and should, therefore, not be acquired. Similarly, persons interested in the land might be able to show that the declared purpose of acquisition is not a public purpose, but a private purpose, which is not the case here, as discussed above. The ultimate decision is, however, of the appropriate government, which is final. If acquisition is for a public purpose and the appropriate government is of the view that the site proposed to be acquired is suitable for the public purpose, objections of the persons interested are of no consequence. The right, if any, of persons interested, is to claim compensation in accordance with law. An acquisition for public purpose should not, therefore, be interfered with by Court in proceedings under Article 226 of the Constitution of India on the ground of any procedural irregularity in compliance of Section 5A.The Court is only to examine whether the land has been acquired for a public purpose. In this case, it is reiterated that the acquisition is for a public purpose of running a school. The school has been run at the said premises for decades. This in itself shows that the said premises has, in the past, sub-served and will continue to sub-serve the public purpose of running a school. This Court is, therefore, not inclined to interfere with the acquisition on the ground of alleged non-compliance of Section 5A (2). An order under Section 7 of the Land Acquisition Act was issued on 31st July, 2006. Mr. This Court is, therefore, not inclined to interfere with the acquisition on the ground of alleged non-compliance of Section 5A (2). An order under Section 7 of the Land Acquisition Act was issued on 31st July, 2006. Mr. Mookerjee also submitted that the State Government ignored title deeds, property tax receipts, photo copies of the counter foils of rent receipts and other documents provided by Gojer Brothers. Mr. Mookerjee also submitted that there were conflicting opinions regarding the date of making of the award. The date of the award is, however, a matter of record and any error or omission, recording of dates in any order or other document would not vitiate the proceedings. In any case, Gojer Brothers has sought a reference to Court under Section 18 of the Land Acquisition Act. All objections to the award may be agitated before the Court under Section 18. Mr. Mookerjee’s submission of denial of natural justice is unsubstantiated. The willingness, if any, of Gojer Brothers to provide 15 cottahs of vacant land for setting up the school is not material to the issue of legality of acquisition. Mr. Bhuinya, appearing on behalf of the petitioner, submitted that the acquisition proceedings were not in accordance with the provisions of the Land Acquisition Act as much as the notice under Section 4 in Form 3D was not signed by the Deputy Secretary. Mr. Bhuinya argued that executive instructions under Article 162 had been embodied in West Bengal Land Acquisition Manual, 1991. The prescribed format Form 3D was required to be signed by the Collector and Deputy Secretary. Mr. Bhuinya argued that Form 3D had not been signed by the Deputy Secretary but by the Land Acquisition Collector and ex-officio Joint Secretary. Mr. Bhuinya also argued that Kali Sadhan Bandyopadhyay, has been designated ex officio Joint Secretary to the Government of West Bengal in violation of Rule 16(2) of the West Bengal Service Rules, in terms whereof a Government employee cannot be appointed substantially in two or more permanent posts at the same time. However, from Annexure R-1 to the Affidavit-in-opposition, it appears that Kali Sadhan Bandyopadhyay has been vested with powers under Sections 4, 5A and 6 of the Land Acquisition Act. However, from Annexure R-1 to the Affidavit-in-opposition, it appears that Kali Sadhan Bandyopadhyay has been vested with powers under Sections 4, 5A and 6 of the Land Acquisition Act. Section 3(c) of the Land Acquisition Act defines “Collector” to mean the Collector of District and includes a Deputy Secretary and any other officer specifically appointed by the appropriate Government to perform the functions of a Collector under this Act. Under Section 4, the Collector is to cause public notice of the substance of such notice under Section 4 of the appropriate government to be given at convenience places in the locality. In case of any inconsistency between any business rules and any provision of statute, the provision of statute would prevail. It is not in dispute that the notice in Form 3D has been signed by the Collector an ex-officio Joint Secretary. In Modan Mohan Pathak vs. Union of India reported in AIR 1978 SC 803 = (1978) 2 SCC 50 , cited by Mr. Bhuinya, the employees of Life Insurance Corporation had challenged the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976, which sought to render ineffective, a settlement dated 24th January, 1974 arrived at between the Life Insurance Corporation (LIC) and different associations of its employees, for payment of casual bonus. On a writ petition filed by the employees, this Court had issued a Writ of Mandamus directing LIC to give effect to the settlement. LIC preferred an appeal. However, before the appeal could be heard, the aforesaid Act was passed for modification of the settlement dated January 24, 1974. The Supreme Court held that the benefits of the rights recognized by the judgment of the Calcutta High Court could not be indirectly taken away by Section 3 of the Act which was selectively directed against specified settlements. There can be no dispute with the proposition laid down in State of Uttar Pradesh & Anr. vs. Man Mohan Nath Sinha & Anr. reported in (2009) 8 SCC 310 cited by Mr. Bhuinya, that judicial review cannot be directed against the decision but the decision making process. The Court may not re-appreciate and reappraise evidence. However, if there is any infirmity in the decision making process, the Court can interfere. In Commissioner of Income Tax, Shimla vs. Greenworld Corporation, Parwanoo reported in (2009) 2 SCC 639, cited by Mr. Bhuinya, that judicial review cannot be directed against the decision but the decision making process. The Court may not re-appreciate and reappraise evidence. However, if there is any infirmity in the decision making process, the Court can interfere. In Commissioner of Income Tax, Shimla vs. Greenworld Corporation, Parwanoo reported in (2009) 2 SCC 639, cited by Mr. Bhuinya, the Supreme Court held that when a statute provides for different hierarchies in relation to passing of appellate and original orders, by no stretch of imagination, could a higher authority interfere with the independence which was the basic feature of any statutory scheme involving adjudicatory process. A judgment is a precedent for the issue of law, that is, decided. A judgment has to be construed in the background of the facts in which the judgment was rendered. Paragraphs and/or sentences from a judgment cannot be construed out of context. The judgment has no application in this case, since issuance of notice under Section 4 of the Land Acquisition Act, 1894 does not involve any adjudicatory process. In Paluru Ramkrishnaiah vs. Union of India reported in (1989) 2 SCC 541 , cited by Mr. Bhuinya, the Supreme Court held that in the absence of legislative rules, it was competent for the State Government to take a decision in exercise of its executive power under Article 162. There can be no doubt that the Government has power to issue executive instructions. Administrative instructions cannot override rules framed under Article 309.However, where government orders are not in conflict with the Rules, or are supplemental to the Rules, the same might be given effect to in consonance with the Rules. The judgment is not an authority for the proposition that initiation of proceedings by notices signed by the Land Acquisition Collector and ex officio Joint Secretary would be illegal and ultra vires. In Gulabrao Keshavrao Patil vs. State of Gujarat reported in (1996) 2 SCC 26 , cited by Mr. Bhuinya, the Supreme Court held that Articles 166 (1) and 166 (2) expressly envisage authentication of all executive actions and provide that executive actions should be expressed to be taken in the name of the Governor and authenticated in the manner specified in the rules made by the Governor. Bhuinya, the Supreme Court held that Articles 166 (1) and 166 (2) expressly envisage authentication of all executive actions and provide that executive actions should be expressed to be taken in the name of the Governor and authenticated in the manner specified in the rules made by the Governor. If the act of the Government and the order is duly authenticated as per Article 166(2) and business rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken according to rules. The decision of a Minister under the Business Rule is not final and/or conclusive until requirements in terms of Clause (1) and (2) of Article 166 are complied with. In Rajureshwar Associates vs. State of Maharashtra reported in (2004) 6 SCC 362 , cited by Mr. Bhuinya, the Supreme Court held that contravention of Rule 9 of the Maharashtra Government Rules of Business, which required that any proposal which affected the finance of the State, that not have the consent of the Finance Minister, to be placed before the Cabinet, rendered a decision to alienate Government property invalid. In Pancham Chand & Ors. vs. State of Himachal Pradesh & Ors. reported in (2008) 7 SCC 117 , cited by Mr. Bhuinya, the Supreme Court held that the decision of whether or not to grant permit to individual applicants for route permit to ply vehicles had to be taken by the Regional Transport Authority and the State had no say in the matter. The Chief Minister could not, therefore, make recommendations for grant of permit to any particular person, nor could the Director of Transport forward such recommendation to the Regional Transport Authority as the same would amount to interference with the functioning of the quasi-judicial authority. Although the State has general control, such control could only be exercised in terms of Article 162. The State could only lay down its policy in terms of which statutory authorities were bound to act, but that would not authorize any Minister or the Chief Minister of the State to act in violation of the statute. There can be no doubt that the executive power of State is subject to Article 162 of the Constitution. The State could only lay down its policy in terms of which statutory authorities were bound to act, but that would not authorize any Minister or the Chief Minister of the State to act in violation of the statute. There can be no doubt that the executive power of State is subject to Article 162 of the Constitution. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State is to extend to matters with respect to which the legislature of the State has power to make laws. The proviso to Article 162 provide that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. It is not understood how Article 162 has been contravened in this case. Under Article 166(1) all executive action of the Government of a State is to be expressed to be taken in the name of the Governor. Article 166(2) requires orders or other instruments made and executed in the name of the Governor to be authenticated in such a manner as might be specified in the Rules to be made by the Governor, and the validity of an order or instrument which is so authenticated is not to be called in question on the ground that it is not an order or instrument made or executed by the Governor. Article 166(3) empowers the Governor to make Rules for more convenient transaction of the business of the Government of the State. An order or other instrument executed in the name of the Governor cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor, if it is authenticated in the manner prescribed by the Rules. Authentication of an order in accordance with the Rules of business raises a presumption of genuineness. Article 166(2) places an embargo on challenge to such orders or instruments on the ground of the same not being orders or instruments made or executed by the Governor. Authentication of an order in accordance with the Rules of business raises a presumption of genuineness. Article 166(2) places an embargo on challenge to such orders or instruments on the ground of the same not being orders or instruments made or executed by the Governor. Article 162(2) is not to be construed to mean that an order or instrument in the name of the Governor is invalid if that order or instrument is not authenticated as per the Rules. Furthermore, in case of any inconsistency between the statutory provisions of statute enacted by competent legislature and the Rules of business, the statutory provision would prevail. Rules of business cannot override statute. It is reiterated at the cost of repetition that under Section 4 of the Land Acquisition Act, the Collector is required to cause public notice of the substance of the notification under Section 4 to be given at convenient places. In this case, the notice has admittedly been signed by the Land Acquisition Collector. Section 4 does not require that the notice should also be signed by the Deputy Secretary. As per the guidelines and/or norms laid down in the West Bengal Land Acquisition Manual, an application for acquisition of land is required to be sent to the Land Acquisition Collector. On receipt of requisition, the Collector is to place the matter before the Screening Committee constituted for the purpose, unless otherwise directed by the Government. When the Committee recommends acquisition or when the matter does not require approval of the Committee, the Land Acquisition Collector is to prepare a draft notification under Section 4 of the Act in Form 3 and send the same to the Land and Land Reforms Department. After notification under Section 4 is published, the Collector has to cause public notices of the substance of the notification under Section 4 to be given at convenience places. Such notices are required to be given in the prescribed format, Form 3D appended to the West Bengal Land Acquisition Manual. The format being Form 3D has space for signature of Collector under Act 1 of 1894 and also space for signature of the Deputy Secretary. The guidelines and/or norms as laid down in the Manual do not specifically prescribe that Form 3D should be signed by the Deputy Secretary and none else. The format being Form 3D has space for signature of Collector under Act 1 of 1894 and also space for signature of the Deputy Secretary. The guidelines and/or norms as laid down in the Manual do not specifically prescribe that Form 3D should be signed by the Deputy Secretary and none else. In the absence of any provision in the Land Acquisition Act or the Manual, which requires the notice of the substance of the notification under Section 4(1) to be signed by the Deputy Secretary, a notice cannot be attacked on the ground of the same not having been signed by the Deputy Secretary. Moreover, a notice which is otherwise in accordance with Section 4 of the Land Acquisition Act has to be upheld since Section 4 of the Land Acquisition Act prevails over Form 3D. In Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-I & Anr. reported in (2008) 14 SCC 151, cited by Mr. Bhuinya, the Supreme Court held that even a pure administrative act entailing civil consequences has to be in compliance with the principles of natural justice. There can be no doubt that any act entailing civil consequence whether judicial, quasi-judicial or administrative would have to be in compliance of principles of natural justice. The proposition of law laid down in Sahara India (supra) is well-established but has no application in the facts of this case. In Chairman, U.P.S.C. vs. P.D. Khandelwal reported in 2003 (2) CHN Cal. 20, cited by Mr. Bhuinya, a Division Bench of this Court held that there could not be any administrative executive instruction contrary to the rules framed under Article 309 of the Constitution. The judgment has no application. In this case, since the said premises have been acquired in accordance with the provisions of the Land Acquisition Act. In case of any conflict between statute and business rules, the statute would prevail. The judgment of this Court in Ramchandra Chowdhury vs. Secretary to the Government of West Bengal & Ors. reported in AIR 1964 Cal. 265 , cited by Mr. Bhuinya, has no application in this case, since the notification under Section 4 and the declaration under Section 6 were expressed to be in the name of the Governor. In Society of St. Josephs College vs. Union of India reported in (2002) 1 SCC 273 , cited by Mr. reported in AIR 1964 Cal. 265 , cited by Mr. Bhuinya, has no application in this case, since the notification under Section 4 and the declaration under Section 6 were expressed to be in the name of the Governor. In Society of St. Josephs College vs. Union of India reported in (2002) 1 SCC 273 , cited by Mr. Bhuinya, the Supreme Court held that Article 30(1A) requires the State to make specific law to provide for the compulsory acquisition of the property of minority institution. The relevance of the judgment is not understood since in the instant case, there is no acquisition of any property of minority institution. Acquisition has been made for the benefit of a minority institution. The judgment in State of U.P. vs. Synthetics and Chemicals Ltd. reported in (1991) 4 SCC 139 pertaining to principle of carelessness and/or in curia has no application in the facts of the instant case. In Arnit Das vs. State of Bihar reported in (2000) 5 SCC 488 , cited by Mr. Bhuinya, the Supreme Court held that a decision not expressed, not accompanied by reasons and not sent on conscious consideration of all issues cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Article 30 of the Constitution in itself provides that a minority institution cannot be deprived of aid. Moreover, the fundamental duties cannot have any precedence over the fundamental rights. Mr. Pranab Kumar Dutta, appearing on behalf of the respondent Nos.3 and 4 submitted that the Collector made his award on 28th October, 2006 and issued possession notice under Section 16 on 18th May, 2009 and thereafter took possession of the premises on 25th May, 2009. Possession was handed over to the requiring body on the same day, that is, 25th May, 2009, which in turn handed over possession to the beneficiary, that is, the school on 25th May, 2009 itself. Mr. Dutta submitted that the writ petition was liable to be rejected since the writ petitioner had, after publication of the award, applied for reference under Section 18 of the Land Acquisition Act. A copy of the application has also been annexed to the Affidavit-in-Opposition. The said application for reference was forwarded by the Land Acquisition Collector to the Designated Judge of Alipore Court for adjudication. Mr. A copy of the application has also been annexed to the Affidavit-in-Opposition. The said application for reference was forwarded by the Land Acquisition Collector to the Designated Judge of Alipore Court for adjudication. Mr. Dutta submitted that having sought a reference under Section 18, it was not open to Gojer Brothers to question the acquisition. In support of his submission, Mr. Dutta cited a judgment of the Division Bench of this Court in Bengal Peerless Housing Development Co. Ltd. vs. Urmila Roy & Ors. reported in (2007) 2 CLJ 508 Cal. It is true that in this case, the writ petition was filed before the award was made. However, by reason of the subsequent development of the award having been made and published and Gojer Brothers having sought a reference, the writ petitions have become infructuous. Acquisition for the purpose of running a school is acquisition for a public purpose, as submitted by Mr. Dutta. It is also well-settled that once owners or persons in occupation seek reference under Section 18 of the Land Acquisition Act, it is no longer open to them to question the acquisition. This proposition finds support from Bengal Peerless Housing Development Co. Ltd. (supra). The judgment of the Supreme Court in Government of Andhra Pradesh vs. Kollutla Reddy & Ors. reported in AIR 2006 SC 642 , cited by Mr. Dutta, may be distinguishable on facts, in that the writ petitions had been filed after delay, while reference under Section 18 was pending. However, as observed above, once a reference is made, the petitioner cannot object to the acquisition. The issues in this case are, in my view, squarely covered by the judgment of the Supreme Court in Goverdhanlal Pitty (supra). It would make little difference that in the case of Goverdhanlal Pitty (supra) the State itself was the tenant. On the other hand, this case stands on a better footing. In Goverdhanlal Pitty’s case (supra) there was an undertaking to vacate. There was, however no such undertaking in this case. Mr. Dutta submitted that when power had been exercised under Section 4(1) for a public purpose and the public purpose was mentioned therein, the existence of the public purpose was not open to public scrutiny. In support of the aforesaid submission, Mr. Dutta cited the judgment of the Supreme Court in Bajirao T. Kote (Dead) By LRS. & Anr. Vs. Mr. Dutta submitted that when power had been exercised under Section 4(1) for a public purpose and the public purpose was mentioned therein, the existence of the public purpose was not open to public scrutiny. In support of the aforesaid submission, Mr. Dutta cited the judgment of the Supreme Court in Bajirao T. Kote (Dead) By LRS. & Anr. Vs. State of Maharashtra & Ors. reported in (1995) 2 SCC 442 . In Bajirao T. Kote (Dead) By LRS. & Anr. (supra), cited by Mr. Dutta, the Supreme Court held that the satisfaction of State Government regarding existence of ‘public purpose’ was not open to judicial scrutiny, unless the same was mala fide or in colourable exercise of power. As observed above, running a school is definitely a public purpose. The acquisition being for the purpose of running of the school, it cannot be said that there has been mala fide or colourable exercise of power. Mr. Dutta referred to the judgment of the Supreme Court in Balmokand Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab & Ors. reported in (1996) 4 SCC 212 and submitted that invocation of urgency clause and dispensation of enquiry under Section 5A was not bad when there was urgency, as in this case. In this case, however, Section 5A was not dispensed with. Mr. Dutta cited Ishwaral vs. State of Gujarat reported in AIR 1968 SC 870 where the Supreme Court held that the validity of a notification under Section 6 of the Land Acquisition Act of the State of Gujarat, declaring that the acquisition of certain lands was urgently necessary for a public purpose, could not be questioned on the ground, amongst others, that there was no formation of opinion by the Government as regards urgency, without alleging definite facts. As held in Goverdhanlal Pitty (supra), the right of acquisition under the Land Acquisition Act, 1894 can be exercised notwithstanding a decree of eviction and notwithstanding an undertaking to vacate the premises in question. This Court holds that the right of acquisition might even be exercised even if the petitioner had repossessed the acquired land at any stage. This view finds support from the judgment of the Supreme Court in Sita Ram Bhandar Society, New Delhi vs. Lt. Governor, Government of NCT, Delhi & Ors. reported in (2009) 10 SCC 501 . This Court holds that the right of acquisition might even be exercised even if the petitioner had repossessed the acquired land at any stage. This view finds support from the judgment of the Supreme Court in Sita Ram Bhandar Society, New Delhi vs. Lt. Governor, Government of NCT, Delhi & Ors. reported in (2009) 10 SCC 501 . For the reasons discussed above, the writ petitions fail and the same are dismissed. Status quo for a period of four weeks as prayed for by Mr. Mukherjee, appearing on behalf of the petitioners. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the learned Advocates appearing for the parties, subject to compliance with the requisite formalities.