JAYANTA KUMAR BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this Rule, a Notification under Section 4 of the Land Acquisition Act, 1894 bearing the date of publication as on May 28, 1979 in the Calcutta Gazette (Extraordinary) issued by the Government of West Bengal, Land Utilisation and Land Reforms and Land Revenue Department in respect of premises No. 4 Middleton Row, Calcutta, measuring more or less 2894 of a hectare (.7076 of an acre) is under challenge. The petitioner contends that respondent No. 7, Dr. Graham's Homes, Kalimpong, a society registered under the Societies Registration. Act is the owner of the land and building situated at premises No. 4 Middleton Row, Calcutta and the respondent No. 8, Mr. Robert Hamilton Wright was the President and/or Chairman of the said Dr. Graham's Homes at the relevant time and the said Mr. Robert Hamilton Wright represented to the petitioner that he had the authority to conduct the affairs of the respondent Dr. Graham's Homes including negotiations for disposal of its properties and assets The petitioner contends that sometime in of about 1977, certain negotiations took place between the representatives of the respondent Union of India and the sard Dr Graham's Homes regarding purchase of the said premises by the respondent Union of Tndia for the purpose of its Communications Department, but the said negotiations failed. Thereafter, the respondent Dr. Graham's Homes had also negotiated with the Government of West Bengal for the sale of the said property without any substantial result. In or about April, 1978, the petitioner having come to know that the respondent Dr. Graham's Homes was intending to sell all the sard properties, took inspection of the same under a written authority of the said Mr. Robert Hamilton Wright. After the aforesaid inspection the petitioner with intent to purchase the said property, started negotiations with the respondent Mr. Robert Hamilton Wright as the representative of the respondent Dr. Graham's Homes and the said Mr. Robert Hamilton Wright by his letter dated 7th May, 1978 assured the petitioner that he would recommend to the Board of Management of the respondent Dr. Graham's Homes to approve and/or accept the petitioner's offer to purchase' the said property and by letter dated 2nd June, 1978, the respondent Mr. Robert Hamilton Wright acting as the President and Chairman of the said Board confirmed that the Board had agreed to sell the said property to the petitioner and their Advocate had been finalising the draft agreement for sale. At the request of Dr. Graham's Homes and Mr, Robert Hamilton Wright sometime in June 1978 the petitioner agreed to donate a sum of Rs. 3,90,900/- to Or. Graham's Homes and duly communicated the said offer of the petitioner to Mr. Robert Hamilton Wright by a letter dated 9th June, 1978. The said offer for donation was ultimately included in the purchase price as a result of further negotiations and ultimately the petitioner acceded to the request of the respondents Dr. Graham's Homes and Mr. Robert Hamilton Wright to enhance the purchase price to Rs. 36,00,000/-and to pay a sum of Rs. 6,00,000/- by way of earnest money.

(2.) The petitioner further contends that some time between August and October, 1978, various draft agreements for sale were prepared and/or considered by the concerned parties and/or their respective Advocates. Ultimately on the top of one of such draft agreement for sale, Mr. Robert Hamilton Wright on October 3, 1978 made an endorsement in his own hand inter alia to the effect that he had studied the said draft and as far as he was concerned it was in order, but he requested his learned Advocate Mr. S. S. Hazra to have a final check on all points as safeguard to their position. It was also indicated that after that Mr. Sen, the learned Solicitor for the petitioner, would draw up the formal agreement on stamped paper for signature by the next week-end. It appears that the draft agreement drawn up by Mr. Sen was forwarded to Mr, S. S, Hazra, and the said agreement was redrafted by the said learned Advocate and he had also signed and initialled all the four pages thereof. The respondent Mr. Robert Hamilton Wright also made certain corrections in his own hand and at the top of the agreement under his signature on October 8, 1978, fee made an endorsement to the effect "Approved and the Memorandum of Agreement may now be engrossed". The petitioner contends that in the aforesaid circumstances there had been a concluded contract by and between the petitioner and the respondent Dr. Graham's Homes for sale of the said premises. The petitioner contends that Mr. Graham's Homes and Mr. Robert Hamilton Wright were fully aware that the purchase money including the earnest money would be paid by the petitioner under arrangement with Vysya Bank Limited at 37, Colootola Street, Calcutta. The petitioner also finalised the requisite financial agreement with the said Bank and the learned Advocate for the petitioner by his letter addressed to the Chairman of Dr. Graham's Homes asked for clarification of Clause 4 of the finally approved draft agreement for sale regarding the time for possession of the third storey of the building and the two garages and the passages to the third storey mentioned therein. Dr. Graham's Homes by their letter dated 7th Nov., 1978 through their learned Advocate called upon the petitioner to complete the proposed sale by payment of entire consideration money within three days' time and inducted that in default the agreement for sale would stand repudiated. As the said time was not only too short but unreasonable and un-warranted and execution and registration of a conveyance within such a short time was virtually an impossibility, the petitioner gave a reply to the said letter and the learned Advocate of the petitioner under his covering letter dated 28th November, 1978 addressed to the concerned respondents forwarded the Memorandum of Agreement engrossed on stamped paper and also informed that the petitioner was ready to pay by Bank Draft the earnest money of Rs, 6,00,000/-and he could arrange for tile Bank Guarantee for the balance of consideration money, if necessary. But as the petitioner subsequently came to know and/or realised that the respondent Dr. Graham's Homes was intending to resile from the said concluded contract, the petitioner instituted Title Suit No. 2356 of 1978 in the City Civil Court at Calcutta against Dr. Graham's Homes and Mr. Robert Hamilton Wright inter alia praying for specific performance of the contract for sale and other ancillary reliefs as set out in the petition. After filing the said suit, the petitioner also made an application in the said suit for injunction restraining fee defendants from entering into any agreement of sale or transaction of the said property or any portion thereof or from dealing with the same in any manner until the disposal of the said suit. The City Civil Court, Calcutta, issued a notice calling upon the defendants to show cause and also passed an ad interim order of injunction in terms of the prayer. The petitioner contends that at the hearing of the application for temporary injunction the learned Advocate for the respondent Dr. Graham's Homes submitted and/or suggested inter alia that the petitioner should be directed to pay Rs. 6,00,000/- to the defendants therein and furnish Bank Guarantee for the balance sum of Rs. 30,00,000/- or alternatively furnish Bank Guarantee for the entire amount of Rs. 36,00,000/-. The petitioner contends that the petitioner immediately accepted both the said suggestions on behalf of the defendants and even agreed to complete the purchase by 8th Feb., 1979. On the score of getting instructions from Mr. Robert Hamilton Wright who was then out of station, the hearing of the application was adjourned and on the next date of hearing it was also submitted by the Counsel for the defendants that specific instructions could not be obtained as Mr. Hamilton Wright was still out of Calcutta. The petitioner contends that the Vysya Bank by a letter dated 22nd Jan., 1979 recorded its willingness to furnish Bank Guarantee for the entire amount of Rs. 36,00,000/- or to accommodate to the tune of Rs. 36,00,000/-. It appears that subsequently the defendants raised a contention that the City Civil Court had no pecuniary jurisdiction to direct payment of Rs. 36,00,000/- or to direct for furnishing Bank Guarantee for the said sum. Thereafter, the petitioner on legal advice applied for withdrawal of Title Suit in the City Civil Court with liberty to file a fresh suit and the application for withdrawal was allowed. The petitioner thereafter filed the suit in the ordinary original civil jurisdiction of this Court being Suit No. 184 of 1979 for certain reliefs as set out in para 35 of the writ petition. The petitioner also applied for interim order of injunction in the said suit and on 19th March, 1979, this Court passed an interim order as set out in paragraph 37 of the writ petition. After a contested hearing on 12th June, 1979 the said application for injunction was finally disposed of on certain terms as set out in para 38 of the writ petition. The said suit is pending adjudication before this Court. The petitioner contends that after the said order was passed by this Court in final disposal of the said application for injunction, the petitioner was informed on or about 13th June, 1979 that certain purported acquisition proceedings were being sought to be initiated and/or had been initiated in respect of the disputed premises. The learned Advocate of the petitioner thereafter by his letter dated 14th June, 1979 informed the Second Land Acquisition Collector, Calcutta about the said order dated 12th June, 1979 passed by this Court in disposing of the application for temporary injunction and on 18th June, 1979, the Second Land Acquisition Collector received the said letter. It appears that the Second Land Acquisition Collector by his letter dated 25th June, 1979 informed Shri N. C. Mullick, the learned Advocate acting on behalf of the petitioner that a meeting had been arranged on 4th July, 1979 on the subject mentioned in the said letter and requested the learned Advocate of the petitioner to attend the same. By subsequent letter dated 3rd July, 1979 the said Second Land Acquisition Collector informed Sri Mullick that the meeting scheduled to be held on 4th July, 1979 has been adjourned till 18th July, 1979. Thereafter the petitioner along with the said Shri Mullick attended the chamber of the respondent Second Land Acquisition Collector on 18th July, 1979 at the specified time but was informed by the Second Land Acquisition Collector that the meeting had to be adjourned because of the absence of the representatives of respondent Dr. Graham's Homes. Shri Mullick, however, on 18th July, 1979 enquired about the purpose of the said meeting whereupon he was told by the Second Land Acquisition Collector that it had been decided to acquire the said property and that the said Shri Mullick had been invited to attend the meeting because of his aforesaid letter dated 14th June, 1979. The petitioner contends that Sri Mullick also enquired specifically as to whether any notification had been issued or not under Section 4 of the Act whereupon the Second Land Acquisition Collector, informed that no notification under Section 4 had yet been published. The subsequent meeting was however fixed on 2nd August, 1979.

(3.) The petitioner contends that thereafter on 27th July, 1979 the petitioner was surprised to know that a purported notification under Section 4 dated 28th May, 1979 in respect of the said premises was published in the Calcutta Gazette (Extraordinary issue) bearing the date as 28th May, 1979. The petitioner on the same day purchased two copies of such purported Gazette from the Government Press at Alipore. The petitioner thereafter also made appropriate enquiries and came to know that the text of the purported Gazette notification was received by the Publication Department not earlier than 25th July, 1979. It appears from Annexure 'A' to the supplementary affidavit of the petitioner that the Superintendent, West Bengal Govt. Press, informed that the printing of the said notification dated 28th May, 1979 since published in the Calcutta Gazette (Extraordinary) was printed on 18th July, 1979. The binding was made on 21st July, 1979 and the Publication Department received such notification after binding on 25th July, 1979 under Delivery Note No. 23897. The petitioner contends that the said purported acquisition proceeding was mala fide and was made with sole intent to defeat the lawful agreement between the petitioner and the said Dr. Graham's Homes and in any event the Gazette Notification bearing the date as 28th May, 1979 is invalid and of no consequence because, in fact, such Gazette publication was not made in the month of May but long thereafter in July, 1979.