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.

1. This petition is directed against a judgment and order dated 20th

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

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.

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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.   

5. From the order dated 26th 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

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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

his order dated 22nd 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

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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-

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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

the order dated 14th 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

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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

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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

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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.

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………………………….J. [S.B. Sinha]

..…………………………J. [Dr. Mukundakam Sharma ]

New Delhi; May 16, 2008

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