Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APEPAL NO. _3638 of 2008
(Arising out of SLP (C) No. 2904 of 2007)
Illa Roy Chowdhury ….. Appellant
Versus
Shyamali Das and others ….. Respondents
J U D G M E N T
S.B. SINHA, J.
Leave granted.
th
1. This petition is directed against a judgment and order dated 20
December, 2006 passed by the High Court of Calcutta in Writ Petition
No. 27264 of 2006.
By reason of the said order the High Court directed the respondent
Nos. 1 and 2 as also the other concerned respondents, added therein to
dispose of the First Respondent’s application for reference in terms of
2
Sections 30 and 31 of the Land Acquisition Act, 1894 (hereinafter
referred to as ‘the Act’).
2. The matter relates to a property acquired under the said Act. A
reference was made by the Collector in terms of the provisions thereof.
First Respondent intended to be impleaded as the party therein. The
same was rejected.
3. Contesting parties herein claimed themselves to be the heirs and
legal representatives of Rani Rashmoni. We need not state the facts of
the matter in detail as the same has been noticed by a Bench of this Court
in Shyamali Das v. Illa Chowdhry, (2006) 12 SCC 300.
One of the questions which arose for consideration therein was as
to whether the First Respondent, in terms of an observation made by
another learned Single of the High Court, had filed an application for
reference under Sections 30 and 31 of the said Act. It was noticed
therein that such an application had not been filed. It was furthermore
observed:-
“21. It is one thing to say that a proceeding
under Sections 30 and 31 of the Act was
maintainable at the instance of the appellant.
3
She was given an opportunity to file the same
by the Calcutta High Court in terms of its order
dated 22-9-2000. She did not avail the said
opportunity. Having not availed the
opportunity, in our opinion, she was not
entitled to be impleaded as a party.”
4. We would notice some of the orders passed by the Courts in the
earlier rounds of litigation.
th
5. From the order dated 26 September, 2005 passed in C.O. No.3447
of 2005 by a learned Single Judge of the High Court it appears that a
question arose as to whether such an application had been filed or not.
The said order reads as under:-
“ Put up the matter on Friday (30.9.2005)
under the heading ‘For Orders’ before Listed
Motion in the supplementary list.
Mr. Subroto Mukhopadhyay, Ld.
Advocate appears for the opposite party no.3.
Mr. Mukhopadhyay is requested to obtain
instruction from his client as to whether the
opposite parties no. 1 and 2 have filed any
application under sections 30 and 33 of the
Land Acquisition Act.
Smt. Shyamali Das, the opposite party
No.1 appears in person. She informs this Court
that on the next date the opposite party no.2,
who is her son, shall also appear in person.
The requiring authority, viz. West Bengal
Housing Board may hand over the cheque to
4
the Collector and the Collected is directed to
retain the cheque for the present.”
6. In Writ Petition No. 19298 of 2000- filed by the First Respondent
a learned Single Judge of the High Court while disposing of the same by
nd
his order dated 22 September, 2000 directed :-
“This Court sitting in writ jurisdiction cannot
determine the entitlement to the compensation
awarded. Therefore, if the petitioner is
aggrieved, it is open to her to apply before the
Collector for reference under Section 30 read
with Section 31 of the Land Acquisition Act if
she is so advised. Section 30 does not postulate
any time-limit and as such it can be made at any
point of time and if such application is made,
the Collector may decide the same and pass
appropriate order on the said application in
accordance with law. I (sic) necessary, by
making reference under the provision of
Section 30 and may also resort to Section 31 if
he is so advised according to his own wisdom
and discretion after having examined the
dispute raised that there are prima facie
disputes existing which required to be
examined. In such circumstances, the Collector
is not entitled to adjudicate the dispute which is
the subject-matter of adjudication by a court; it
is only to say that there is no prima facie case
raising any dispute and if prima facie case
exists then he has to make the reference under
Section 30 read with Section 31. This decision
is to be taken before further disbursement is
made. The Collector will also hear the other no
appear (sic) the respondents whom the
petitioner will serve a copy of this order along
with a copy of the writ petition within a period
5
of one week from date; in default, this order
will stand recalled.”
7. In the aforementioned premise, the contesting respondents herein
filed a writ petition before the Calcutta High Court which was registered
as Writ Petition No.27264 of 2006 resulting in passing of the impugned
judgment.
8. Mr. Bijan Kumar Ghosh, learned counsel appearing on behalf of
the appellant submits that the impugned judgment cannot be sustained as
it was found by this Court that no such application had been filed.
9. Mr. Chinomy A. Kaladkhar, learned counsel appearing on behalf
of respondents 1 to 3, on the other hand, contends that filing of such an
application is not disputed and in that view of the matter the High Court
cannot be said to have committed any error in passing the impugned
judgment.
10. Mr. Tara Chandra Sharma, learned counsel appearing on behalf of
the State of West Bengal, however, brought to our notice that although
such an application had, in fact, been filed, but, in view of the non-
6
compliance of the order passed by the learned Single Judge, no order
could be passed thereupon.
11. Before this Court in the aforesaid appeal a contention was raised
that no such application was filed. It was in the aforementioned situation
the abovesaid observations were made.
12. A review application was filed thereagainst which, by reason of
th
the order dated 14 December, 2006 was dismissed (although allegedly
the said fact was also brought to the notice of this Court), stating:-
“ We have gone through the review
petition and the relevant documents. In our
opinion no case for review is made out. The
review petition is accordingly dismissed.”
It, therefore, appears that this Court had, inter alia, proceeded on
the basis that no such application had been filed. First Respondent,
however, in her affidavit stated that such an application had been filed.
Respondent Nos. 4 to 7 herein, however, in their counter-affidavit stated
as under :-
“16. Thereafter Smt. Shyamali Das,
Respondent no.1 submitted an application to
the District Magistrate, South 24-Parganas on
8.8.2001 stated to be the Application under
7
section 30 read with section 31 of the Land
Acquisition Act, 1894 without any document of
ownership of the said land. No where in the
said Application she mentioned Plot No.1028
of Mouja Rajapur to be her own against which
award was declared. Even she had not
submitted any proof of service of writ petition
and copy of order dated 22.9.2000 to other non-
appearing respondents as per order dated
22.9.2000 of Hon’ble Single Judge of the High
Court at Calcutta.
17. After receiving the Application dated
8.8.2001 of Smt. Shyamali Das – Respondent
No.1, she was once again asked by Special
Land Acquisition Officer, South 24-Paraganas
vide Memo No. W.P. No. 19298(W)/2000 L.A.
1957 dated 23.8.2001 to submit the Land
Schedule i.e. name of Mauja, Plot No., Khatian
No., Area of the plots with deails of acquisition
alongwith documents in respect of title within
15 days from the date of receipt of the said
letter so that Hon’ble Court’s order can be
complied with. This letter was received by
Smt. Shyamali Das – Respondent No.1 on
24.8.2001 under her own signature.
18. As Smt. Shyamali Das – Respodnent
no.1 had not submitted any document in
support of her claim in her application dated
8.8.2001 as asked for vide eltter dated
23.8.2001 abovementioend by the Special Land
Acquisition Officer, South-24 Parganas, no
further action could be taken on her application
by the Collector, South 24-Parganas, Alipore.
19. On the other hand, as per order dated
22.9.2000 of Hon’ble Single Judge of the High
Court at Calcutta dated 22.9.2000, she could
not produce any proof of service of copy of
W.P. No. 19298 (W) of 2000 and copy of order
dated 22.9.2000 to other non-appearing
8
respondents within 7 days from the date of
order i.e. 22.9.2000. Therefore, the order dated
22.9.2000 stood automatically recalled, as
directed in the said order.”
13. We will, therefore, proceed on the assumption that such an
application indeed had been filed, and the contention made before us in
the earlier round of litigation was wrong.
14. The question, however, which arises for consideration is what
would be the effect of the order of the Calcutta High Court allowing the
First Respondent to file an appropriate application before the Collector
for reference in terms of Sections 30 and 31 of the Act which was a
conditional order. It was found as of fact that the conditions precedents
therefor were not satisfied.
The consequence laid down in the said order, therefore, ensued, in
terms whereof it stood recalled. If that be so, the order of the High Court
directing to dispose of the application being innocuous was not required
to be given effect to. If a conditional order was passed, with a view to
derive a benefit thereunder, it was obligatory on the part of the
respondent to satisfy the condition precedent therefor. If the condition
9
precedent has not been satisfied, the question of taking advantage thereof
would not arise.
15. In this case, as noticed hereinbefore an attempt on the part of the
First Respondent to get herself impleaded as party in the Reference
Petition did not fructify. The said order attained finality. It does not
appear that the said respondent was not sure as to whether such an
application had been filed or not. In the judgment of this Court, it will be
a bare repetition to say, that a concession has been recorded. We need
not go into the effect of such a concession as it now transpires that the
same was wrongly made.
16. We would not have, therefore, interfered with the impugned
judgment despite the concession made before us but keeping in view the
statement made by the State of West Bengal, we are of the opinion that
no fruitful purpose would be served in allowing the matter to proceed
pursuant to the observations made by the learned Single Judge.
17. For the reasons abovesaid, the impugned judgment is set aside.
This appeal is allowed. In the facts and circumstances of the case, there
shall be no order as to costs.
10
………………………….J.
[S.B. Sinha]
..…………………………J.
[Dr. Mukundakam Sharma ]
New Delhi;
May 16, 2008