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In the High Court at Calcutta Constitutional Writ Jurisdiction

Appellate Side

W.P. No. 9949 (W) of 2011 With

W.P. No. 10198 (W) of 2011

TATA MOTORS LIMITED AND ANOTHER Versus

STATE OF WEST BENGAL AND OTHERS

For the petitioners : Mr. Samaraditya Pal, Sr. Adv. Mr. Siddhartha Mitra, Sr. Adv. Ms. Vineeta Meharia, Adv. Mr. Soumitra Dutta, Adv. For the respondent Nos. : Mr. Anindya Kumar Mitra, learned 1,3,5,6 & 7 Advocate General Mr. Saktinath Mukherjee, Sr. Adv. Mr. Asoke Banerjee, Ld. Govt. Pleader Mr. Kalyan Kr. Bandyopadhyay, Sr. Adv. Mr. Protik Prokash Banerji, Adv. Mr. Paritosh Sinha, Adv. Mr. Abhratosh Majumdar, Adv. Mr. Sakya Sen, Adv. Mr. Subhobrata Datta, Adv. Mr. Ramanand Agarwal, Adv. Mr. Swagata Datta, Adv. Mr. Mintu Goswami, Adv. Mr. Sandip Chakraborty, Adv. Mr. Sumon Sengupta, Adv. Mr. Debasish Ghosh, Adv. Mr. Ayan Banerjee, Adv. Mr. Arindam Mondal, Adv. Mr. Satrajit Sinha, Adv. Mr. Saikat Chatterji, Adv. Mr. Asish Das, Adv. For the respondent Nos. : Mr. Kalyan Kr. Bandyopadhyay, Sr. Adv. 2 & 4 Mr. Protik Prokash Banerji, Adv. Mr. Abhratosh Majumdar, Adv. Mr. Swagata Datta, Adv.

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Mr. Sirsanya Bandyopadhyay, Adv. For the respondent No. 8 : Mr. G.S. Makkar, Adv. Mr. Raj Sekhar Basu, Adv. For the respondent Nos. : Mr. Asoke Banerjee, Ld. Govt. Pleader 5, 6 & 7 in Mr. Subrata Talukdar, Adv. W.P. No. 10198(W) of 2011 Heard on: 28.07.11, 29.07.11, 01.08.11, 02.08.11, 03.08.11, 04.08.11, 05.08.11, 10.08.11, 11.08.11, 12.08.11, 16.08.11, 17.08.11, 18.08.11, 19.08.11, 24.08.11, 25.08.11, 26.08.11, 30.08.11, 01.09.11, 02.09.11, 05.09.11, 06.09.11, 07.09.11, 08.09.11, 09.09.11, 12.09.11, 13.09.11, 14.09.11, 15.09.11, 16.09.11.

Judgment on: 28th September, 2011

I.P. MUKERJI, J. BACKGROUND FACTS: Two writ applications preferred by Tata Motors Limited (hereinafter referred to as the “Tatas”) were heard by me between 28th July, 2011 and 16th September, 2011, when hearing was concluded. One challenges the constitutionality of the Singur Land Rehabilitation and Development Act, 2011, hereafter “the impugned Act” and the action of the State thereunder; the other, the Singur Land Rehabilitation and Development Rules, 2011, framed under it. The history before institution of this litigation is of paramount importance. I will try to recount the events, which finally led to this contested litigation. In and around 2006, the Government of West Bengal was trying to invite the Tatas to set up an establishment for the manufacture of their conceived ‘small car’ ‘Nano’. The Tatas, it seems to me, were being similarly entreated by some other states in the country, to set up the industry there. One of such states was Uttarakhand. It offered them many incentives and concessions. The Tatas were willing to consider investment in West Bengal provided its government was able to outmatch these benefits. I have no doubt, in my mind, that the government was able to convince them that they would make available to them comparable if not better incentives, concessions and exemptions. The Tatas did decide to manufacture this ‘small car’ here. They announced to the world that the manufactured car would be cleared from the Singur factory in District Hooghly in October, 2008.

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According to records, the government promised them land at this place for setting up this project. More than 1000 acres of land were required. By the end of May, 2006, the government started proceeding in the most expeditious manner to provide this land. The proposal for providing this land was approved by the cabinet in its meeting held on 31st May, 2006. By his letter dated 6th July, 2006, the Joint Secretary to the Government of West Bengal wrote to the West Bengal Industrial Development Corporation (WBIDC), the fourth respondent, the District Magistrate being the fifth respondent and the Land and Land Revenue Department being the third respondent telling them that he was “directed” to ask them to initiate acquisition proceedings. It appears that almost immediately the fifth respondent who was also the Collector issued notices under Section 4 of the Land Acquisition Act, 1894. I have noticed from annexure ‘P2’ that such notice was issued on 13th July, 2006 and notified in the gazette on 19th July, 2006. There are also notices issued subsequently and gazetted thereafter. 0ne was issued on 17th July, 2006, and gazetted on 20th July, 2006, another on 21st July, 2006 and gazetted on the same day, yet another on 24th July, 2006 and gazetted on the same day and so on. I have not been invited to any notice issued after 24th July, 2006, which makes me believe that the Section 4 notices were issued and gazetted between 13th July, 2006 and 24th July, 2006, more or less. Acquisition proceedings were speedily undertaken. 997.11 acres of land were acquired. On 23rd September, 2006 and 25th Septmeber, 2006 awards of compensation were made by the Collector. On 4th October, 2006, this land was “handed over” to the fourth respondent. I am told that it was conveyed to them by the State. This respondent got its name mutated in the land records. 1.75 acres were set apart for setting up a power station and handed over to them on 26th October, 2006. Thereafter, the said respondent applied to the land department for conversion of land from agricultural land to factory land. It was decided by the State that 645.67 acres would be leased out to the Tatas. On 20th December, 2006, the fourth respondent wrote to the Tatas asking them to take “permissive possession of 950 acres of land pending finalization of the lease deed and lease terms and conditions.” The letter also mentioned that this respondent had ‘acquired land’ measuring 997 acres. They proposed to lease out 950 acres of this land to the Tatas and its ‘selected vendors’. The persons who, were to set up auxiliary or ancillary industries around the Tatas factory in Singur were referred to as the ‘vendors’.

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It was recorded in an agreement of 9th March, 2007 between the Tatas and the government that substantial fiscal benefits were promised to be provided to the Tatas, by the state, matching the offer made to them by the State of Uttarakhand. It is very interesting to note that the agreement provided for 47.11 acres of land to be used for rehabilitation of “project affected persons”. According to a counter affidavit affirmed on 24th October, 2008 and filed on behalf of the state in Special Leave Petition (Civil) No. 8463 of 2008, which was a petition before the Supreme Court from the judgment and order of a division bench of this court deciding on the challenge thrown, inter alia, to the acquisition process, by holding the acquisition to be lawful, possession of 997.11 acres was taken by the Collector of Hooghly on 4th October, 2006. It was delivered to the fourth respondent on the same day. It is said that the total compensation payable to land owners was Rs. 118.95 crores. The amount of compensation received by land owners was Rs. 90.87 crores up to 8th April, 2008. The compensation payable to bargadars was Rs.56,62,032/- up to 25th April, 2008. The amount of compensation received by the bargadars was Rs.43,44,286/- up to 8th April, 2008. THE LEASE A formal deed of lease was executed on 15th March, 2007.It was signed on behalf of the fourth respondent by its Managing Director and on behalf of Tatas by Amarjit Singh Puri, described as the authorised signatory. The duration of the lease was ninety years from the date of execution. The lessee had the obligation to build an automobile plant and related facilities on the land. No premium was asked for or paid by the Tatas. The annual rent was rupees one crore per year for the first five years with a 25% increase on the expiry of the period with similar increase every five years for a period of thirty years from the date of execution of the lease. Then there was a provision for further increase. The rent payable from the 61st year till the end of the term was rupees twenty crores annually. As provided in the recital part of the lease 645.67 acres of land were let out. Clause 10 of the covenants disentitled the lessee to permit any other person to use any part of the demised land for any purpose apart from the purpose of the lease which was for setting up of an automobile plant. Clause 13 forbade the lessee to sublease or assign any part of the lease. However, any company which was a subsidiary or part of the group of the lessee would be permitted to enjoy it. The termination clause contained in part VI of the lease is very significant. Clause 1 of part VI, inter alia, provided that if the lessee had not utilised the demised land for a period of three years or more, the lessor had the right to give notice indicating the breach and if such breach was not rectified within six months from the date of receipt of the notice, the lessor would have the right to determine the lease. But such notice of determination could not be exercised unless another notice of three months was served on the lessee. By clause 2 the lessee had also the

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right to determine the lease in case of any breach of covenant by the government upon notice of six months followed by another three months’ notice, similar to the determination by the government. In case of determination the lessee under clause 1d had one year’s time to remove their plant, machinery, equipments and so on. TROUBLE POST EXECUTION OF LEASE: Trouble started not long after execution of the lease. The letter dated 16th July, 2008 from the Police to the General Manager of the Tatas at Singur warned them that their employees should take written permission from the police before going out into the villages adjacent to the site. The Superintendent of Police wrote on 6th August, 2008 to the General Manager of the Tatas at Singur that a decision had been taken to set up 20 camps on an urgent basis within the project site to guard it. There were complaints by the Tatas that their employees were being attacked by local people. Wrongful restraint by the local people, of the employees of Tatas and the vendors, was reported by them to the police. There were also allegations of “confrontation and agitation” by local people. By a letter dated 23rd September, 2008 the Tatas informed the Officer-in-Charge of Singur police station that they had suspended construction and commissioning work at the small project site with effect from 29th August, 2008. Their letter dated 10th October, 2008 to the Director General of police, West Bengal pointed out that because of “intimidating circumstances” they were “compelled to suspend the work”. They stated that because of this they were unable to keep their commitment to complete the manufacture and effect clearance of “Nano Cars” from the Singur Plant by October, 2008 which was their “commitment”. Therefore, they had to relocate the plant. Therefore, they had decided to “move out of Singur” and “to withdraw” from the site. It appears from the annual report of Tata Motors Ltd. from 2008 to 2009 that when shifting started 95% of the work was completed. Some one and half years later on 22nd June, 2010 the fourth respondent wrote to the Tatas, citing another letter of the Tatas dated 31st October, 2008 that they needed ten months’ time to shift their things from the site. It was pointed out to them that they were to utilise the land for manufacture of a small car within three years from the date of lease. Since the period had expired, an enquiry was made by this respondent as to whether they wanted to utilise the land for any other manufacturing activity. This letter was replied to more than three months later on 28th September, 2010 by the Managing Director of India Operations of Tatas as follows:

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“We, therefore, concluded that a peaceful environment could not be created for normal working of the Plant and we had to take the most painful decision to close the operations on 3rd October, 2008. Meanwhile, we also took permission from you to remove our equipment and machinery, which we have now done. We, therefore, have buildings, sheds and infrastructure left behind on which we have invested Rs. 440 crores and of course continue to incur Rs. 1 crore per month towards maintenance. This is in addition to the investment of about Rs. 171 crores (inclusive of Rs. 40 crores for land premium charges) done by our vendors. We would consider an alternative investment in the premises only if we were satisfied that a peaceful and normal condition were to be created for running a manufacturing plant. However, we feel it is not so at this stage. We have also had discussions with Hon’ble Industry Minister as well as with the industry Secretary for finding various alternative uses for this Plant. In this respect, we would like to submit that we could also consider the option of moving out from the premises provided we and our vendors are compensated for the cost of the buildings, sheds on the premises and expenses incurred in developing the infrastructure which remain on the premises.”

It needs to be mentioned that the Tatas removed equipments, machinery and other things from the site in the ten months from 10th October, 2008. Records show that the police ensured safe transit of the items. The “Nano” manufacturing plant was relocated at Sanand, Gujarat. THE ACT AND RULES THEREUNDER: The Act is entitled the Singur Land Rehabilitation and Development Act 2011 (hereinafter “the impugned Act”). It has a Preamble. It is in the following terms:

“An Act to provide for taking over of the land covered by the lease granted to Tata Motors Limited for the sole purpose of Small Car Manufacturing project and letters of allotment issued to the Vendors as recommended by Tata Motors Limited in view of non-commissioning and abandoning Small Car Project and ancillary

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factories with a view to returning such portion of land to the unwilling owners thereof, who have not accepted compensation and to utilize the balance portion in public interest and for the benefit of the State.”

The Preamble is followed by a long title. It is in the following terms:

“WHEREAS it is expedient to provide for taking over of the land covered by the lease granted to Tata Motors Limited for the sole purpose of Small Car Manufacturing project and letters of allotment issued to the Vendors as recommended by Tata Motors Limited in view of non-commissioning and abandoning Small Car Project and ancillary factories with a view to returning such portion of the land to the unwilling owners thereof, who have not accepted compensation and to utilize the balance portion in public interest and for the benefit of the State;

The Act has nine sections. It came into force on the day of its notification in the Official Gazette, on 20th June, 2011, after receiving the assent of the Governor. As is usual in enactments Section 2 contains definitions. 2(b) contains the definition of “land”. It means inter alia, the land leased out by the fourth respondent to the Tatas. Now this definition of land is further elucidated in Section 4(1). It includes all “assets, rights, leaseholds…………all properties movable and immovable ………standing thereon”. Section 3 is the vesting section under the Act. The land stands transferred to and vested in the State Government, free of any lease or “allotment”. Sub-section (1) of Section 4 repeats this with special regard to the lease and adds that it would also stand inter alia, discharged of any lease. Section 4(3) of the Act enjoins inter alia, the Tatas to forthwith restore vacant position of the land in favour of the District Magistrate, Hooghly. In case of any failure the District Magistrate or any officer authorised by him in this behalf shall be entitled to take steps and use force as may be necessary to take possession of the land. Section 5 deals with compensation. Sub-sections (2) and (3) of Section 5 are in the following terms:

“(2) For the transfer to and vesting of the land leased to the Tata Motors Limited, the amount of compensation would be adjudged and determined

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by the District Judge, Hooghly on an application being made by the Tata Motors Limited in due compliance with the principles of natural justice and by reasoned order. (3) The amount so determined in accordance with the provisions hereto, shall carry simple interest at the rate of six per centum per annum from the period commencing on the date of application made by the claimant and ending on the date of tender of the amount as may be determined and payable by the State Government.”

Section 6 amplifies the avowed public purpose in enacting the Act in the following terms:

“6. The State Government shall return equivalent quantum of land to unwilling owners, who have not accepted the compensation from the land described in Part I and Part II to the Schedule and the rest of the land shall be utilized by the Government for socio-economic development, employment generation, industry and for other public purpose of the State.”

A statement of objects and reasons was issued to justify the Act. Paragraph 2 of this statement is of great importance. It reads as follows:

“(2) Since the grant of lease to the TML, four years have passed but no small car production industry has been commissioned for regular production of small car, which has in fact been abandoned by the TML as announced by the TML and reiterated in their letters including the letter dated 28.09.2010 and the TML have already transferred, removed the small car project and all machinery and equipment from the said land to another State. So far as letters of allotment issued to the ancillary industries recommended by TML for the purpose of setting up of the industry/factory is concerned, the object has also totally failed. None of those industrial undertakings have taken any steps for obtaining lease in terms of letters of allotment or at all have not set up any industry and the land has been lying unutilized for more than three years. No employment generation and socio-economic development has taken place and people

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in and around the area have not been benefited in any manner, whatsoever, although more or less Rs.137 crore has been paid by WBIDC as compensation to landowners and the State Government has spent more than Rs.76 crore for construction drainage and other infrastructure. In addition, the State Government has incurred expenses for providing security at site.”

Paragraphs 4 and 5 are statements about public purpose and are in the following terms:

“(4) Several owners of the land/farmers have protested against acquisition against their wishes and have not accepted any compensation and on having realized that there is no scope of generation of employment have been clamouring for return of their land and staging agitations in that area endangering safety and security of the area which unless properly handled urgently, serious law and order problems is likely to develop. (5) In the circumstances, the State Government in public interest considers it necessary to take back the ownership of those plots of land and to take over possession thereof in view of total frustration of the object and purpose of allotment/lease of land and for ameliorating ascending public dissatisfaction and agitation and to take steps urgently for return of the land to the unwilling owners of the land who have not accepted any compensation and to utilize remaining portion of the land in public interest for benefit and socio-economic development of the State of West Bengal.”

In exercise of the power conferred by Section 9 of the said Act, the Singur Land Rehabilitation and Development Rules, 2011 were framed. It contains the machinery for allotment and distribution of land to persons who unwillingly delivered up their land during the acquisition process of 2006. Although these rules have been challenged, no substantial arguments were made in this behalf. The attack was confined to the validity of the Act and the manner of its implementation for taking possession of the land in occupation of the Tatas.

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THE ENACTMENT AND TAKING OF POSSESSION: On 14th June, 2011, the bill was introduced in the State legislature. It was passed on the same day. It received the assent of the Governor which was notified in the Kolkata Gazette Extraordinary on 20th June, 2011. It appears from the submissions made on behalf of the Tatas and not controverted by the respondents that on 21st June, 2011 at about 6.30 p.m. the Hon’ble Minister for Industry of the State announced in a press conference which was televised that the Act had received the assent of Governor. At or about the same time, some government officials arrived at the gate of the Singur factory. On 21st June, 2011 itself a Joint Secretary to the Government of West Bengal wrote to the District Magistrate and Collector asking her to take immediate possession of the land. However, the letter contained a rider that such possession was to be taken after serving notice to the Tatas “observing all the formalities”. Now, the formalities that were observed are quite extraordinary. They become extremely relevant and assume utmost importance in this case. The noting of the District Magistrate dated 21st June, 2011 in an order sheet records, first a direction to issue notice to the Tatas to deliver vacant possession of the land to the District Magistrate, Hooghly. The second endorsement on the sheet made on the same day records that such notice had been issued and “service return” were in the records. Now the notice stated 21st June, 2011 addressed to the Managing Director of Tata Motors Ltd. was said to have been posted on 22nd June, 2011 and received by the addressee on 28th June, 2011. However, a duplicate notice was received by a security officer of the Tatas on 21st June, 2011 at 8.51 in the evening. The third recording in the said order of the District Magistrate is also dated 21st June, 2011. It records “failure” on the part of the Tatas to restore possession of land. At about 8.30 p.m. in the evening of the same day the District Magistrate and the Superintendent of Police arrived at the site. Now, the letter dated 23rd June, 2011 from the Superintendent of police, Hooghly, to the District Magistrate refers to two Memoranda 131/C and 132/C of the District Magistrate, Hooghly both received by the Superintendent at 8.30 hours in the evening of 21st. The Memo 131/C recorded that possession had been taken and made a requisition for a “huge police arrangement” at the “Singur Site” from the night of 21st June, 2011 while Memo 132 B said that such exercise was undertaken to keep vacant possession.

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It is plain that the State was in possession of the Singur land by 8.30 p.m. in the evening on 21st June, 2011. All the above documents have been disclosed in the affidavit-in-opposition of the District Magistrate, the fifth respondent affirmed on 7th July, 2011. This leads very little room for doubt that possession was taken without any notice. SUBMISSIONS: Mr. S. Pal, Sr. Advocate The case of the Tatas was advanced by Mr. Samaraditya Pal, learned Senior Advocate. He began his submissions by citing Joydeep Mukherjee Vs. State of West Bengal reported in (2008)2 CHN 546. This is a Division Bench judgment of our High Court delivered on 18th January, 2008 by P.C. Ghose, J. on behalf of the bench. By this judgment the acquisition of land in Singur in 2006 was upheld. It is submitted that the party/parties aggrieved preferred a special leave petition before the Supreme Court, which has been admitted by the Court. The appeal is pending. No interim order was passed by the Supreme Court while admitting the Special Leave Petition. He took me in detail through the provisions of the lease, showing me the recitals, representations, warranties as well as the covenants. Such provisions of the lease are mentioned by me in detail below. He described in great detail the concept of “eminent domain” as being an incident of the sovereign power of the State to take private property and the recognition of that power in the original Article 31 of the Constitution, relating to acquisition. It was to be exercised for public purpose and upon payment of compensation. He showed me all the law on the subject, right from The State of Bihar vs. Sir Kameshwar Singh reported in AIR 1952 SC 252 to the two latest five Judges’ bench decisions of the Supreme Court in Rajiv Sarin vs. State of Uttarakhand and K.T. Plantation (P) Ltd. vs. State of Karnataka, both decided on 9th August, 2011. Thereafter, he placed Article 245, 246 and 254 of the Constitution of India together with entry 18 of list II which is the State List which is part of the seventh schedule of the Constitution and entry 42 of list III which is in the Concurrent list and part of the same schedule. Placing Article 245 he contended that parliament may make laws for the whole or any part of the territory of India, and the legislature of a state may make laws for the whole or any part of the state. Placing article 254(1) he said that if any state law

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was contrary to a law made by parliament or the law made under the Concurrent list, the law of parliament would prevail. The law made by the state which was repugnant to the law made by parliament would be void to the extent of such repugnancy. However, this was subject to Article 254(2) which stated that if a law made by the legislature received the assent of the President, it would prevail despite its repugnancy with a law made by parliament. He cited the case of Kuldip Nayar and others – v – Union of India and others, reported in (2006)7 SCC 1. He remarked after placing paragraph 50, 55, 56, 57, 58, 59, 62, 63 and 64 that the Indian polity was federal but it had strong unitary features. The judgment of the Supreme Court said that the Indian Constitution was “more unitary than federal”. Thereafter, he elaborated on Article 246 which divided the subject matters within the competence of parliament and the state legislature into three seperate lists. These lists make up the seventh schedule of the Constitution. List I is called the Union List and contain the subject matters over which parliament may exclusively legislate. List II refers to the subject matters over which the state legislature may exclusively legislate. List III is the concurrent list over which both may legislate. Then he refers to the subject matters in List II and III relating to land and acquisition. Mr. Pal also spoke about the history of amendments of the items in these two lists relating to acquisition. Entry 33 of List I at the time of enactment of the Constitution related to acquisition for the purposes of the Union. Entry 36 of the State List related to similar acquisition by the state, except for the purpose of the Union subject to the provision of entry 42 of list III. Entry 42 of List III empowered the parliament and the state legislature to concurrently legislate on the principles on which compensation was to be given. By the seventh Amendment Act, 1956 entry 33 of List I and entry 36 of List II were deleted. Entry 42 was reanacted by deleting the existing subject matter and replacing it by the expression acquisition and requisitioning of property. Mr. Pal submitted that the state in paragraph 24 and 25 of their Affidavit-in-opposition had asserted that the subject matter of the impugned Act fell under entry 18 of list II. This entry is as follows:

“18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.”

He cited Rustam Cavasjee Cooper – v – Union of India, reported in 1970 (1) SCC 248 and also reported in AIR 1970 SC 564 for many purposes.

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During this stage of the arguments he cited paragraph 38 of that judgment which stated that after the seventh amendment Act, 1956 the power to legislate for acquisition of property can only be exercised under entry 42 of List III and not an incident of the power to legislate over the subject matters covered by the other entries in the three lists. He argued that this power was not available under entry 18 of List II. The impugned Act, according to him expropriated property that is the leasehold interest of the Tatas in Singur. Therefore, the legislation being expropriation in nature was an exercise of power under entry 42 of List III. This submission was made to advance the argument that if there was exercise of power under entry 42 of List III, the Act to stand, had to have the assent of the President. Since, it did not have the assent of the President it could not be in conflict with any parliamentary law and to be more specific the Land Acquisition Act, 1894. The impugned Act was absolutely repugnant to the Land Acquisition Act, 1894 and was therefore void. Next, he cited the case of Ishwari Khetan Sugar Mills (P) Ltd. And Others vs. State of Uttar Pradesh and Others reported in (1980) 4 SCC 136, while formulating the “pith and substance” doctrine. He referred to the portion of the judgment in paragraph 13 and said that if a legislation was substantially within one entry but some part of the legislation incidentally trenched upon any subject matter of another list the Act as a whole would be valid. He also placed paragraph 18 and argued that after the 7th Amendment Act, of 1956 relating to Entry No. 33 of list I, Entry No. 36 of list II and Entry No. 42 of list III the power of acquisition and requisition of property could not be an incident of any other power. Mr. Pal then cited the case of H. D. Vora vs. State of Maharashtra and Others reported in (1984) 2 SCC 337, to explain the nature of expropriation, which according to his submission based on the above judgment was “acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former.” Thereafter the learned Counsel placed the provisions of the Act, namely, Section 3 which provided for vesting of the land and Section 5 which provided for compensation. Immediately thereafter he placed R.L. Jain (D) By Lrs. vs. DDA And Others reported in (2004) 4 SCC 79 paragraph 11 to submit that compensation had to be paid immediately after taking of possession by the government.

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Thereafter, the learned Counsel tried to place the parts of the Act dealing with public purpose. He argued that the public purpose mentioned in the Act was for return of land to “unwilling owners” of land which was acquired for the Tatas. He said that there was no public purpose involved in giving the land to unwilling owners when land was acquired exercising the power of eminent domain, and when such acquisition was upheld by the Court. The question of “willingness” was totally irrelevant in acquisition. Willing or unwilling the owners had to give up the land. A purpose directed at returning the land acquired could not be public purpose. He cited Charanjit Lal Chowdhury vs. The Union of India And Others reported in AIR 1951 SC 41 para 48 to submit that in case of acquisition willingness or unwillingness of the expropriated owner does not matter. He next contended that Section 4(3) of the impugned Act directing the Tatas to forthwith restore vacant possession in favour of the District Magistrate, Hooghly contained unguided power. He cited State of Maharashtra vs. Mrs. Kamal Sukumar Durgule and Others etc. reported in 1985 SC 119 relating to Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 66 of 1975 to submit that such provision was unconstitutional. The learned Senior Advocate also submitted that any action of the government or a statutory authority in undue haste is malice in law and is presumed to be arbitrary referring to Sarva Shramik Sangh, Bombay vs. Indian Hume Pipe Co. Ltd. And Another reported in (1993) 2 SCC 386, R.S. Garg vs. State of U.P. And Others reported in (2006) 6 SCC 430, Zenit Mataplast Private Limited vs. State of Maharashtra And Others reported in (2009) 10 SCC 388 and Fuljit Kaur vs. State of Punjab And Others reported in (2010) 11 SCC 455. The action of the government in enacting the impugned Act and the rules thereunder and implementing the Act by taking most expeditious possession of the land on 21st June, 2011 was on the face of it misuse of power. He cited Congreve vs. Home Office reported in (1976) 1 ALL ER 697 and Wheeler and Others vs. Leicester City Council reported in (1985) 2 ALL ER 1106. Thereafter, Mr. Pal made an endeavour to interpret the word “forthwith” under Section 4(3) of the Act. The section provided, inter alia, that the Tatas would forthwith restore vacant possession of the land in favour of the District Magistrate, Hooghly. According to him, forthwith did not mean taking possession within a few hours without giving notice. He drew my attention to Gopal Mondal – v – The State of West Bengal, reported in AIR 1975 SC 1087. In that particular case according to Mr. Pal, the Supreme Court opined

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that a reasonable view has to be taken of the word “forthwith” in the facts and circumstances of each case. Three days’ delay was considered by the Supreme Court to be forthwith in the facts and circumstances of that particular case. Therefore, although there is provision for forthwith delivery of possession in favour of the District Magistrate, Hooghly, nonetheless, taking of possession within a few hours of notification of the statute was a most arbitrary act. He also referred me to State of W.B. and others – v – Vishnunarayan & Associates(P) Ltd. and another, reported in (2002)4 Supreme Court Cases 134. He contended that the Tatas have been evicted from Singur by force and that in paragraph 17 of that judgment placed by Mr. Pal, the use of force in taking possession of premises by the State Government was held to be bad. The Act was also attacked. It conferred unfettered discretion on the state administration. The Act was most unreasonable in its conception and in its application. Two English decisions were cited by Mr. Pal, Sharpe – v- Wakefield and others, reported in [1886-90] All E.R. 651 and Associated Provincial Picture Houses Ltd. – v – Wednesbury Corporation, reported in [1947]2 All E.R. 680. Paragraphs 9 and 10 of the judgment of the Supreme Court in Khudiram Das – v- The State of West Bengal and others, reported in AIR 1975 SC 550 (paragraph 16 and 24), The Manager, Govt. Branch Press and another – v – D.B. Belliappa, reported in AIR 1979 SC 429 were also cited. Before introducing the topic of eminent domain Mr. Pal took me in detail through the provisions of the Land Acquisition Act, 1894, right from issuance of notice, receiving of objections, making of award, vesting, principles to be taken into account for computation of compensation, principles to be disregarded in calculating compensation, the obligation to tender the awarded sum, upon making of an award by the collector, reference to the District Judge, payment of interest under the Act and so on. Thereafter, he argued that the power to acquire was not an incident of any other power. It was wholly exercise of powers under list III entry 42. List II entry 18 did not cover acquisition of land. The power of the legislature to acquire land was not an incident of any other power. He cited the case of Rustom Cavasjee Cooper vs. Union of India reported in AIR 1970 SC 564 and Ishwari Khetan Sugar Mills (P) Ltd. and others – v – State of Uttar Pradesh and others, reported in (1980) 4 SCC 136. Then he came to the topic of a single person legislation. He argued that a single person legislation could not be arbitrary or discriminatory. If such a law was unjust it was no law at all. He cited four decisions for this

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proposition in Ram Prasad Narayan Sahi and another – v – The State of Bihar and others, reported in AIR 1953 SC 215, P. Venugopal – v – Union of India, reported in (2008)5 SCC 1, para 36, Bharat Petroleum Corporation Ltd. – v – Maddula Ratnavalli and others, reported in (2007)6 SCC 81, para 20, State of T.N. and others – v – Ananthi Ammal and others, reported in (1995) 1 SCC 519, para 7. After this he started elucidating his arguments on public purpose. He referred to the erstwhile Article 31 of the Constitution. He said that acquisition was exercise of the power of eminent domain. This power could be exercised for public purpose only and upon payment of compensation. The power to acquire property and the duty to pay compensation had been deleted from the part relating to fundamental rights. It was enacted as a constitutional right in Article 300A. It said that no person would be deprived of his property save in accordance with law. Now, this deprivation had to be for public purpose only and upon payment of reasonable compensation. He cited Hindustan Petroleum Corpn. Ltd. – v – Darius Shapur Chenai and others, reported in (2005)7 SCC 627 and Sooraram Pratap Reddy and others – v – District Collector, Ranga Reddy District and others, reported in (2008)9 SCC 552, paras 43,44 and 45 and argued that no public purpose was disclosed in the impugned Act. He said that willingness or unwillingness of a person was not material in acquisition referring to the case of Charanjit Lal Chowdhury (Supra). Therefore, the reference to unwillingness persons did not signify any public purpose. He cited Gadadhar Ghosh – v – State of West Bengal, reported in AIR 1963 Cal 565 to submit that when a purpose had been declared the Court could not investigate any undisclosed purpose. However, he argued that since no purpose had been manifestly declared by this Act it was invalid. He relied on Smt. Somawanti and others – v- The State of Punjab and others, reported in AIR 1963 SC 151, paras 35 and 36 to argue that such statement of public purpose was justiciable. He also showed me Munshi Singh and others – v – Union of India, reported in (1973)2 SCC 337, para 8 to say that a purpose which was vague was not public purpose at all. He also cited The State of Karnataka and another – v – Shri Ranganatha Reddy and another, reported in (1977)4 SCC 471 to augment his argument regarding alleged absence of public purpose. Thereafter, the learned counsel started arguing on the question of compensation. At the outset he said that Section 5 did not specify the compensation to be paid. Nor did it specify any principles for the calculation or payment of compensation. It only said that the amount of compensation would be adjudged and determined by the District Judge, of Hooghly on an

17

application being made by the Tatas, by a reasoned order, after observing the rules of natural justice. He began his arguments challenging the compensation claim by placing the case of Paschimbanga Bhumijibi Krishak Samiti & Ors. – vs – State of West Bengal, reported in (1996)2 CLJ 285. Thereafter, he recounted the history of the law of acquisition and payment of compensation by placing the Land Acquisition Act 1894 in great detail. Thereafter, he placed Section 299 of the Government of India Act, 1935 which said that no property could be acquired except in accordance with law and except upon payment of compensation to be specified in the Act or upon provision of the principles for payment of compensation, therein. He showed me Article 31 of the Constitution of India as it was at the time of adoption of the Constitution. He also took me through the various constitutional amendments amending Article 31, namely, the Fourth Amendment of 1955 which said that the adequacy of compensation could not be examined by the court. He also showed me the Twenty Fifth Amendment of 1971 where the word “compensation” was replaced by the word “amount”. Then he came to the Fortyfourth amendment of 1978 which deleted Article 31 and ceased to recognise right to property as a fundamental right. It was only recognised as a constitutional right by insertion of Article 300A. This subsection stated that no person would be deprived of his property save in accordance with law. He cited the case of Rustam Cavasjee Cooper – vs – Union of India, reported in 1970(1) SCC 248 which is a eleven Judges’ bench decision of the Supreme Court. He made a very significant argument by pointing out the difference between the word “confiscation” and the word “compensation”. He argued that when a property was confiscated by the State it was done as a penalty for some act done by the land owner. When there is confiscation no compensation is payable. Compensation is the money awarded for deprivation of property. How the compensation was to be fixed or calculated was a different matter. But, any expropriation of property by exercise of the power of eminent domain or acquisition had to be accompanied by payment of compensation by the state. He cited His Holiness Kesavananda Bharati Sripadagalvaru – vs – State of Kerala and another, reported in (1973) 4 SCC 225 . This was followed by State of Maharashtra and another – vs – Basantibai Mohanlal Khetan and others, reported in (1986) 2 SCC 516, para 7, 8, 15, Paschimbanga Bhumijibi Krishak Samiti & Ors. – vs – State of West Bengal & Ors., reported in 1996(2) CLJ 285. He also reiterated the case of Hindustan Petroleum Corpn. Ltd. – vs – Darius Shapur Chenai and others, reported in (2005)7 SCC 627. He showed me the various lists under the seventh schedule. He referred to the history of those lists. He showed entry 18 of list II and entry 42 of list III.

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He placed the case of Jilubhai Nanbhai Khachar and others – vs – State of Gujarat and another, reported in 1995 Supp (1) SCC 596 to argue that while legislating for land, land tenure and on other subjects relating to land the legislature could also make acquisition which fell under entry 42. Thereafter, he came to the question of abandonment and argued that there was no abandonment on the part of the Tatas. The word meant permanently leaving something. There was no permanent leaving by the Tatas. They had only removed their plant, equipment and machinery from the site. He relied on Kanhiya Shanker and others – vs – Mohabata Sedhu and others, reported in AIR 1960 Punjab 494, Bombay Dyeing & Manufacturing Co. Ltd. – vs – The State of Bombay and others, reported in AIR 1958 SC 328, paragraphs 28, 29 and 30 , G.T. Lad and others – vs – Chemicals and Fibres India Ltd., reported in AIR 1979 SC 582, paragraph 3. Next he argued on the question of repugnancy. He argued that since the impugned Act was without the assent of the President, it was repugnant to a Central Act, namely, the Land Acquisition Act, 1894. In no way could the provisions of the impugned Act be reconciled with the Land Acquisition Act, 1894. Therefore, the repugnancy was total and irreconcilable, referring to State of West Bengal – vs – Union of India, reported in AIR 1963 SC 1241, paragraph 46 , Thakur Amar Singhji and others – vs – State of Rajasthan and others, reported in AIR 1955 SC 504, paragraph 27. He also referred to G.P. Stewart – vs – Brojendra Kishore Roy Chaudhury, reported in AIR 1939 Calcutta 628, M.P. Ait Permit Owners Assn. and another – vs – State of M.P., reported in (2004)1 SCC 320 in support of his proposition. Thereafter, he emphasized on the pith and substance theory. The pith and substance of an Act had to be gone into. He relied on Bondu Ramaswamy and others – vs – Bangalore Development Authority and others, reported in (2010) 7 SCC 129. He also took me through two recent Supreme Court decisions, each by a five Judges’ bench of the court and each rendered on 9th August, 2011. The first is the case concerning the Kuzarlar Act, the second is the case of K.T. Plantation Private Limited – vs – State of Karnataka. Both are still unreported. Both of them deal with the power of the State to acquire property under Article 300A of the Constitution of India and recognised the right of the land owner to receive compensation which was not illusory. He also referred to the case of Bondu Ramaswamy and others – vs – Bangalore Development Authority and others, reported in (2010) 7 SCC 129, para 89 dealing with Bangalore Development Authority Act. He also referred to Offshore Holdings Private Limited – vs – Bangalore Development

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Authority and others, reported in (2011)3 SCC 139 concerning the same Bangalore Development Authority Act and Girnar Traders – vs – State of Maharashtra and others, reported in (2011)3 SCC 1 concerning a Maharashtra Act. Submissions of State-respondents: The submissions on behalf of the State-respondents were made by the learned Advocate General, Mr. Saktinath Mukherjee, learned Senior Advocate, Mr. Kalyan Bandopadhay, learned Senior Advocate and Mr. Ashoke Banerjee, learned Senior Advocate. Mr. Advocate General The learned Advocate General began his argument by contending that the definition of compensation was very wide in the impugned Act. The definition of compensation in the Land Acquisition Act was very narrow. Then he placed the history of acquisition of this land in 2006. Thereafter he placed the provisions of the lease agreement. He said that the purpose was for setting up of an automobile plant. No premium was paid by the Tatas. The rent was Rs. 1 crore per year. He submitted that the rent payable to the State was very meagre. He said that this lease was not assignable. The land could not be sublet. It could not be used for any purpose other than for manufacture of automobile. His argument was that the leasehold right had no saleable interest. He submitted that the operation in the factory was suspended from 29th August, 2008. He placed great reliance on the use of the expression by the Tatas in the letter dated 10th October, 2008 to “move out of Singur” and to “withdraw” from the site. Operations were formally closed on 3rd October, 2008 referring to the letter dated 28th September on 2010 of the Tatas at page 297 of the writ petition. He also relied upon the letter of the Tatas dated 31st October, 2008 which said that they would take ten months’ time to move out of Singur. He then read the letter dated 22nd June, 2010 of the fourth respondent enquiring from the Tatas whether the site would be used by them for manufacturing activity. He also read their reply dated 28th Septemeber, 2010 which inter alia, said that they would consider the option to move out permanently provided they were suitably compensated. He then referred to the case of Tata Power Co. Ltd. vs. Reliance Energy Ltd. And Others reported in 2009 (16) SCC 659 and the case of State of Bihar And Others vs. Bihar Distillery Ltd. And Others reported in 1997 (2) SCC 453 which relied on the case of SEAFORD COURT ESTATES vs. ASHER reported in 1949(2) ALL ER 1955 to submit that there was a presumption of

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constitutionality of a statute. The Court should not pick holes in it and try to interpret the Act so as to support it. Thereafter, he apprised the Court that the total compensation paid for the first acquisition was Rs. 137 crores. Rs. 76 crores were expended for drainage and other infrastructure by the State. In spite of such investment by them the land was lying idle. Therefore, the State decided to take it over. He tried to justify the impugned Act by drawing its analogy with the West Bengal Premises (Tenancy Regulation) Act, 1976. He submitted that a tenant of government premises could be given a notice of termination of tenancy and asked to restore possession, taking the help of force if necessary. There was no question of payment of any compensation. Then he tried to distinguish the Land Acquisition Act, 1894 and the impugned Act by saying that under the Land Acquisition Act there was no automatic acquisition. By the impugned Act, the leasehold interest of the Tatas was automatically extinguished. He argued that in the impugned Act there could not be any acquisition because the State could not acquire its own land, citing the case of M/s Ahad Brothers vs. State of M.P. & Another reported in AIR 2005 SC 355. Thereupon he cited Nader Chand vs. State of West Bengal reported in AIR 1952 CAL 67 paragraph 19 and 20 to contend that payment of compensation was not a condition precedent to vesting or taking of possession of land. He relied on by the case of Nader Chand vs. State of West Bengal reported in AIR 1952 CAL 67 to say that the notices were issued by the district officials after enactment of the impugned Act, “as a matter of grace” and there was no requirement for issuance of such notice. Then he spoke about the law of repugnancy. He said that there was no repugnancy between any Central Act and the impugned Act. He argued that the subject matter covered by the impugned Act was wholly within Entry 18 of List II. The legislation related to land, land tenure, landlord and tenant. The pith and substance of the legislation was under entry 18 of List II. Therefore, the said legislature had the competence to make this legislation. Thereafter, he cited State of Karnataka vs. Shri Ranganatha Reddy & Another reported in 1977 (4) SCC 471 to emphasize on the public purpose. Then he argued on the question of compensation, taking note of Article 31 and its amendments and the various amendments of List II and List III of the 7th Schedule to the Constitution, but, particularly entry 18 of List II and entry 42 of List III. He argued that the law regarding compensation as laid down by

21

the Supreme Court after coming into force of the Constitution, has been considerably diluted by various constitutional amendments. Even the case of Cooper was not absolutely relevant at this point of time, considering the subsequent decisions of the Supreme Court. The compensation to be awarded was not to be “absolutely illusory or arbitrary”. Nevertheless, he placed the concept of compensation as being “equivalent”, citing the case of Md. MOZIAHARAL AHMAD vs. Md. AZIMADDIN reported in AIR 1923 CAL 507 and Rathi Menon vs. Union of India reported in 2001 (3) SCC 714. Then he made the arguments relating to public purpose. He said that the need of a section of the people would be termed as public purpose. In this case the section of people were the “unwilling owners”. He cited the case of Ratilal Shakarabhai & Ors. vs. The State of Gujarat & Ors. reported in 1970 (2) SCC 264 and Urmila Roy & Others vs. Bengal Peerless Housing Development Company Ltd. & Others reported in 2009 (5) SCC 242 (paragraph 16). He said that the Act enjoined forthwith taking of possession of the property and possession as taken of the property at Singur was valid. Mr. Saktinath Mukherjee, Senior Advocate: Mr. Mukherjee began his arguments by citing Chiranjit Lal Choudhury vs. Union of India reported in AIR 1951 SC 41. He argued that an enactment directed at one person was constitutional if there was sufficient basis or reasons for it. He referred to the acquisition of several oil companies like ESSO, Burma Oil Company and Caltex. Then he tried to justify the taking of possession. He showed me Section 16 of the Land Acquisition Act, 1894. He argued that the Government has the power to take possession of the land upon “making” of the award. The award need not be published or served upon the person affected. The award becomes operational upon its signing and sealing by the collector, citing the case of State of Bihar vs. Samsuz Zoha reported in AIR 1996 SC 61. Therefore, upon making of the award the Government is entitled to take possession. He referred to the West Bengal Land (Requisition and Acquisition) Act, 1948 and West Bengal Land Development and Planning Act, 1948. He said that under those Acts no compensation was payable. He cited West Bengal Housing Board & Ors. vs. Bruendra Prasad Gupta & Ors. reported in 1997 (6) SCC 207, arguing that the West Bengal Land (Requisition and Acquisition) Act, 1948 had been affirmed by the Supreme Court in the case.

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Thereafter, he proceeded to explain the term “freed of the lease” in the impugned Act. He explained the nature of a lease by inter alia placing Section 105 of the Transfer of Property Act. He argued with great fervour as to what happened in the event of determination or extinguishment of a lease. He referred to an old decision of this Court in a case in 1897 ILR 24 Cal 440 where it was said that upon happening of such an event the barrier between the owner and the land was removed. He said that the lease was extinguished. He also placed passages from commentaries by Mulla and by Sir Hari Singh Gour, 8th Edition, 1974. He extended these arguments by explaining the effect of surrender of a lease. He cited Provident Investment Co. Ltd. vs. Commr. Of Income-tax, Bombay City reported in AIR 1954 Bombay 95 and H.S. Ramsingh vs. Bijoy Singh Surana & Another reported in 76 CWN 217. His next argument was with regard to the exercise of power by the legislature in enacting the impugned Act. It was not an exercise of the power of eminent domain but of the power of land reform, extinguishment of land tenure affecting landlord tenant relationship under entry 18 of list II. He placed the case of Sooram Pratap Reddy vs. District Collector Ranga reddy District & Others reported in 2008 (9) SCC 552 to explain the concept of eminent domain together with the case of Anand Singh vs. State of U.P. reported in 2010 (11) SCC 242. In this connection he also referred to the case of Rakhal Chandra Basak vs. The Secretary of State for Indian Council reported in 33 CWN 669. He showed me decisions Calcutta Crdit Corporation vs. Happy Homes Ltd. reported in AIR 1968 SC 471 (paragraph 7) and Mira Sen vs. Dipak Kumar Ghosh reported in 82 CWN 177. These landlord tenant cases were cited so as to show that even if defective notice was accepted by a tenant it was a good notice, referring to the allegedly defective notice issued by the District Magistrate to the Tatas on 21st June, 2011. Then he came to the question of compensation. He cited Yadava Kumar vs. National Insurance Co. Ltd. 2010 (10) SCC 341 (paragraph 70) to argue that compensation was more broad based than damages. He placed the Calcutta Thika Tenancy Act, 1949. He cited two decisions of the Supreme Court relating to taking over of zamindari, jagir, etc. and argued that this fell under land reforms. He cited State of Vindhya Pradesh vs. Mayadhwaj Singh reported in AIR 1960 SC

23

796 para 6 and Amarsarjit Singh vs. State of Punjab reported in AIR 1962 SC 1305 para 22. He cited the case relating to taking over of coffee plantation being the case of Coffee Board, Karnataka, Bangalore vs. Commissioner of Commercial Taxes, Karnataka and others reported in AIR 1988 SC 1487 paragraph 28 and 29 and argued that there was no exercise of eminent domain. The second aspect of his argument was relating to the constitutionality of the impugned Act. He said that it should always be the endeavour of the Courts to make a harmonious construction of the Act. In this regard he cited Harakehand Ratunehand Banthia & Ors. vs. Union of India reported in AIR 1970 SC 1453 and Ajay Kr. Singh & Others vs. State of Bihar & Others reported in 1994 (4) SCC 401. He argued that the pith and substance of legislation had to be examined. In an effort to interpret one entry, another could not be robbed of its entire content. In this connection he referred to Rajiv Sarin’s case and the K.T. Plantation case. He relied upon three Acts of West Bengal 1) West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962, 2) Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and 3) West Bengal Government Premises (Tenancy and Regulation ) Act, 1976, to argue that in these Acts the provisions for extinguishment of the interest of tenants were without any payment of compensation. The last Act had been affirmed by the Supreme Court in the case of Associated Indem Mechanical (P) Ltd. vs. W.B. Small Industries Development Corporation Ltd. reported in 2007 (3) SCC 607. Kalyan Bandopadhay, Senior Advocate: Mr. Bandopadhay, submitted that the main consideration before the Court was the competence of the legislature. It had to see whether the legislature had the competency or not for enacting the impugned Act under List II entry 18. He argued that it had such competence. There was no acquisition. He argued that such kind of law was upheld by the Supreme Court in the case of Jilubhai Nanbhai Khachar vs. State of Gujarat reported in 1995 (Supp) I SCC 596 and placed paragraph 48 and 49 thereof. He argued that by the impugned Act there was extinguishment of the lease and the resumption of ownership and possessory rights of the leased land by the State. He argued that only if exercise of power by the legislature was pretended, could it be called colourable and could be struck down by the Court, citing

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the case of Ashoke Kumar vs. Union of India reported in 1991 (3) SCC 498 paragraph 9. He cited the case of DHARAM DUTT AND OTHERS vs. UNION OF INDIA AND OTHERS reported in 2004 (1) SCC 712 to argue that a single institution could be treated as a class. He also cited the case of Ram Krishna Dalmia vs. Justice Tendolkar reported in AIR 1958 SC 538. He argued that the Court should not seek an unnecessary confrontation with the government and should interfere with legislation in an exceptional case as held by the Supreme Court in the case of Government of A.P. vs. P. Laxmi reported in 2008 (4) SCC 720. He also relied upon the case of State of A.P. vs. Mc. Dawell Devi & Co. reported in 1996 (3) SCC 709 paras 37 and 38 and Glanrock Estate P. Ltd. vs. State of Tamil Nadu reported in 2010 (10) SCC 96. He cited the case of Organo Chemical Industries & Anr. vs. Union of India reported in 1979 (4) SCC 51 to argue that the provision for compensation in the statute was adequate. He also referred to the case of M/s Hoeeshst Pharmacuticals Ltd. vs. State of Bihar & Ors. reported in 1983 (4) SCC 45 paragraphs 52 and 57. Mr. Ashoke Banerjee, Senior Advocate: Mr. Ashoke Banerjee, learned Government Pleader made general arguments citing points argued by the other three learned counsel, but from his own perception and with his own ideas of importance. All the learned Counsel, who argued on behalf of the State were unanimous in submitting that in the event this Court held that the impugned Act involved acquisition, the legislature had kept open the field for grant of lawful compensation by the District Judge, Hooghly. They argued that the legislature did not limit the compensation or enunciate any principles so that the District Judge would be fettered. Compensation according to the legislation is to be paid accordingly. At the very close of submissions I asked the learned Advocate General to take specific instruction, whether the state government would prefer any appeal, if the Court interpreted the word “compensation” as embodying the principles enshrined in Sections 23 and 24 of the Land Acquisition Act, 1894. He replied on the next date after taking instruction that the State had no objections if those principles for grant of compensation were deemed to have been

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embodied in the impugned Act and were to be considered and applied by the District Judge, subject to admissibility of any principle, while awarding compensation. I have taken that statement of the learned Advocate General to be the stand of the State. LAND ACQUISITION -CONSTITUTIONAL HISTORY AND PROVISIONS On 1st March, 1894, the Land Acquisition Act, 1894 came into force. In Section 3(a) land was defined as including benefits arising out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Section 4 says that when it appears to the appropriate government that land is needed for any public purpose a notification will be published by the Collector. Then there are various provisions regarding notification of claims, making of award, vesting of land and payment of compensation. The principles which are to be taken into account for payment of compensation are mentioned in Section 23 of the Act and the principles which are to be disregarded are mentioned in Section 24. Sections 23 and 24 are stated hereunder:

“23. Matters to be considered in determining compensation – (1) determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-

the market value of the land at the date of the publication of the [notification under section 4, sub-section (1)]; the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof; the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land; the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; if, in consequence of the acquisition of the land by the Collector, the person interested in compelled to charge his residence or place of business, the reasonable expenses (if any) incidental to such change; and

first,

Secondly,

thirdly,

fourthly,

fifthly,

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the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector’s taking possession of the land. …….”

“24. Matters to be neglected in determining compensation – But the Court shall not take into consideration.

the degree of urgency which has led to the acquisition; any disinclination of the person interested to part with the land acquired; any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put; any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector sub-section (1) [or] any increase to the value of the land on account of its being part to any use which is forbidden by land or opposed to public policy.”

The Government of India Act came in 1935. Section 299 of the Act was about compulsory acquisition of land. It is in this Act of 1935 that this celebrated statement appears “No person shall be deprived of his property [in British India] save by authority of law”. [Section 299(1)]. Section 299 said that no law for acquisition of any land or any commercial or industrial undertaking or any interest therein would be made without providing for payment of compensation in the Act itself or without specifying the principles for its calculation, in the Act. Now, this provision of the Government of India Act, 1935 is not only part of our constitutional history but is part of the basic constitutional principle for acquisition of property, which it will be seen, has been modified over the years.

sixthly,

first, secondly, secondly,

Thirdly, fourthly, fifthly, sixthly, Seventhly , Eighthly,

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India became independent. On 26th November, 1949, we adopted, enacted and gave to ourselves the constitution. By the operation of Article 394 major provisions of the constitution came into force only on 26th January, 1950. Article 31 related to right to property. It was part of our fundamental rights. Sub sections 1 and 2 substantially, if not wholly adopted and incorporated sections 299 (1) and (2) of the Government of India Act, 1935. These sub sections and S.299 of the Government of India Act, 1935 were in the following terms:

“31. (1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in company owing, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.”

“299.(1) No person shall be deprived of his property in [British India] save by authority of law.

(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorizing the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.”

By the fourth Amendment Act effective from 27th April, 1955 Article 31(2) was amended. The amendment was that no law of acquisition could be called in question in any court on the ground that the compensation was not adequate. Further, the 25th Amendment Act, 1971 was made effective from 20th April, 1972. The word ‘compensation’ was deleted and replaced by the word ‘amount’. By the 44th Amendment Act of 1978 right to property ceased to be a fundamental right. Article 31 was deleted. A provision was added after Article 300 and numbered as Article 300A. The first sub section of Section 31

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was transferred to that place. The rest was deleted. Article 300A reads as follows:

“300-A. Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.”

Connected with this constitutional principle is another constitutional principle - the competence of Parliament and the state legislature to enact laws with regard to land acquisition. Part XI Chapter 1 of the Constitution is entitled ‘legislative relations’. Parliament has the power to make laws for the entire territory of India. It can also make extra territorial law. The legislature of the State has power to make laws for the State. This is a very general power, made subject to the other provisions of the Constitution (Article 245). Now, this broad and general power is made more specific by the subsequent articles. List I of the seventh schedule contains subjects over which Parliament has exclusive power to make laws. List II contains subjects over which the State legislature has exclusive power to make laws. List III of it contains subjects over which both Parliament and State have concurrent powers to make laws. These three lists are called the Union list, State list and Concurrent list, respectively. (See article 246). Now, Article 254 is very important. It enacts that if a state law is repugnant to a law made by Parliament it is void to the extent of such repugnancy. However, there is one exception. If the state makes a law with regard to a subject in the concurrent list and such law has received the assent of the President, then it is good law although it is repugnant to the central law. The circumstance when a bill is reserved for the consideration of the President is mentioned in Article 201. The President can assent to the bill or withhold his assent. The most important provision in the article is that when an enactment by the state legislature, on a subject in the concurrent list without the assent of the President, is in conflict with a law made by Parliament, that law will be void or void to the extent of its conflict with any parliamentary law. [Article 254(2)] When the Constitution was enacted entry 33 of list I provided for acquisition or requisitioning of property for the purposes of the Union. Similarly, entry 36 of list II provided for acquisition or requisitioning of property except for the purposes of the Union subject to entry 42 of list III. Entry 42 of list III related to the principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a state or for any other public purpose was to be determined and the form and the manner in which such compensation was to be given. By the Seventh Amendment Act, 1956, entry 33 of list I was deleted. So was entry 36 of the State list. Entry 42 of

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the Concurrent list was amended by deleting everything it contained and substituting them with ‘acquisition and requisitioning of property’. LAW ON ACQUISITION AND COMPENSATION: In England all land in the realm is owned by the sovereign. Each individual holds it of some lord (See Law of Real Property by Megary and Wade – Seventh Edition). An attribute of sovereign power is acquisition. The sovereign could acquire or “take over” any private property if it was needed by him for public use (See Kameshwar Singh AIR 1952 SC 252 judgment of Mahajan J. page 39). Although this power to take land resided absolutely with the sovereign, nevertheless, it was attached with an obligation to recompense the land owner for the loss that he suffered. In the beginning it was a matter of negotiation between the officers of the sovereign and the landholder. Later this obligation was engrafted in statutes, first of special pplication and then of general application (See State of Bihar vs. Kameshwar Singh reported in AIR 1952 SC 252 judgment of Das J. para 91). Blackstone the famous English commentator on common law had spoken about this in his three volumes of Commentaries on the laws of England published in the 18th Century. According to Blackstone, the standard of compensation was an equivalent of the property lost. It is very necessary to set out what Blackstone said as embodied in paragraph 94 of R. C. Cooper vs. Union of India AIR 1970 SC 564(Judgment of J.C. Shah J).

“94. Under the Common Law of England, principles for payment of compensation for acquisition of property by the State are stated by Blackstone in his “Commentaries on the Laws of England”, 4th Edn., Vol.1, at p. 109:

“So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. * * * Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modeled by the municipal law. In this and similar cases, the legislature alone can, and indeed frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but giving him a full indemnification and

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equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does, is to oblige the owner to alienate his possession for reasonable price: * * *

The British Parliament is supreme and its powers are not subject to any constitutional limitations. But the British Parliament has rarely, if at all, exercised power to take property without payment of the cash value of the property taken. In Attorney-General v. De Keyser’s Royal Hotel, 1920 AC 508, the House of Lords held that the Crown is not entitled as of right either by virtue of its prerogative or under any statute, to take possession of the land or building of a subject for administrative purposes in connection with the defence of the realm, without compensation for their use and occupation.”

The concept of eminent domain is a continental principle and was adopted by the United States of America and became part of their constitutional law. According to this doctrine the State in the exercise of its sovereign power may take over any private property if it was needed for public purpose and upon payment of just compensation. This constitutional principle was embodied in the 5th Amendment to their Constitution as stated by our Supreme Court in the case of State of Bihar vs. Kameshwar Singh (Supra) (See J. Mahajan J. para 40 and S.R. Das J. para 91). This constitutional principle of acquisition of England and eminent domain of the United States of America was embodied in our constitution at the time of its adoption and enforcement as Article 31. It was not new. It was there, as Section 299 in the Government of India Act, 1935. This Article recognised the famous doctrine that no person was to be deprived of his property save in accordance with law. Upon deprivation of property the person deprived would be provided “compensation” to be provided in the law making such deprivation or according to principles for calculation of such compensation to be provided in that law. In Kameshwar Singh’s and Bella Banerjee’s case the Supreme Court interpreted compensation to mean a just equivalent of what the holder of the property had been deprived of. In paragraph 41 of Kameshwar Singh, Mahajan J. pronounced as follows:

“………..I agree with the Learned Attorney General that the concept of acquisition and that of compensation are two different notions having their origin in different

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sources. One is founded on the sovereign power of the State to take, the other is based on the natural right of the person who is deprived of property to be compensated for his loss. One is the power to take, the other is the condition for the exercise of that power. Power to take was mentioned in Entry 36, while the condition for the exercise of that power was embodied in Art. 31(2) and there was no duty to pay compensation implicit in the content of the entry itself.”

In paragraph 6 of Bella Banerjee the Suprme Court through Patanjali Sastri C.J. opined:

“ (6) It is significant to note that prior to the enactment of Bombay Act 6 of 1952, Sections 305 and 306 of the Criminal Procedure Code were applicable to the Court of Session for Greater Bombay. It was intended as stated in the objects of the bill to provide for a case of disagreement with a unanimous verdict of the jury and enable the Sessions Judge for Greater Bombay to make a reference under Section 307 of the Criminal Procedure Code even in the case of a unanimous verdict with which he disagreed. In making the amendment however by the Bombay Act 6 of 1952 the Legislature took away the powers of the Sessions Judge of Greater Bombay to discharge the jury and order a retrial of the accused by another jury even in the case of a majority verdict so much so that even in a verdict of five to four which was not till then an effective verdict the case would have to be submitted to the High Court under Section 307 of the Criminal Procedure Code.”

In 1955 by the Fourth Amendment the Constitution was amended. The amendment added a rider that the adequacy of the compensation could not be gone into by the Court. But the Supreme Court continued to hold that the term compensation imported the principle of “just equivalent” and that compensation to be provided in the law should be so. Only the amount of compensation could not be challenged. (See paragraphs 90 to 100 of R.C. Cooper vs. Union of India, reported in AIR 1970 SC 564) Parliament enacted a further amendment to the Constitution in 1972, called the 25th Amendment. By this amendment the word “compensation” was deleted and replaced by the word “amount”, apparently to prevent the courts from construing the meaning or import of the word “compensation”.

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In the case of His Holiness Kesavananda Bharati Vs. State of Kerela reported in AIR 1973 SC 1461 the Supreme Court held that although the word “compensation” had been replaced by the word “amount” and the adequacy of compensation could not be challenged, nevertheless, the amount awarded could not be arbitrary or illusory and should have a fair relationship with the value of the property sought to be taken. In paragraph 759 of the judgment Hegde and Mukherjea JJ inter alia held:

“ 759…………………………………….. (5) (A) The newly substituted Article 31(2) does not destroy the right to property because (i) the fixation of “amount” under that Article should have reasonable relationship with the value of the property acquired or requisitioned; (ii) the principles laid down must be relevant for the purpose of arriving at the “amount” payable in respect of the property acquired or required; (iii) the “amount” fixed should not be illusory and

(iv) the same should not be fixed arbitrarily.

(5) (B) The question whether the “amount” in question has been fixed arbitrarily or the same is illusory or the principles laid down for the determination of the same are relevant to the subject matter of acquisition or requisition at about the time when the property in question is acquired or required are open to judicial review. But it is no more the “amount” fixed or to be determined on the basis of the principles laid down is adequate”.

Parliament went further. By the 44th Amendment of 1978 it repealed Section 31 altogether except the first part of Section 31, which provided that no person would be deprived of his property by the State without the authority of law, which was retained, not as a fundamental right but as a constitutional right. A new Article 300-A was inserted. It is as follows:

“300-A. Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.”

Let us see what the Supreme Court said post Kesavananda. The Supreme Court in the case of The State of Karnataka vs. Shri Ranganatha Reddy and Another reported in (1977) 4 SCC 471 in paragraph 15 did not depart

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from the basic principle enunciated in the case of Kesavananda Bharati Vs. State of Kerela that the amount awarded as compensation should not be illusory or arbitrary.

While differentiating between acquisition and requisition, in the case of H. D. Vora vs. State of Maharashtra and Others reported in (1984) 2 SCC 337 the Supreme Court said that acquisition meant acquiring the entire title of the expropriated owner whatever may be the nature and extent of that title, relying on Chiranjit Lal – vs – Union of India, reported in AIR 1951 SC 41. In the case of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai And Others reported in (2005) 7 SCC 627, the Supreme Court opined that reasonable compensation had to be given. (See para 6). This doctrine of eminent domain was continued to be recognised in Sooraram Pratap Reddy and others – vs – District Collector, Ranga Reddy District and others, reported in (2008) 9 SCC 552 (See paragraphs 43 to 50); Anand Singh and another – vs – State of Uttar Pradesh and other, reported in (2010)11 SCC 242 (paragraphs 40, 41 and 42)) If property is acquired by the state without compensation it tantamounts to its confiscation, because in confiscation, the property is taken by way of penalty levied by the state. (see His Holiness Kesavananda Bharati Sripadagalvaru – vs – State of Kerala and another, reported in (1973) 4 SCC 225para 705 = AIR 1973 SC 1461) Payment of compensation is not a condition precedent to vesting or taking possession as held in Nader Chand Mallick – vs – State of West Bengal and others, reported in AIR 1952 Cal 67 (paragraph 19 and 20). However, the language of Section 31 of the Land Acquisition Act, 1894 and the judgment of the Supreme Court in R.L. Jain(D) by Lrs. – vs – DDA and others, reported in (2004)4 SCC 79 from paragraph 11 to 17 tend to suggest that compensation should be paid more or less contemporaneously with taking of land. Now, I come to two latest decisions of the Supreme Court. This judgment has provided me with the most invaluable guidance to decide this case. In an appeal before the Supreme Court arising out of the Kuzalr Act, Rajiv Sarin & Anr. vs. State of Uttarkhand & Ors. and decided by a five Judges’ bench of it on 9th August, 2011, and so far unreported, there were “hissedars” of private forests who were not commercially using them. The

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Kuzalr Act amongst other forest lands acquired those forests also. The Act contained principles for computation of compensation in Sections 18 (cc) and 19(b). Compensation was to be calculated according to those sections as the product of the average annual income multiplied by a multiplier. The private forest owners who were not utilizing the land were not awarded any compensation because according to the principles mentioned in those sections compensation was payable only on the basis of annual income. They had no annual income. They were aggrieved by this determination. The highest court refused to believe that because these owners had no income, they could not be compensated for the acquisition of their forest lands. According to the Supreme Court these forest lands were valuable or productive assets in a different sense. It provided guidelines for computation of compensation based on the principles provided in the statute, for award of compensation to those hissedars who were commercially using their forest land. In another so far unreported five Judges’ bench of the Supreme Court delivered on 9th August, 2011, K.T. Plantation – vs – State of Karnataka, the Court maintained that Article 300A recognised the principles of eminent domain to a substantial extent. Acquisition could be made for public purpose and upon payment of compensation which was not illusory. ACQUISITON OR RECLAMATION AND REHABILATION: What is the nature of the impugned Act? Is it reclamation of land and rehabilitation as argued by the Learned Counsel for the State. What is the nature of the impugned Act? The pith and substance of it is that by its operation the unexpired term of the lease granted to the Tatas is extinguished. The result is that the State gets back the land it had given on long lease to the Tatas. It is argued on their behalf that the legislature exercised power exclusively under List II entry no. 18. Let me read this entry:

“18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.”

It is said that the legislature was exercising its powers with regard to land tenure by extinguishing it and was by the Act determining the relationship between

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landlord and tenant. The land belonged to the State. The Tatas were mere lessees. The concept of acquisition was taking of private property. This property belonged to the State. It could not take its own property. The Act got rid of the lease by making the property “free” of it and vesting it in the state, by getting rid of the lessee. A four Judges’ bench of the Supreme Court has held in the case of Collector of Bombay – vs – Nusserwanji Rattanji Mistri and others, reported in AIR 1955 SC 298 that a property may have various interests created in it including lease. When an acquisition is made those interests which are not owned by the state, are only acquired, as the state may own some of these interests on the land. Paragraphs 12 to 15 of the report enunciates the following principles:

““(12) We are unable to accept this contention. When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. In – ‘In the Matter of the Land Acquisition Act: Govt. of Bombay v. Esufali Salebhai’, 34 Bom 618 at p. 636 (D), Batchelor J., observed:

“In other words Government, as it seems to me, are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land, must be distributed among the claimants.”

There, the Government claimed ownership of the land on which there stood buildings belonging to the claimants, and it was held that the Government was bound to acquire and pay only for the superstructure, as it was already the owner of the site. Similarly in – ‘Deputy Collector, Calicut Division v. Aiyavu Pillay’, 9 Ind Cas 341 (Mad) (E), Wallis, J. (as he then was) observed:

“ It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government.”

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With these observations, we are in entire agreement. When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition. The language of S. VIII of Act No. 6 of 1857 also supports this construction. Under that section, the lands vest in the Government “free from all ‘other’ estates, rights, titles and interests”, which must clearly mean other than those possessed by the Government. It is on this understanding of the section that the award, Ex. P, is framed. The scheme of it is that the interests of the occupants are ascertained and valued, and the Government is directed to pay the compensation fixed for them. There is no valuation of the right of the Government to levy assessment on the lands, and there is no award of compensation therefor. (13) We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of section VIII of Act 6 of 1857. But is this assumption well-founded? We think not. In its normal acceptation, “interest” means one or more of those rights which go to make up “ownership”. It will include for example, mortgage, lease, charge, easement and the like, but the right to impose a tax on land is a prerogative right of the Crown, paramount to the ownership over the land and outside it. Under the scheme of the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights comprised therein. Section 3(b) of the Land Acquisition Act No. I of 1894 defines a “person interested” as including

“all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land”.

Section 9 requires that notices should be given to all persons who are interested in the land. Under S 11, the

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Collector has to value the land, and apportion the compensation among the claimants according to their interest in the land. Under S. 16, when the Collector makes an award “he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance”. The word “encumbrance” in this section can only mean interests in respect of which a compensation was made under S. 11, or could have been claimed. It cannot include the right of the Government to levy assessment on the lands. The Government is not a “person interested” within the definition in S.3 (b), and, as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor. (14) It is true that there is in Act No. 6 of 1857 nothing corresponding to S. 3(b) of Act No. 1 of 1894, but an examination of the provisions of Act No. 6 of 1857 clearly shows that the subject-matter of acquisition under that Act was only ownership over the lands or its constituent rights and not the right of the Government to levy assessment. The provisions relating to the issue of notices to persons interested and the appointment of compensation among them are substantially the same. Moreover, under S. VIII the Government is to take the lands free from all other “estates, rights, title and interest”, and “interest” must, in the context, be construed ‘ejusdem generis’ with “estates” etc., as meaning right over lands, of the character of, but not amounting to an estate, and cannot include the prerogative right to assess the lands. It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government, that the right of the latter to levy assessment was not the subject-matter of those proceedings, and that if after the award the lands were not assessed to revenue, it was because there could be no question of the Government levying assessment on its own lands. (15) Then there remains the question whether the sale deed, Ex. A, imposes any limitationon the right of the Crown to assess the lands. The deed conveys the lands to the purchasers absolutely “with all rights, easements and appurtenances whatsoever” to be held “for ever”. It does not, however, recite that they are to be held revenue-free. But it is argued for the respondents that where there is an

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absolute sale by the Crown as here, that necessarily imports that the land is conveyed revenue-free; and S.3 of the Crown Grants Act No. 15 of 1895 and certain observations in – ‘Dadoba Janardhan v. Collector of Bombay’, 25 Bom 714 (F) were relied on as supporting this contention. Section 3 of Act No.15 of 1895 is as follows: “All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding”. The contention is that as the grant is of a free-hold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue. But that will be extending the bounds of S.3 beyond its contents. The object of the Act as declared in the preamble is to remove certain doubts “as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority”. Section 2 enacts that the provisions of the Transfer of Property Act do not apply to crown grants. Then follows S. 3 with a positive declaration that “all provisions, restrictions, conditions and limitations over” shall take effect according to their tenor. Reading the enactment as a whole, the scope of S.3 is that it saves “provisions, restrictions, conditions and limitations over” which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of any provision, restriction, condition, or limitation over, contained in Ex. A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which S.3 could take effect”.”

Conversely, it is also possible for the state to acquire only the leasehold interest without acquiring the reversion.(See paragraph 218 of the Judgment of Kameshwar).

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So the sum of these principles is that a state may own a property and lease it out to a private person or a body corporate. To acquire the property free from the lease it has to acquire the lease hold interest. Technically, the lease was granted by the fourth respondent. But it has been held in the division bench judgment of this court upholding the original acquisition from the individual owners that the fourth respondent was for all purposes the State. Even if the matter is looked into from this technical angle, the Act makes it plain that it was also taking the land from the fourth respondent by extinguishing the lease. So, according to the above authorities the logical flow of events is first acquisition of the ownership of the fourth respondent followed by acquisition of the leasehold interest of the Tatas, by one enactment. Now, the Supreme Court has consistently opined that when there is acquisition there is exercise of power under entry 42 of List III of the Constitution. Now this power cannot be an incident of any other power. (See Rustam Cavasjee Cooper – v – Union of India, reported in AIR 1970 SC 564 and Ishwari Khetan Sugar Mills (P) Ltd. And Others vs. State of Uttar Pradesh and Others reported in (1980) 4 SCC 136, para 19) Now I will read the relevant passages from this judgment: Rustam Cavasjee Cooper – v – Union of India, reported in AIR 1970 SC 564:

“40. ……..Power to legislate for acquisition of property is exercisable only under Entry 42 of List III, and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists: Rajahmundry Electric Supply Corporation Ltd. v. State of Andhra, 1954 SCR 779 at p. 785= (AIR 1954 SC 251 at p. 253). Under that entry “property” can be compulsorily acquired. …………………..”

Ishwari Khetan Sugar Mills (P) Ltd. And Others vs. State of Uttar Pradesh and Others reported in (1980) 4 SCC 136:

“19. It thus clearly transpires that the observation in Cooper case extracted above that power to legislate for acquisition of property is exercisable only under Entry 42 of List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists, is borne out from Rajahmundry Electric Supply Corporation case and Maharajadhiraja Sir Kameshwar Singh case.”

Yes, there are authorities of the same court which lay down that while examining a legislation the pith and substance of it has to be examined. While so enacting if

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there is incident trenching upon some subject over which the legislature has no competence, such trenching is allowed. While such trenching is allowed, the above authorities regarding the permissibility to trench upon the field of acquisition while enacting over other subjects, tell us in clear terms when part of the subject matter of the legislation is acquisition, it has to be taken as exercise of powers under entry 42 of List III and is not be taken as permissible incidental trenching. It is true that a part of the impugned Act relates to tenure and landlord tenant relationship, by extinguishing the lease of the Tatas, vesting the land in the State by evicting the lessee and further proposing to allot the land to displaced unwilling owners of the first acquisition, thereby implying rehabilitation. Whatever may be the nature of legislation mentioned above, in my judgment the Act also acquires the remainder of the 90 year old leasehold interest of the Tatas, by extinguishing the lease. This according to the authorities above is at least partly an exercise of power under entry 42 of List III of the Constitution. Hence it is exercise of the power of eminent domain. Although, great reliance was placed on behalf of the state on the case of Jilubhai Nanbhai Khachar and others – vs – State of Gujarat and another, reported in 1995 Supp (1) SCC 596, I notice that the assent of the President was taken while enacting the Act in question. Furthermore, it was nobody’s case that the acquisition made was not an exercise of power under entry 18 of list II read with entry 42 of list III. Since I hold this is the exercise of the power of eminent domain, the exercise has to satisfy the twin tests of, being for public purpose and providing an amount of compensation to the deprived leaseholder. When such is the weight of authority in favour of acquisition, the authorities cited by the state do not fit into the scheme of things. PUBLIC PURPOSE: Now let me see the provisions of the Act regarding public purpose. First, let me examine the long title. The purpose disclosed here is for return of a portion of the land to the unwilling owners who had not accepted compensation (during the first acquisition). The second purpose is for utilization of the balance portion of the land “in public interest” and “for the benefit of the State”. Section 6 says that part of the land will be utilised by the government for socio economic development, employment generation and so on.

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The case of Gadadhar Ghosh vs. State of West Bengal reported in AIR 1963 Cal 565 is relied on by Mr. Pal to argue that why when some public purpose is declared the Court will not investigate into other undeclared public purposes. When no public purpose is noticeable as declared, as is the case here, the Court should declare that no public purpose is disclosed. Hence, the Act is unconstitutional, he submitted. In any event it is submitted that the public purpose declared is vague; citing the case of Munshi Singh And Others vs. Union of India reported in (1973) 2 SCC 337. The importance of public purpose is brought out by placing the case of The State of Karnataka vs. Shri Ranganatha Reddy And Another reported in (1977) 4 SCC 471 paragraphs 6 to 10 and the case of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai And Others reported in (2005) 7 SCC 627 (paragraphs 9, 18 to 20). Now, the public purpose for which the self-same land was acquired in 2006 was inter alia, to generate employment and socio-economic development of the region by setting up of an automobile plant by the Tatas. This purpose was mentioned in all the section 4 notices under the Land Acquisition Act 1894, brought on record in this case. I think that in understanding the meaning of the words used in the statute the Court is entitled to go into the above part of the history of this legislation. The Court in my opinion is also entitled to look into the Statement of objects accompanying the Act. This statement says the following:

“2. ………………………………. No employment generation and socio-economic development has taken place and people in and around the area have not been benefited in any manner whatsoever, although more or less Rs. 137 crore has been paid by WBIDC as compensation to landowners and the State Government has spent more than Rs. 76 crore for construction drainage and other infrastructure. In addition, the State Government has incurred expenses for providing security at site. 3. …………………………………………….. 4. Several owners of the land/farmers have protested against acquisition against their wishes and have not accepted any compensation and on having realized that there is no scope of generation of employment have been clamouring for return of their land and staging agitations in that area endangering safety and security of the

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area which unless properly handled urgently, serious law and order problems is likely to develop.”

Therefore, the kind of socio-economic development envisaged by the legislature is similar to the one for which the land was initially acquired. And such acquisition has been upheld by the Division Bench of our Court in the case of Joydeep Mukherjee – vs – State of West Bengal & Ors., reported in (2008) 2 CHN 546. The need of a section of the people can be public purpose, as held by the Supreme Court in the case of Ratilal Shakarabhai And Others vs. The State of Gujarat and Others reported in 1970 (2) SCC 264 when land was being acquired for housing purpose. This case was sought to be distinguished by Mr. Pal on the ground that acquisition of land for housing was described as being for public purpose in Section 3 (f) (vi) of the Land Acquisition Act, 1894. But, he failed to point out to me sub-section (v) which specifically provides for land being given to the poor or landless or to persons displaced by implementation of any scheme. This recognises the public purpose mentioned in the impugned Act. What is more important is that land was not being acquired under the Land Acquisition Act, 1894, but, under the impugned Act. Therefore, the public purposes mentioned in the Land Acquisition Act may be suggestive of public purpose but the categories of public purpose can never be closed. Now, the statement in the objects that because of absence of the desired socio-economic development in the area the land was being given back to the unwilling owners, who did not accept the compensation discloses public purpose in my opinion. In any event, it is quite well settled that any perception of public purpose by the legislature is not within the province of the Court to investigate. See the case of Kameshwar and paragraph 10 of The State of Karnataka and another – vs – Shri Ranganatha Reddy and another, reported in (1977)4 SCC 471. The Court can only decide on its effect when no public purpose is disclosed or the public purpose disclosed on the face of it does not disclose that purpose. In my opinion, the scope for enquiry by the Court is limited. It cannot make any enquiry regarding the actual correctness of the statements in the Act or the willingness of the government to fulfill this purpose, on the authority of The State of Karnataka and another – vs – Shri Ranganatha Reddy and another, reported in (1977)4 SCC 471. The decision of the Supreme Court in the case of Smt. Somawanti and others – v- The State of Punjab and others, reported in AIR 1963 SC 151

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was on the Land Acquisition Act, 1894, where a notification had to be issued by the government, stating the public purpose. This notification is an administrative Act under the statute. Therefore, it has to strictly conform with the requirements of the statute regarding enunciation of public purpose. The impugned Act discloses public purpose in its body as well as in the statement of objects quite sufficiently, in my opinion. COMPENSATION Section 5(2) of the impugned Act provides for compensation. It enacts that compensation would be given by the State. The amount of this compensation would have to be adjudged by the District Judge, Hooghly. This provision is allegedly unconstitutional on the ground that the amount of compensation is not quantified. Neither, are the principles for its computation provided. This was an absolute requirement and for the failure of the legislature to provide any of the two things, the Act must fail. The Compact Oxford Reference Dictionary defines compensation as: “Something given to compensate for loss, suffering or injury.” Black’s Law Dictionary defines compensation in the following terms: “Payment of damages or any other act that a Court orders to be done by a person who has caused injury to another and must make the other whole.” Therefore, compensation is the concept of indemnification. Compensation, more fully and completely indemnifies a person against any loss, than damages.[See Yadava Kumar – vs – Divisional Manager, National Insurance Company Limited and another, reported in (2010) 10 SCC 341(para 17)]. In paragraph 41 of the case of Kameshwar Singh, Mahajan J. said that when the State exercised the power of eminent domain the deprived land owner had a natural right to be compensated for the loss. In the case of Bela Banerjee, Patanjali Shastri J. in paragraph 6 opined that this compensation was a “just equivalent” of the loss suffered or full indemnification for it. Such was also the view of J.C. Shah J. in paragraph 100 of the judgment in the case of Cooper. The meaning of compensation as ascribed by our courts in Mahamed Mozaharal Ahmad – vs. - Mahamed Azimaddin Bhuinya, reported in AIR 1923 Cal 507 and Rathi Menon - vs.- Union of India reported in (2001) 3 SCC 714 para 24 is “equivalent”.

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Now, when such is the meaning and interpretation given to the word compensation, what was the intention of the legislature when it used the word compensation in the impugned Act? In my judgment some meaning has to be ascribed to the use of the word “compensation”, and not the word “amount”, by the legislature in the impugned Act. Amount appears in the marginal note but when the enacting part contains the word compensation, the marginal note should be ignored or to be read as amount of compensation and no more. Being deemed to be fully conscious of the legislative and constitutional history, discussed above the legislature used the word compensation. Therefore, it is deemed to have been aware of the meaning and content of the word as judicially decided. Furthermore, it has used it in that context and with that meaning, in my opinion. Moreso because it has not used this expression in Section 5(1) relating to the amount payable to the vendors. But, after compensation it has said nothing. Is the provision to be adjudged unconstitutional because the legislature has said nothing? If the submission of Mr. Pal is to be accepted, if the legislature had just inserted an “amount” which was not illusory the defect would have been cured. At the close of his submission he brought a compilation of central and state statutes, mostly, if not wholly relating to acquisition of undertakings. It appears that in most of them there was mentioned an “amount” to represent compensation. Just because the legislature did not mention an amount or any principle for calculation of an amount, is the impugned Act invalid? My answer in an emphatic “No”. It is possible, on the basis of the above authorities to also hold that if a mechanism is provided in the Act for grant of compensation, the Court is entitled to examine the mechanism and come to its own conclusion whether the determination of compensation by that mechanism is likely to be illusory or arbitrary. It is also entitled to examine whether the procedure provided for grant of compensation is arbitrary or is just an illusion, created by the legislature, of granting compensation, without any real possibility of the deprived land owner getting compensation in accordance with law. In the impugned Act compensation is payable to the Tatas. Therefore, there is the necessary intention to pay compensation which was held to be important in the case of Rajiv Sarin & Anr. vs. State of Uttarkhand & Ors. decided by the Supreme Court on 9th August, 2011 and which is so far unreported. I have also interpreted the use of the word compensation by the legislature to mean that

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there was the intention to pay compensation according to the judicial interpretation of the word. There is also a mechanism provided in the Act for determining this compensation, namely by the District Judge Hooghly on an application made by the Tatas. I do not think that this mechanism or procedure is arbitrary or illusory or could result in such kind of a determination But, there is some vagueness and uncertainty with regard to compensation receivable which defect I propose to rectify by purposive interpretation of the provisions of the Act. I have taken great guidance from the case of SEAFORD COURT ESTATES, LTD. vs. ASHER decided by the Court of Appeal of England and reported in 1949 (2) ALL. ER. page 155. In that case the Court was interpreting the meaning of the word “burden” provided in Section 2(3) of a Rent Act of 1920. It was normally understood to mean “legal burden”. The issue involved was supply of hot water by a landlord to a tenant. If it was held to be a burden he could claim an increase of rent. Providing of water by the landlord to the tenant was not a legal burden but was a contract. The Court of Appeal comprising of Lord Greene and Lord Justices Asquith and Denning went to the extent of interpreting “legal burden” to include contractual obligations, so as to give relief to the landlord. While interpreting the word “burden” Denning L. J. in his judgment made very remarkable statements for purposive interpretation of statutes. This dictum was placed by the learned Advocate General while citing State of Bihar and others – v – Bihar Distillery Ltd. and others, reported in (1997)2 SCC 453 (paragraphs 17 to 21). This judgment pronounced that a statute carried the presumption of constitutionality. It was only to be struck down when it was not possible to sustain it by any means. The passage from Lord Justice Denning’s (later Lord Denning) judgment approved by the Supreme Court is below:

“The question for decision in this case is whether we are at liberty to extend the ordinary meaning of “burden” so as to include a contingent burden of the kind I have described. Now this court has already held in Winchester Court, Ltd. v. Miller (2), that s.2 (3) of the Act of 1920 is to be liberally construed so as to give effect to the governing principles embodied in the legislation, and I think we should do the same. Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be

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fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature. That was clearly laid down (3 Co. Rep. 7b) by the resolution of the judges [SIR ROGER MANWOOD, C.B., and the other barons of the Exchequer] in Heydon’s case (4), and it is the safest guide to-day. Good practical advice on the subject was given about the same time by PLOWDEN in his note (2 Plowd. 465) to Eyston v. Studd (5). Put into homely metaphor it is this: A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases. Approaching this case in that way, I cannot help feeling that the legislature had not specifically in mind a contingent burden such as we have here. If it had, would it not have put it on the same footing as an actual burden? I think it would. It would have permitted an increase of rent when the terms were so changed as to put a positive legal burden on the landlord. If the parties expressly agreed between themselves the amount of the increase on that account, the court would give effect to their agreement, but if, as here, they did not direct their minds to the point, the court has itself to assess the amount of the increase. It has to say how much the tenant should pay “in respect of” the transfer of this burden to the landlord. It should do this by asking what a willing tenant would agree to pay and a willing landlord would agree to accept in

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respect of it. Just as, in the earlier cases, the courts were able to assess the value of the “fair wear and tear” clause and of a “cooker”, so they can assess the value of the hot water clause and translate it fairly in terms of rent, and what applies to hot water applies also to the removal of refuse and so forth. I agree that the appeal should be allowed, and with the order proposed by ASQUITH, L.J..”

When the legislature used the word compensation, what was the amount of compensation it had in its mind? When an intention has been expressed by the legislature, to pay compensation it is permissible for the court, using the tools of interpretation as indicated in the above judgments, to ascertain such intention with some degree of precision. It is true, on the basis of my findings above, this law is one acquiring the leasehold interest of the Tatas. It is exercise of powers under List III entry 42, along with entry 18 of List II, in my opinion. The assent of the President was not taken. Therefore, in my further judgment, this Act according to the doctrine of presumption of constitutionality could not be contrary to the principles laid down in the Land Acquisition Act, 1894. To be more specific the principles for determining compensation or the amount of compensation to be awarded in the mind of the legislature could not be contrary to the Land Acquisition Act, 1894. If it was contrary, the impugned Act would be void on the ground of repugnancy with the above Act, under Section 254(2) of the Constitution. In my reading of the principles for award of compensation contained in the Land Acquisition Act, 1894 enshrined in paragraph 23 and 24 thereof, they provide more or less a just equivalent of the loss suffered by a land loser. The definition of land in section 3(a) includes land, and things attached to earth or permanently fastened to anything so attached. Section 23 provides the matters to be considered in determining compensation and Section 24 provides the matters not to be considered. Therefore, when the legislature used the word “compensation”, it intended these principles to be incorporated also. I consider the age old principle that the constitutionality of an Act is to be presumed, as it represents the will of the people or at least the majority of the people expressed through the legislature. Furthermore, the Act has to be interpreted by the Court so as to uphold it.. When all attempts to uphold the Act fail should the Court strike it down. (see Government of Andhra Pradesh – vs – P. Laxmi Devi, reported in (2008)4 SCC 720 (paragraph 38 onwards) Therefore, there is no reason for striking down this Act for the reason that it does not provide the ‘amount’ of compensation or the ‘principles’ for calculation of this amount.

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For the above reasons, I would declare that the legislature by using the word compensation meant compensation based on the principles mentioned in sections 23 and 24 of the Land Acquisition Act, 1894, as applicable. In view of my findings above, I would only add that reference to land in Section 23 necessarily refers to land as defined in Section 3(a) of that Act, inclusive of all interests therein. Date of notification is to be taken as date of vesting. I notice that these principles are specifically recognised in earlier statutes of the same legislature - West Bengal Land (Requisition and Acquisition) Act, 1948 and West Bengal Land Development and Planning Act, 1948 for grant of compensation. Furthermore, to bring the payment of compensation, within the principles of the Land Acquisition Act, 1894, the State, should in its rejoinder to the application claiming compensation under Section 5(2) of the impugned Act, compute and indicate the compensation, admitted by it to be payable and offer to pay it to the Tatas immediately, pending final determination by the District Judge. The District Judge, it is expected will make a final determination within six months from the date of filing of an application by the Tatas before it. Thus, the argument that the impugned Act is repugnant to the Land Acquisition Act, and hence, unconstitutional does not stand. At this stage, a line of submissions by the state has to be disposed of. Various Acts were placed before me for the state to show that thereunder there was vesting of tenancy in the government and taking of possession by them without payment of compensation. I was shown the West Bengal Government Premises (Tenancy Regulation) Act, 1976 together with the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962. These Acts were also shown to convince me that under it the tenant was required to forthwith restore possession to the government and so, the impugned Act followed precedent. I am unable to accept this contention. First of all, there was no acquisition by the above Acts. The Acts provided for issuance of a notice after which the tenancy was extinguished. In my opinion this is quite different from the impugned Act where a ninety years lease is sought to be extinguished. Secondly, a lease is an estate in land. When this long estate of ninety years is extinguished as a result of which the lessor gets his property, it is quite difficult to think that such an exercise is not acquisition of a substantial interest in landed property, as discussed above. This cannot be placed on the same footing as a monthly tenancy of government premises created by letting them out to individual persons for primarily residential purposes. Extinguishment of a monthly tenancy which is of negligible value cannot be equated with extinguishment of such a long lease.

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Next, I was shown the West Bengal Land (Requisition and Acquisition) Act, 1948. Requisition is a temporary taking over of possession. When land was acquired under the West Bengal Land (Requisition and Acquisition) Act, 1948, compensation was payable under Section 7 thereof, according to the principles of Section 23 and 24 of the Land Acquisition Act, 1894. I noted the submission made on behalf of the State-respondents that the validity of this Act was upheld by the Supreme Court of India. In the West Bengal Land Development and Planning Act, 1948 similar principles were to be applied, as provided in Section 8 of the Act. I do not know why the Calcutta Thika Tenancy Act, 1949 was cited. First of all it was a pre Constitution Act. Secondly, it provided for “incidents” of thika Tenancies, the grounds for eviction, surrender, abandonment, etc. This Act was nothing but an Act to regulate certain kinds of private tenancies and no element of acquisition was involved in the Act. PARTING OBSERVATION When the Tatas had stated in their letter dated 28th September, 2010, mentioned in the statement of objects and reasons for the impugned Act, that they had withdrawn from the project and that they were considering permanent withdrawal from the site if compensation was provided, I do not think that acquisition of this land by the State for the public purpose disclosed in the impugned Act, can be called arbitrary legislation. More so, when it was stated in the letter that the Tatas had no activity in contemplation to be undertaken at the site. Furthermore, for this reason it cannot be said that this legislation was targeted at a particular person or corporate body to victimise it. A single person legislation is not unknown in our country. It is permitted if there is sufficient basis. ( see Charanjit Lal Chowdhury – vs – The Union of India, reported in AIR (38) 1951 SC 41 and Dharam Dutt and others – vs – Union of India and others, reported in (2004)1 SCC 712). Exercise of the power of eminent domain, in such a situation cannot be called arbitrary or illegal or without basis. CONCLUSIONS In view of the discussion above:

(a) The Singur Land Rehabilitation and Development Act, 2011 is held to be constitutional and valid. The Singur Land Rehabilitation and Development Rules, 2011 are also held to be constitutional and valid. So is, any action taken by the state, thereunder.

(b) The above Act was not wholly an exercise of the power of the state legislature under entry 18 of list II of the seventh schedule to the

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Constitution of India, but, was also an exercise of its power under entry 42 of list III. Hence, there was acquisition of land leased out to the Tatas.

(c) Sufficient public purpose for making such acquisition is made out in the above Act.

(d) There is a provision in Section 5(2) of the above Act for award of compensation by the District Judge, Hooghly on an application made by the Tatas. Although, there is an intention expressed by the legislature, to pay compensation, the intention expressed is vague and uncertain. Therefore, this Court has made an interpretation of this provision in the foregoing part of this judgment. According to the interpretation made by this Court compensation is to be awarded by applying the principles for award of compensation enshrined in Sections 23 and 24 of the Land Acquisition Act, 1894, as applicable, which are deemed to be incorporated into Section 5(2) of the impugned Act, by reading land as provided in those sections with the definition section of that Act and by taking the date of notification provided in the said sections as the date of notification of the impugned Act. Furthermore, the application has to be determined by award of compensation by the District Judge, Hooghly, within six months of making such application by the Tatas. Furthermore, if the government admits any compensation in its rejoinder to the application to be filed by the Tatas, the government should pay that compensation immediately, since it has taken possession of the land.

(e) The District officials have exceeded their powers in taking possession of the land without any notice to the Tatas and acting so hastily as discussed in the foregoing part of this judgment. Therefore, the District Magistrate and the Superintendent of Police, Hooghly are appointed and constituted as Joint Special Officers by this Court, in addition to their official duties, to ensure safe and smooth transition of this land from the Tatas to the State, by carefully and scrupulously taking all necessary steps so that the Tatas are allowed to remove their items if any that remain on the land, after making an inventory thereof to be signed by them as well as by a representative of the Tatas within a period of two months from this date, including the period of stay of this order.

(f) Both the writ applications are disposed of. (g) I make it clear that this decision is confined to issues decided between the

parties. (h) As the issues involved are most contentious between the parties, I am of

the opinion that any aggrieved party should be given a chance to test this judgment and order in appeal. Moreover, very shortly, the Puja vacation of this Court will start and this Court will reopen only on 31st October, 2011. Of course, there will be a Vacation Bench. But, I do note that most of the lawyers utilise this holiday for being on vacation. Therefore, for the ends of justice I order unconditional stay of this judgment and order till 2nd November, 2011.

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All parties and the District Magistrate, Hooghly and the Superintendent of Police, Hooghly are to act on an authenticated photo plain copy of the judgment and order, subject to the undertaking to apply for and obtain a certified copy or a certified photo copy of this judgment and order.

(I.P. MUKERJI, J.) . Later I clarify the stay granted by me today by saying that this judgment and order is not to be construed as a “further order” in terms of the order of the Hon’ble Supreme Court of India dated 29th June, 2011 in SLP (C) No. 16521 of 2011 ( Tata Motors Limited and another – vs – State of West Bengal and others.

(I.P. MUKERJI, J.)