REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.  10878  OF 2011 [Arising out of Special Leave Petition (Civil) No.3654 of 2010]

M/S. KAMAL TRADING PRIVATE LIMITED (NOW KNOWN AS MANAV INVESTMENT & TRADING CO. LTD.) …

APPELLANT

Versus

STATE OF WEST BENGAL & ORS. … RESPONDENTS

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. This  appeal,  by  grant  of  special  leave,  is  directed  

against the judgment and order dated 19/8/2009 passed by

the High Court at Calcutta dismissing the appeal filed by the  

appellant.  

3. The appellant, which is a private limited company was  

entrusted by seventeen joint owners of the premises known  

as “Industry House” at No.10, Camac Street, Calcutta – 700  

017 (for short, ”the said premises”), to look after the day-

to-day management and maintenance of the said premises  

as also to initiate proceedings for and on their behalf.  The  

seventeen  joint  owners  include  respondents  6,  7  and  8  

herein and one Pilani Investment (hereinafter referred to as  

“owner companies” for convenience).  They are seized and  

possessed of certain floors of the said premises.  The State  

of  West  Bengal  requisitioned  the  said  floors  under  the  

provisions  of  the  West  Bengal  Premises  Requisition  and  

Control  (Temporary  Provision)  Act,  1947  (for  short,  “the  

1947 Act”).  Under the 1947 Act, the maximum period of  

requisition  was  fixed  at  25  years  from the  date  of  initial  

order of requisition and the State Government was obliged  

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to release the property under requisition after expiry of 25  

years.   It  is  the  case  of  the  appellant  that,  in  fact,  the  

release  of  the  said  floors  was  in  contemplation  of  the  

concerned  authorities.   However,  enquiries  made  by  the  

appellant revealed that the State Government was planning  

to acquire the said premises in exercise of its powers under  

the Land Acquisition Act,  1894 (for  short,  “the LA Act”).  

The appellant along with owner companies, therefore, filed  

Writ  Petition No.22859 (W) of  1997 praying for  a  writ  of  

mandamus directing the State to release the said floors from  

requisition.  

4. Instead of releasing the said floors from requisition, the  

State  Government  issued  a  notification  dated  29/7/1997  

under Section 4 of the LA Act stating, inter alia, that the said  

floors are needed for the public purpose viz. for permanent  

office accommodation of Public Works Department.  The said  

notification  was  published  in  the  Government  Gazette  on  

12/8/1997.  It is the case of the appellant that the owner  

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companies  raised  objections  vide  letter  dated  8/9/1997  

under  Section  5A  of  the  LA  Act.   The  Second  Land  

Acquisition Officer issued notice dated 23/9/1997 fixing date  

of hearing of the objections on 26/9/1997.  On receipt of the  

said  notice,  the  representative  of  the  appellant  met  the  

Second  Land  Acquisition  Collector  on  25/9/1997  and  by  

letter  of  even  date,  requested  that  the  hearing  fixed  on  

26/9/1997 be  postponed till  after  29/9/1997 because the  

Constituted Attorney of the appellant was held up in Mumbai  

and was unable to attend the hearing.  The Second Land  

Acquisition Collector issued another notice dated 26/9/1997  

fixing the date of hearing of the objections on 30/9/1997.  

By letter dated 29/9/1997, the appellant again requested for  

adjournment  till  after  28/10/1997  on  the  ground  that  its  

Constituted Attorney was unable to attend and the advocate  

was out of station.  According to the appellant, while they  

were waiting for further communication about the date of  

hearing, the State Government issued a declaration dated  

24/10/1997  under  Section  6  of  the  LA  Act,  which  was  

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published  in  the  Gazette  on  29/10/1997.   In  the  said  

declaration, it was stated that the Government was satisfied  

that the said floors were needed for the public purpose.  The  

Special  Land  Acquisition  Officer  did  not  accept  the  

appellant’s request for further adjournment and proceeded  

to submit report dated 30/9/1997.

5. The appellants  along with the owner  companies  filed  

Writ Petition No.25632(W) of 1997 and prayed for quashing  

notifications dated 29/7/1997.  One of the grounds taken by  

them was  that  the  report  submitted  by the  Second Land  

Acquisition Officer was vitiated due to violation of the rule of  

hearing enshrined in Section 5A(2) of the LA Act and non  

application  of  mind  by  the  concerned  officer  to  the  

objections filed under Section 5A(1) of the LA Act.

6. By an order dated 3/12/2003, the learned Single Judge  

dismissed both the writ petitions.  FMA No.40 of 2004 filed  

by  the  appellant  against  dismissal  of  Writ  Petition  

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No.25632(W) of 1997 was dismissed by the Division Bench.  

Hence, this appeal by special leave.

7. We  have  heard  Dr.  Singhvi,  learned  senior  counsel  

appearing  for  the  appellant  and  Mr.  Chaudhari,  learned  

senior counsel appearing for the contesting respondents, at  

some  length.   Though  several  points  are  raised  in  this  

appeal, Dr. Singhvi addressed us on violation of Section 5A  

of the LA Act as according to him, this point goes to the root  

of the matter.   

8. Dr. Singhvi submitted that hearing contemplated under  

Section 5A of  the  LA Act  is  not  an empty formality.   He  

submitted that the said right has been raised to the level of  

a fundamental right by this Court.  Learned senior counsel  

argued that the acquisition of the land is a serious matter  

and  when  the  State  decides  to  deprive  a  person  of  his  

property by taking recourse to LA Act, it is bound to afford  

him an opportunity to file objections under Section 5A(1) of  

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the LA Act and of being heard by the Collector in terms of  

Section 5A(2) of the LA Act.  Learned senior counsel then  

submitted that the Second Land Acquisition Officer wrongly  

rejected  the  genuine  prayer  made  by  the  appellant  vide  

letter  29/9/1997 for  adjournment  on the ground that  the  

counsel  was  out  of  station.   He  argued  that  even  if  the  

concerned officer was not inclined to adjourn the case, he  

was  duty  bound to  consider  the  objections  raised  by the  

appellant with necessary seriousness and decide the same  

by assigning reasons.  Dr. Singhvi submitted that although  

the report of the Second Land Acquisition Officer makes a  

mention of the objections raised by the appellant, but the  

same have not at all been dealt with and, thus, the report  

made  by  the  Second  Land  Acquisition  Officer,  which  

contained  recommendations  for  the  acquisition  of  land  

suffers from the vice of non application of mind.  In support  

of his submissions, Dr. Singhvi relied upon the judgments of  

this  Court  in  Union  of  India   v.   Mukesh  Hans  1  ,    

1 (2004) 8 SCC 14

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Hindustan  Petroleum  Corporation  Ltd.   v.   Darius  

Shapur Chenai & Ors.  2  ,  Dev Saran v.  State of Uttar    

Pradesh  3  , Radhy Shyam V. State of Uttar Pradesh  4  .

9. Mr.  Chaudhary,  learned  senior  counsel  for  the  

respondents argued that the Second Land Acquisition Officer  

did  not  commit  any  illegality  by  declining  the  appellant’s  

request  for  adjournment  because  the  sole  object  of  such  

request  was  to  delay  finalization  of  the  acquisition  

proceedings.  Learned senior counsel emphasized that if the  

counsel for the appellant was not available on 30/9/1997,  

i.e.,  the date to which the hearing was adjourned by the  

Second Land Acquisition Officer, the appellant should have  

made alternative arrangement and the concerned officer did  

not commit any error by declining the repeated request for  

adjournment  made  on  its  behalf.   Mr.  Chaudhary  then  

submitted  that  the  report  submitted  by  the  Special  Land  

Acquisition  Officer  does  not  suffer  from  the  vice  of  non  

2 (2005) 7 SCC 627 3 (2011) 4 SCC 769 4 (2011) 5 SCC 553

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application  of  mind  because  he  had  duly  considered  the  

objections  raised  by  the  appellant.   In  support  of  his  

argument,  he  relied  upon  the  judgment  of  this  Court  in  

Jayabheri Properties Private Limited & Ors.  v.  State  

of  Andhra  Pradesh & Ors.  5   where  according  to  him,  a  

similar  contention  raised  by  the  appellants  therein  was  

rejected on the ground that adequate opportunity had been  

given  to  the  appellants  to  voice  their  objections  and  the  

objections  were  duly  considered  by  the  Special  Deputy  

Collector.  Counsel submitted that in the circumstances, the  

appeal may be dismissed.  

10. Section 5A(1) of the LA Act gives a right to any person  

interested in any land which has been notified under Section  

4(1)  as being needed or  likely  to be needed for  a  public  

purpose  to  raise  objections  to  the  acquisition  of  the  said  

land.  Sub-section (2) of Section 5A requires the Collector to  

give the objector an opportunity of being heard in person or  

by  any  person  authorized  by  him  in  this  behalf.   After  5 (2010) 5 SCC 590

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hearing  the  objections,  the  Collector  can,  if  he  thinks  it  

necessary,  make  further  inquiry.   Thereafter,  he  has  to  

make a report to the appropriate Government containing his  

recommendations on the objections together with the record  

of  the  proceedings  held  by  him  for  the  decision  of  the  

appropriate Government and the decision of the appropriate  

Government  on  the  objections  shall  be  final.  It  must  be  

borne in mind that the proceedings under the LA Act are  

based on the principle of eminent domain and Section 5A is  

the only protection available to a person whose lands are  

sought to be acquired.  It is a minimal safeguard afforded to  

him by law to protect himself from arbitrary acquisition by  

pointing out to the concerned authority, inter alia, that the  

important ingredient namely ‘public purpose’ is absent in the  

proposed acquisition or the acquisition is mala fide.  The LA  

Act  being  an  ex-proprietary  legislation,  its  provisions  will  

have to be strictly construed.  

11. Hearing contemplated under Section 5A(2) is necessary  

to enable the Collector to deal effectively with the objections  

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raised against the proposed acquisition and make a report.  

The report of the Collector referred to in this provision is not  

an empty formality because it is required to be placed before  

the  appropriate  Government  together  with  the  Collector’s  

recommendations  and  the  record  of  the  case.   It  is  only  

upon receipt  of  the  said  report  that  the  Government  can  

take a final decision on the objections. It is pertinent to note  

that declaration under Section 6 has to be made only after  

the appropriate Government is satisfied on the consideration  

of the report, if any, made by the Collector under Section  

5A(2).   As  said  by  this  Court  in  Hindustan  Petroleum  

Limited,  the  appropriate  Government  while  issuing  

declaration under Section 6 of the LA Act is required to apply  

its mind not only to the objections filed by the owner of the  

land in question, but also to the report which is submitted by  

the Collector upon making such further inquiry thereon as he  

thinks  necessary  and also  the recommendations  made by  

him in that behalf.  Sub-section (3) of Section 6 of the LA  

Act makes a declaration under Section 6 conclusive evidence  

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that the land is needed for a public purpose.   Formation of  

opinion by the appropriate Government as regards the public  

purpose must be preceded by application of mind as regards  

consideration of relevant factors and rejection of irrelevant  

ones.  It is, therefore, that the hearing contemplated under  

Section  5A  and  the  report  made  by  the  Land  Acquisition  

Officer and his recommendations assume importance.  It is  

implicit  in  this  provision  that  before  making  declaration  

under Section 6 of the LA Act, the State Government must  

have the benefit of a report containing recommendations of  

the Collector submitted under Section 5A(2) of the LA Act.  

The recommendations must indicate objective application of  

mind.   

12. We may make a brief reference to the judgments on  

which  reliance  has  been  placed  by  Dr.  Singhvi,  which  

support the view taken by us.  

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13. In Munshi Singh v.  Union of India  6  , this Court while  

dealing with Section 5A of the LA Act observed as under :

“7. Section 5-A embodies  a very just  and  wholesome  principle  that  a  person  whose  property  is  being  or  is  intended  to  be  acquired  should  have  a  proper  and  reasonable  opportunity  of  persuading  the  authorities concerned that acquisition of the  property belonging to that person should not  be made. …  The legislature has, therefore,  made  complete  provisions  for  the  persons  interested  to  file  objections  against  the  proposed acquisition and for the disposal of  their  objections.   It  is  only  in  cases  of   urgency  that  special  powers  have  been  conferred on the appropriate Government to  dispense with the provisions of Section 5-A.”

14. In Om Prakash v.  State of Uttar Pradesh  7  , referring  

to its  earlier  judgment in  State of Punjab  v.   Gurdial  

Singh  8  , this Court raised the right under Section 5A of the  

LA Act to the level of fundamental right and observed that  

inquiry under Section 5A is not merely statutory but also has  

a flavour of fundamental rights under Articles 14 and 19 of  

6 (1973) 2 SCC 337 7 (1998) 6 SCC 1 8 (1980) 2 SCC 471

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the Constitution though right to property has now no longer  

remained  a  fundamental  right,  at  least,  observation  

regarding Article 14 vis-à-vis Section 5A of the LA Act would  

remain apposite.  

15. In  Mukesh Hans,  this  Court  reiterated  that  right  of  

representation and hearing contemplated under Section 5A  

is a very valuable right of a person whose property is sought  

to  be  acquired  and  he  should  have  appropriate  and  

reasonable  opportunity  of  persuading  the  concerned  

authorities that the acquisition of the property belonging to  

that person should not be made.  This court further held that  

the right given to an owner/person interested under Section  

5A to object to the acquisition proceedings is not an empty  

formality and is a substantive right which can be taken away  

for  good  and  valid  reason  and  within  the  limitations  

prescribed under Section 17(4) of the LA Act.  

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16. In  Hindustan  Petroleum  Corporation,  this  Court  

again referred to Om Prakash and observed that it is trite  

that hearing given to a person must be an effective one and  

not a mere formality.  This Court observed that formation of  

opinion  as  regards  the  public  purpose  as  also  suitability  

thereof must be preceded by application of mind as regards  

consideration of relevant factors and rejection of irrelevant  

ones.   This  Court  further  observed  that  the  State  in  its  

decision-making process must not commit any misdirection  

in law.  This Court observed that it cannot be disputed that  

Section 5A of the LA Act confers a valuable important right  

and having regard to the provisions contained in Article 300-

A  of  the  Constitution,  it  has  been  held  to  be  akin  to  a  

fundamental right.  Pertinently, this Court made it clear that  

in  a  case  where  there  has  been  total  non-compliance  or  

substantial non-compliance with the provisions of Section 5A  

of the LA Act, the Court cannot fold its hands and refuse to  

grant relief to the appellant.  Again in Dev Saran, this Court  

reiterated the same view.  

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17. In  Radhy Shyam, this Court was considering a case  

where the State had invoked urgency clause under Section  

17(4) and dispensed with inquiry under Section 5A.  This  

Court  observed  that  the  legislation  which  provides  for  

compulsory acquisition of the private property by the State  

falls in the category of ex-propriatory legislation and such  

legislation  must  be construed  strictly.   The  property  of  a  

citizen cannot be acquired by the State without complying  

with the mandate of Sections, 4, 5A and 6 of the LA Act.   

18. The  decision  of  this  Court  in  Jayabheri on  which  

counsel for the respondent has placed reliance does not take  

any contrary view.  The Court had adverted to the facts of  

that  case  and  concluded  that  there  was  no  violation  of  

Section 5A of the LA Act.

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19. According to the appellant, notification under Section 4  

of  the  LA  Act  was  not  served  on  owner  companies.  

However,  upon  coming  to  know  of  this  notification,  the  

appellant  vide  their  letter  dated  8/9/1997  submitted  

objections running into four pages containing 8 paragraphs.  

We have  already  noted  that  the  Second  Land  Acquisition  

Officer adjourned the hearing on one occasion as requested  

by  the  appellant.   He,  however,  refused  to  adjourn  the  

matter any further.  The second request was rejected. We  

feel that looking to the nature of the issues involved, the  

Second Land Acquisition Officer  could  have adjourned the  

proceedings  after  putting  the  appellant  to  terms  because  

hearing  the  representative  of  the  owner  companies  was  

mandatory.  In any event, if he did not want to adjourn the  

proceedings and wanted to consider  the objections  in the  

absence of counsel for the owner companies and assuming  

such a course is permissible in law, he should have dealt  

with the objections carefully and not in such a lighthearted  

manner  because  heavy  responsibility  rested  on  his  

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shoulders.   In the report,  he has noted the objections as  

under:

“(i) Notification U/S 4 has not been published  in the Newspapers nor publicly notified.  

(ii) Premise is under requisition under the W  Bengal  Premises  Requisition  &  Control   (Temporary  Provisions)  Act,  1947  from  16/09/72  and  is  about  to  complete  25  years on 15/09/97 when as per the Law  release of the premises is expected.  

(iii) Anticipating impending release, tie-up has  been  made  to  accommodate  foreign  ventures/industrialists.  

(iv) LA Collector has shown colourful authority   by extending this acquisition proceeding.”  

20. He has then noted that  the officers  of  the Acquiring  

Body vehemently protested against the statements made in  

the appellant’s letter and stated that the said statements are  

false, arbitrary and groundless and they simply endeavour to  

oust  the  Acquiring  Body  by  hook  or  by  crook.   The  

paragraphs which contain the submissions and the so-called  

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reasons of the Second Land Acquisition Officer need to be  

quoted.  

“Heard  the  officers  present  from  the  Requiring  Body.   They  vehemently  protested  as  regards  the  statements  contained  in  this  particular  letter.   Their  submissions  in  short  that  the  statements  made by the interested persons are all fake,  arbitrary  and  groundless.   They  simply  endeavour  to  oust  the  Requiring  Body by  hook or  crook in order  to grab this  office  space  so  that  in  turn  can  realize  higher  rent.  Further, the purpose of the Requiring  Body is very much public oriented and if it   is  no acquired they will  suffer  immensely.  They  further  submitted  that  acquisition  proceeding  to be completed as  quickly  as  possible  inasmuch  as  they  have  the  time  bound programmes to implement it as per  guidelines  of  Government  for  the  greater  interest of public.

In  view  of  these  circumstances  and  for  greater  interest  of  the  public,  the  submissions  made  by  the  interested  persons by their letter dated 8/9/1997 are  overruled.”  

21. By no stretch of imagination, it  can be said that the  

Second Land Acquisition Officer had applied his mind to the  

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objections  raised  by  the  appellant.   The  above-quoted  

paragraphs are bereft of any recommendations.  The Second  

Land Acquisition Officer has only reproduced the contentions  

of the officers of the Acquiring Body.  The objections taken  

by  the  appellants  are  rejected  on  a  very  vague  ground.  

Mere use of  the words  ‘for  the greater  interest  of  public’  

does not lend the report the character of a report made after  

application of mind.  Though in our opinion, the declaration  

under Section 6 of the LA Act must be set aside because the  

appellant  was  not  given  hearing  as  contemplated  under  

Section  5A(2)  of  the  LA  Act,  which  is  the  appellant’s  

substantive right, we must record that in the facts of this  

case, we are totally dissatisfied with the report submitted by  

the Second Land Acquisition Officer.   His report  is  utterly  

laconic  and  bereft  of  any  recommendations.  He  was  not  

expected to write a detailed report but, his report, however  

brief, should have reflected application of mind.  Needless to  

say that as to which report made under Section 5A(2) could  

be  said  to  be  a  report  disclosing  application  of  mind  will  

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depend on the facts and circumstances of each case.  

22. Having examined this case, in the light of the law laid  

down by this  Court,  we are  of  the opinion  that  the High  

Court wrongly  rejected the prayer  made by the  appellant  

that the notification under Section 4 and declaration under  

Section  6  of  the  LA Act  be quashed and set  aside.   The  

impugned judgment and order of the High Court, therefore,  

needs to be set aside and is, accordingly, set aside.   Since  

no  hearing  was  given  to  the  appellant  resulting  in  non  

compliance  of  Section  5A  of  the  LA  Act,  the  declaration  

under Section 6 of the LA Act dated 24/10/1997 published in  

the Government Gazette on 29/10/1997 must be set aside  

and is set aside.  In view of the judgment of the Constitution  

Bench of this Court in Padma Sundara Rao (Dead) & Ors  

v.  State of T.N. & Ors  9  , the State Government cannot now  

rely upon notification dated 29/7/1997 for the purposes of  

issuing fresh declaration under Section 6(1) of the LA Act.  

The said notification dated 29/7/1997 issued under Section  9 (2002) 3 SCC 533

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4 is also, therefore, set aside.   It would be, however, open  

to the  State  Government  to initiate  fresh land acquisition  

proceedings in accordance with law if it so desires.

23. We  make  it  clear  that  nothing  said  by  us  in  this  

judgment should be treated as expression of our opinion on  

the merits of the case of either side.

24. The appeal is disposed of in the aforestated terms.  

……………………………………………..J. (G.S. SINGHVI)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, DECEMBER 13, 2011.

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