Judgment:
Altamas Kabir, J.
1. The petitioners claim to be the owners of various plots of land, popularly known as 'Dharampur Camp Site', situated a Mouza Palasi, under Bijpur Police Station, in the district of Nadia (formerly district North 24 Parganas).
2. According to the petitioners, the said lands measured approximitely 59.93 acres, of which an area comprising 51.90 acres was proposed to be acquired under the Land Acquisition Act 1894, hereinafter referred to as 'the 1894 Act', for the purpose of Kalyani University. The remaining 2 acres of land has been left out of the acquisition proceedings for reasons best known to the authorities.
3. It is the petitioners' case that there are about eighty permanent structures located on the said lands, which are used mainly for accommodating the staff of the said University, along with a large number of fruit-bearing and other trees.
4. It appears that the said Dharampur Camp site was requisitioned by the Government of India under Case No. L.A. (viii)/246 of 1943-44 sometime in the year 1944 during the Second World war for accommodating military personnel. Even after the war and after India became independent, the lands were not derequisitioned, but continued to be under the possession of the of the Government for different purposes.
5. After the Kalyani University was established, the lands and the structures thereupon were used for accommodating the students and staff of the University and other purposes.
6. It is the further case of the petitioners that the lands in question were acquired by the petitioners Nos. 1 and 2 and their deceased elder brother, Provangsu Kumar Sett, although, the said lands continued to be under requisition and possession of the Government. Subsequently, Provangsu Kumar Sett died in the year 1952 leaving behind his widow, the petitioner No. 4 herein, and his minor son, being the petitioner No. 3 herein. Provangsu Kumar Sett left a Will by which he bequeathed his entire estate and interest to his minor son and appointed the petitioners Nos. 1 and 2 as Executors and the petitioner No. 4 as the Executrix of his estate, till the petitioners No. 3 attained majority.
7. The petitioner No. 3 having attained majority before the filing of the writ petition, the Executors and Executrix have been released and the petitioner No. 3 has become the absolute owner of the estate of his late father.
8. It appears that the petitioners had all along been receiving rent compensation at the rate of Rs. 7,156-37/P. per annum for the entire property and such rent compensation was paid till the year 1981-82. According to the petitioners, the annual rent compensation has remained unpaid since then.
9. It appears that by a notification dated 19th October, 1963, issued under Section 4 of the 1894 Act, it was notified that, according to the Government, the above-mentioned 51.90 acres of land, belonging to the petitioners, was likely to be needed for a public purpose, namely, for Kalyani University. The said notification was followed by a declaration under Section 6 of the said Act dated 6th January, 1969, whereby it was declared that the Government was satisfied that the land in question was needed for the said purpose. .
10. By a notice under Section 9 of the said Act dated 12th January, 1970, the petitioners were directed to submit their claim to compensation for the purpose of making the award on the basis of the declaration dated 6th January, 1969, referred to above.
11. As the petitioners had no objection to such acquisition, they submitted their joint claim for compensation on 24th March, 1990, in Case No. L.A. 4/129 of 1962-63, mentioned in the said notice under Section 9 of the said Act. According to the petitioners, the respondent authorities, thereafter, took no further steps for finalisation of the award and for completing the acquisition proceedings. All of a sudden by a fresh notice under Section 9 of the said Act dated 17th July, 1986, the petitioners were directed to submit fresh claims for compensation in respect of the said lands.
12. It also appears that, although, the second set of notices under Section 9 of the said Act were issued on the basis of the declaration dated 6th January, 1969, in the said notices a totally new public purpose and a different acquisition case number was mentioned. In the second set of notices under Section 9 of the said Act, the public purpose was shown to be in connection with the requirement of Bidhan Chandra Krishi Viswavidadaya in place of Kalyani University.
13. Despite having submitted their claims earlier on the basis of the first set of notices under Section 9 of the said Act, the petitioners submitted a fresh claim for compensation on 16th August, 1986, on the basis of the second set of notices under Section 9 and a supplementary claim was also submitted on 30th August, 1986. Acrording to the petitioners, the second joint claim for compensation was made through inadvertence since the petitioner No. 2, who was looking after the matter on behalf of the other clai- mants, failed to notice that the second set of notices which had been issued 15 years after the first set, were in connection with a land acquisition case for which no notification or declaration had been issued in terms of Section 4 and Section 6 of the 1894 Act.
14. It appears that pursuant to the claims submitted by the petitioners, an award was made on 17th September, 1986, which fact was not known to the petitioners when the writ application was moved on 30th September, 1986. Subsequently, by an order passed in the writ proceedings on 24th November, 1988, it was directed that if the award had been made, then payment on the basis thereof was to be made to the petitioners within a period of four weeks, without prejudice to the right and contentions of the parties at the time of final hearing of the writ application. It appears further that pursuant to the said order the petitioners received their share of the compensation money, as awarded, without prejudice to their rights and contentions in the writ application.
15. Appearing in support of the writ application, Mr. Tarun Roy, learned Advocate, firstly urged that once the lands were notified to be needed for Kalyani University in 1963 and was declared to be necessary for the use of the said University in the year 1969, it could not again be lawfully acquired for a different public purpose for a completely new University, seventeen years after the said declaration had been made, without first abandoning the earlier acquisition proceedings and putting a formal and thereto and issuing a fresh notification under Section 4 of the 1894 Act.
16. Mr. Roy urged that while the earlier notification and declaration had been made in connection with Land Acquisition Case No. L.A. 4/129 of 1962-63, the same was not completed as no award was made therein, and, on the other hand, an award was made in Land Acquisition Case No. D1 of 1986-87 for a completely different public purpose, without publication of any notification under Section 4 and/or declaration under Section 6 of the said Act.
17. Mr. Roy urged that the award subsequently made in connection with the acquisition for the purpose of Bidhan Chandra Krishi Viswavidyalaya was, therefore, without jurisdiction and violated not only the provisions of the 1894 Act but the provisions of Article 300A of the Constitution also.
18. Mr. Roy contended that the petitioners could not be deprived of their property save by authority of law and since there could be no estoppel against the Constitution, the petitioners would be entitled to the protection of Article 300A thereof, notwithstanding the fact that they had submitted fresh claims on the basis of the second set of notices under Section 9 of the 1894 Act.
19. In this regard, Mr. Roy referred to and relied upon the observations made by the Supreme Court in Olga Tellis v. Bombay Municipal Corporation AIR 1984 SC 180 that the principle of estoppel had no application in assertion or enforcement of a fundamental right under the Constitution, as no individual could barter away the freedoms conferred on him by the Constitution.
20. Mr. Roy also urged that the public purposes mentioned in the two sets of notices under Section 9 of the 1894 Act, were for different purposes. While, on the one hand, under the Katyani University Act, 1981, the University was reconstituted for advancement of higher education in various branches of learning, Section 5 of the said Act stipulates that the powers of the University shall not extend beyond four police stations namely, Kalyani, Chakdah, Haringhata and Bijpur, subject only to the exception mentioned in sub-section (3) thereof. Mr. Roy urged that the Kalyani University is, therefore, a purely academic University having a very limited operational area, which was in existence when the award was made in 1986. According to Mr. Roy, the lands at best have been acquired on the basis of the declaration dated 6th January 1969, for the purposes of the Kalyani University, but not for the Bidhan Chandra Krishi Viswavidyalaya.
21. Mr. Roy contended that by virtue of Section 3 of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, a new University was constituted as a body corporate having perpetual succession and a common seal. It would appear from the said Act that the new University was being constituted as a full-fledged Agricultural University with a view to having substantial assistance from the Indian Council for Agricultural Research for the purpose of developing it into a centre for research in the field of agriculture.
22. It was urged by Mr. Roy that in Section 3(f)(vi) of the 1894 Act the expression 'public purpose' includes carrying out of any educational scheme sponsored by any authority established by the Government. According to Mr. Roy, as the Kalyani University and the Bidhan Chandra Krishi University are two different authorities established by the different statutes by the Government for carrying out completely different educational schemes, the purpose of acquisition of land for one University could not be equated with the purpose of acquisition for the other.
23. In support of his aforesaid contention, Mr. Roy referred to the decision of the Supreme Court in Khub Chand v. State of Rajasthan, reported in : [1967]1SCR120 , wherein it was observed that the provisions of sions of the statute which empowered the Government to acquire land should be strictly construed. Mr. Roy urged that once a declaration is made under Section 6 of the 1894 Act, it is no longer open to the Government to divert the land for a public purpose other than that for which it was initially intended.
24. In this regard, Mr. Roy also referred to another decision of the Supreme Court in H.D. Vora v. State of Maharastra : [1984]2SCR693 , where it was held that, although, the public purpose was not required to be recited in the order of requisition, the Government would have to establish such public purpose by showing the relevant facts.
25. As an alternative argument, Mr. Roy: contended that even if it is assumed that the lands in question could be validly acquired for the new University based on the declaration dated 6th January, 1969, there is no explanation whatsoever for the delay of 17 years in making the award and completing the acquisition proceedings.
26. Mr. Roy urged that after a period of 23 years, that is, going back to the date of the notification published under Section 4 of the 1894 Act, it would be entirely unjust, arbitrary and unreasonable to assess compensation on the basis of such notification, altthough, in fact, the acquisition proceedings were being completed 23 years thereafter. Mr. Roy submitted that this amounted to denial to the petitioners of their right to equality of treatment and equal protection of the laws under Article 14 of the Constitution.
27. Mr. Roy submitted that the Supreme Court had frowned upon the practice of leaving long gaps between the different stages of the acquisition proceedings when there was a permanent need of the property to be acquired, as the same disclosed lack of bona fides on the part of the acquiring authorities. In this regard, Mr. Roy relied upon the decision of the Supreme Court in Deepak Pahwa v. Lt. Governor of Delhi : [1985]1SCR588 , wherein the Supreme Court was considering a case where publication and public notice was separated by a long interval of time.
28. Mr. Roy contended that in the case of Chandra Bansi Singh v. State of Bihar : [1985]1SCR579 a delay of two years was considered by the Supreme Court to be sufficient for awarding additional compensation.
29. Mr. Roy urged that in order to prevent inordinate delays in finalising and completing acquisition proceedings, the Legislature had added Section 11A to the 1894 Act which provided for completion of acquisition proceedings within a period of two years after which the proceedings would be deemed to have been abandoned. Mr. Roy urged that, although, the benefit of Section 11A was not available prior to 1984, and the Award in this case was made in 1986, within the stipulated period of two years, the Court should drew an analogy and quash the acquisition proceedings and the Award made therein twenty three years after the publication of the notice under Section 4 of the 1894 Act.
30. Mr. Roy then submitted that the petitioners were not objecting to the acquisition of the lands in question, but to the manner in which the same was being effected.
31. Mr. Roy referred to the sentiments expressed by the Supreme Court in Ajoy Hasia v. Khalid Nejis : (1981)ILLJ103SC that wherever there is arbitrariness in State action, either of a legislative or executive nature, Article 14 of the Constitution springs into action and strikes clown such, State action.
32. Mr. Roy submitted that the concerned authority should be directed to withdraw from the acquisition in terms of the declaration published under Section 6 of the 1894 Act on 6th January, 1969, and to proceed afresh in accordance with law, if the lands were required for the use of the Bidhan Chandra Krishi Viswavidyalaya.
33. Opposing the writ application, Mr. A. C. Maitra urged that continuity of the acquisition proceedings, which were initially commenced for the purpose of Kalyani University, had been maintained even after the enactment of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, by virtue of Section 41 thereof.
34. Since the main thrust of Mr. Maitra's submissions is dependent on the said provisions, the same is reproduced hereinbelow for the sake of convenience.
'41. TRANSFER OF COLLEGES TO THE UNIVERSITY.
(1) Notwithstanding anything contained in any other law, on and from the appointed day the College of Agriculture, Kalyani, shall stand disaffiliated from the Kalyani University and the Bengal Veterinary College, Calcutta, stand disaffiliated from the University of Calcutta and transferred to the University as its constituent Colleges.
(2) On and from the appointed day the control and Management of the Colleges specified in Sub-section (1), and all properties, assets and liabilities in relation thereto shall stand transferred to and vest in the University.
(3) Notwithstanding the foregoing provisions of this section, the Campus of the Bengal Veterinary College, Calcutta, at Belgachia, which stands transferred to and vests in the University on and from the appointed day, shall continue to vest in the University till the Faculty of Veterinary and Animal Sciences is finally transferred from the campus of the Bengal Veterinary College, Calcutta, at Belgachia, to the campus of the University, and upon such transfer, the campus of the Bengal Veterinary College Calcutta, at Belgachia shall stand transferred to and vest in the State Government in the Department of Animal Husbandry and Veterinary Services'.
35. Mr. Maitra urged that the Kalyani University all along had a College of Agriculture, along with other academic branches. In or about the year 1974, the State Government decided to convert the said University into a University only for Arts, Sciences and other allied subjects, and to establish a separate full-fledged Agricultural University for the State which would be comprised of, inter alia, the Faculty of Agriculture of the Kalyani University and the Bengal Veterinary College, Calcutta, at Belgachia.
36. The above thought-process of the State Government was translated into the Bidhan Chandra Krishi Viswavidyalaya Act, 1974 (West Bengal Act 49 of 1974).
37. Mr. Maitra urged that the very language of the Statement of Object and Reasons for the said Act and Section 41 of the said Act makes it abundantly clear that the College of Agriculture, Kalyani, and the Bengal Veterinary College, Calcutta, were to form the nucleus of the Bidhan Chandra Krishi Viswavidyalaya.
38. Mr. Maitra laid special stress on Sub-Section (2) of Section 41 of the said Act and urged that on and from the appointed day, nemely, 1st September, 1974, the control and management of the colleges specified in sub-section (1), and all properties, assets and liabilities in relation thereto, stood transferred to and vested in the new University.
39. Mr. Maitra sought to urge that in the aforesaid background the public purpose for utilisation of the lands in question either for the Kalyani Univerrsity or the Bidhan Chandra Krishi Vidyalaya, was the same, as the purpose for acquisition of the land in either case was for development of agriculture.
40. Besides the provisions of Section 41 of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, Mr. Maitra also drew the attention of the Court to Sections 42, 47 and 48 thereof, which provides for students of any of the Colleges specified in Sub-section (1) of Section 41 to complete their course of study in the Bidhan Chandra Krishi University and for transfer of various assets of Kalyani University for the proper functioning of the Bidhan Chandra Krishi Viswavidyalaya, keeping in view the overall interests of both the Universities.
41. Mr. Maitra submitted that provision was even made under Section 49 for transfer of all members of the Faculty of Agriculture of the Kalyani University to the Bidhan Chandra Krishi Viswavidalaya on and from the appointed day.
42. Mr. Maitra urged that the object of the two Universities for utilisation of the lands were the same, and it was, therefore, necessary to consider the substance and not the form as far as the acquisition proceedings were concerned, notwithstanding the enactment of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, causing bifurcation of the Kalyani University and the setting up of a totally new University with the Faculty of Agriculture of the Kalyani University and the Bengal Veterinary College, Calcutta, as its nuclei.
43. Restating the facts relating to the publication of the notification under Section 4 and the declaration under Section 6 of the 1894 Act, Mr. Maitra sought to urge that neither the notification nor the declaration indicates that the lands were needed for any purpose other than for the College of Agriculture connected with the Kalyani University and Form No. 9 was issued accordingly, but in relation to the Bidhan Chandra Krishi Viswavidyalaya. Mr. Maitra submitted that by an order dated 17th July, 1986, it was decided to pay a sum of Rs. 95,053.88 in respect of the land originally used by the Kalyani University. According to Mr. Maitra, pursuant to the said notification and notice dated 12th January, 1970, the petitioners filed a claim for Rs. 4,63,840/- on 24th March, 1970 and an award was made on 17th September, 1986, for Rs. 94,259.41.
44. Mr. Maitra urged that after receiving the aforessaid amount, the petitioners filed the instant writ petition claiming that the acquisition of the land in question for the Bidhan Chandra Krishi University was completely different from that of the original public purpose for which the lands had been notified under Section 4 of the 1894 Act.
45. Mr. Maitra urged that the public purpose indicated in the notification and declaration, nemely, for the use of the Kalyani University, would apply mutatis mutandis in the case of Bidhan Chandra Krishi Viswavidyalaya also, in view of the above-mentioned provisions of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974. Mr. Maitra urged that the public purpose indicated in the said notice and declaration could not be given a restricied meaning and its interpretation would have to be considered in the prespective of the initial purpose which merged with the subsequent purpose upon the creation of the Bidhan Chandra Krishi Viswavidyalaya.
46. Mr. Maitra contended that, in any event, it was not for the Court to convert the writ petition into an appeal and to look into the decision making process for the purpose of judicial review. Mr. Maitra submitted that in the instant case there is nothing on record which even faintly suggests that even after bifurcation of Kalyani University the land was required for any purpose other than for the College of Agriculture. Mr. Maitra urged that there was continuity of action and the acquisition proceedings related to the same purpose in both the cases, which was recognised under Sections 41 to 48 of the Bidhan Chandra Krishi Viswavidyayaya Act, 1974.
47. Mr. Maitra urged that it must be held that the public purpose which was initially for Kalyani University, merged with the public purpose for the Bidhan Chandra Krishi Viswavidalaya and could not be separatd and treated as two different purposes necessitating the abandonment of the first proceeding and the commencement of a fresh proceeding under the 1894 Act.
48. In respect of his aforesaid contention., Mr. Maitra firstly relied on the decision of the Supreme Court in State of U.P. v. Dharmendra Prasad Singh, reported in : [1989]1SCR176 , wherein it was held that judicial review under Article 226 of the Constitution could not be converted into an appeal and judicial review was meant to be directed not against the decision taken by the concerned authority, but do examine the decision-making process.
49. In this regard, Mr. Maitra also referred to and relied upon a Single bench decision of this Court in Central India Industries Limited v. I.T.O., reported in : [1990]184ITR242(Cal) , and a decision of the Kerala High Court in P.S. Menon and Ors. v. Corporation of Calicut and Ors, reported in : AIR1995Ker136 , wherein it was observed that the writ court should not ordinarily go into questions of fact unless there was something on record which manifestly showed that the decision impugned was preverse or unless mala fide was proved. It was further observed that the writ court should not interfere on ground of mere technicalities.
50. Mr. Maitra urged that in the absence of any allegation of mala fide and/or perversity, this Court should not interfere with the impugned award.
51. Mr. Maitra then urged that having once submitted their claim on 4th August, 1986, and having filed a supplementary claim on 30th August, 1986, it was no longer open to the petitioners to challenge the award passed after filing of such claim. In effect, Mr. Maitra urged that the writ petitioners could not be allowed to approbate and reprobate in the same breath. Mr. Maitra urged that the petitioner No. 2, who was looking after the case on behalf of the other writ petitioners, was physically and mentally fully alert and the plea taken of his inability to distinguish between the two sets of notices under Section 9 was nothing but on afterthought and was not capable of being believed.
52. On the question of estoppel, Mr. Maitra contended that ignorance of law could not be used as a justification for application of the said principle.
53. Mr. Maitra then referring to an observation from Salmond on Jurisprudence, which runs as follows :-
'For one task of jurisprudence is to link law with other disciplines and so help to locate it with its wider social concept'.
54. Mr. Maitra usged that in analysing a legal concept an attempt must be made to do so against a background of social development and changing economical and political attitudes viewed in the concept of modern jurisprudence. Mr. Maitra urged that in such circumstances the petitioners could not take the plea of absence of knowledge in a case of this nature.
55. Mr. Maitra also submitted that it was settled law that when substantial justice is pitted against procedural law, substantial justice is to be given due preference. Mr. Maitra urged that since the instant case was in respect of a public purpose, substantial justice was to be preferred for the purpose of resolving the disputes raised in the writ application.
56. In this connection, Mr. Maitra referred to and relied upon the decision of the Supreme Court in the case of Tata Cellular v. Union of India, reported in : AIR1996SC11 .
57. In support of his submissions regarding the necessity of considering the substance and not the form of the acquisition proceedings, Mr. Maitra submitted that it could not be denied that the Government had decided to establish a fullfledged Agricultural University by taking out the Faculty of Agriculture from the Kalyani University and merging the same with the Bengal Veterinary College, Calcutta. Mr. Maitra urged that keeping the above in mind, the provisions of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, made provision for vesting the possessory rights in the lands acquired for Kalyani University in the Bidhan Chandra Krishi Viswavidyalaya. According to Mr. Maitra, the substance of activities for which the land was proposed to be acquired, remain the same, although, the said lands are now to be used by a separate authority carved out of Kalyani University in whose favour the lands were initially to be arquired.
58. Mr. Maitra referred to a Bench decision of this Court is the case of Registrar, Jadavpur University v. Smt. Alka Hemani and Ors., reported in : AIR1991Cal140 . Mr. Maitra urged that in his concurring judgment, A. M. Bhattacharjee, J. as his Lordship then was observed that in interpreting statutory provisions a purposeful approach was replacing a purely literal approach. Mr. Maitra also referred to the observation of Sir John Dolandar M.R. in R. v. Monopolies and Merger Commission, quoted with approval by the Supreme Court in the Tata Cellular case (supra), namely.
'We have to approach our duties with a proper awareness of the needs of public administration'.
59. Mr. Maitra urged that good public administration is concerned with substance rather than the form.
60. In this connection, Mr. Maitra also referred to the decision of the Supreme Court in Hazarimal Kuthiala v. Income Tax Officer, reported in : [1961]41ITR12(SC) , wherein the Supreme Court observed that exercise of power by an administrative authority would be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it would be nugatory.
61. On the question of whether a restrictive meaning could be given to a public purpose, Mr. Maitra referred to the observations of a Division Bench of this Court in State of West Bengal v. Shefali Roy and Ors., reported in 1995 (1) CHN 1, that the purpose of requisition need not be articulated in detail and that once the purpose of requisition is held to be a public purpose, the Court was no longer required to go into the question as to whether there was any nexus between the purpose of requisition and the public purpose, and the question of mala fide could not be raised at such stage.
62. On Article 300A of the Constitution, Mr. Maitra referred to the decision of the Supreme Court in the case of Keshavananda Bharati v. State of Kerala, reported in : AIR1973SC1461 , and urged that there is no disharmony between the directive principles and fundamental rights in the Constitution and that they supplement each other to bring about a social revolution and the establishment of a welfare State, which is also envisaged in the Constitution.
63. Mr. Maitra submitted that the decision in the case of H.D. Vora (supra), cited by Mr. Roy, had no application to the facts of the instant case, inasmuch as, the public purpose for acquisition of the land was a continuing process. Mr. Maitra contended that not only is there a definite nexus between the process of acquisition of the land in question and the object to be achieved thereby, but there was a continuity in the said proceedings, as a result whereof, it was not open to the petitioners to question the same and/or the award passed therein.
64. Replying to Mr. Maitra's submissions, Mr. Roy urged that the decisions cited by Mr. Maitra had little or no application to the facts of the instant case. Mr. Roy urged that though the principle laid down in the Tata Cellular case (supra) to the effect that the Court should not interfere with an administrative decision which may lead to increase in unbudgeted expenditure, may be plausible, it could not absolve the writ court of its duty to enforce the rights of a citizen under the Constitution.
65. Mr. Roy submitted that the decision in the Tata Cellular case given on a completely different set of facts, and, therefore, no comparison could be drawn between the said case and the instant case and any attempt to apply the principles laid down in the former case to the instant case would be wholly inappropriate.
66. Mr. Roy submitted that in fact the decision in Maharaja Dharmendra's case supported the case of the petitioners, since in the instant case the decision-making process for acquisition of the land, as laid down in the 1894 Act, had not been followed, which entitled the writ Court to examine such decision-making process while judicially reviewing the same.
67. Referring to the Bench decision of this Court in the Jadavpur University Case, cited by Mr. Maitra, Mr. Roy submitted that while interpreting the proviso to Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act of 1948 it was observed that where the very purpose of the requisition of the land, though already in the occupation of an educational institution, is not at all to deprive the institution of its use and occupation, but to further secure its possession, on the basis of a statutory requisition, the prohibition envisaged in the said proviso would stand outweighed. Mr. Roy submitted that in the instant case the question of literal approach to the provisions of the statute did not arise, and, on the other hand, the land which; is under the possession of the new University should be acquired for the new University in accordance with law.
68. Mr. Roy urged that the decision in P. N. Menon's case (supra) virtually supported the petitioner's case, since it has been held therein that with the changes in the situation and development of new contingencies the Government was entitled to issue a fresh notification under Section 4(1) of the 1894 Act. Mr. Roy urged that even it was held that the second notice under Section 9 of the 1894 Act had the effect of superseding the earlier notice under Section 9 thereof, the legal infirmities would still remain, inasmuch as, the declaration under Section 6 was in favour of Kalyani University while the second notice under Section 9 was in respect of the new University.
69. Mr. Roy urged that in any view of the situation, the earlier proceedings had to be brought to an end and new proceedings should be commenced after issuance of a fresh notification under Section 4 of the 1894 Act for the benefit of the Bidhan Chandra Krishi Viswavidyalaya.
70. From the submissions made on behalf of the respective parties and the materials on record, it would seem that the principal question for decision is whether the acquisition proceedings, which had been commenced for the benefit of the Kalyani University, could be continued for a different University which had been carved out of the former University. The main question raised on behalf of the writ petitioners as to whether an acquisitions proceeding initially commenced in favour of one authority could be continued for the purpose of a different authority, depends on the outcome of the answer to the said question.
71. There is no dispute that the acquisition proceedings were commenced on the basis of a notification dated 19th Oct. 1963, published under Section 4 of the 1894 Act. There is also no dispute that a declaration dated 6th January, 1969, was published under Section 6 of the said Act containing the Government's satisfaction that the land in question was needed for a public purpose, that is, for the use of the Kalyani University.
72. There is also no dispute that by a notice dated 12th January, 1970, under Section 9 of the said Act, the petitioners were directed to submit their claim to compensation for making the award on the basis of the aforesaid declaration dated 6th January, 1969.
73. As has been urged on behalf of the writ petitioners, as they had no objection to such acquisition, they submitted their joint claim for compensation on 24th March, 1970, but the respondent authorities did not take steps to complete the acquisition proceedings by making the award and taking further steps under Section 16 of the said Act.
74. On the other hand, by a second notice dated 17th July, 1986, under Section 9 of the said Act, the petitioners were once again directed to submit their claim for compensation in respect of the lands forming the subject matter of the writ petition.
75. It may not be out of place to mention at this stage that the second notice under Section 9 appears to have been made also on the basis of the above-mentioned declaration dated 6th January, 1969. However, in the second set of notices, the public purpose was shown to be different from that indicated both in the notification under Section 4 and the declaration under Section 6 of the 1894 Act dated 6th January, 1969. While initially the reason given for proposed acquisition of the lands in question was that the same was required for the use of the Kalyani University, in the second set of i notices under Section 9, it was indicated that the said lands were required 'o for the Bidhan Chandra Krishi Viswavidyalaya, which was created by an independent statute and was a separate entity from the Kalyani University.
76. While the nature of use for which the lands were proposed to be acquired may have been similar, or even the same, the object for the proposed acquisition in the two sets of notices are different. The use of the land by Kalyani University cannot be equated with its' use by another University.
77. In this situation, the provisions of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, referred to by Mr. Maitra in the course of his submissions, become relevant.
78. In the Statement of Object and Reasons for the enactment of the said Act, it has been mentioned that the bifurcation of the Kalyani University into a new University for Arts, 'Science and Allied subjects and a separate full-fledged Agricultural University with the Faculty of Agriculture of the Kalyani University as its nucleus was under the contemplation of the Government of West Bengal for some time past. Accordingly, it was decided to enact the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, to give effect to the said proposal.
79. Chapter IX of the said Act deals with transfer of Colleges and Employees' Provident Fund, having regard to the fact that the new University was to be comprised of the former Faculty of Agriculture of Kalyani University and the Bengal Veterinary College, Calcutta at Belgachia.
80. Section] 41 of the said Act, which has been reproduced hereinbefore, provides that notwithstanding anything contained in any other law, on and from 1st September, 1974, the College of Agriculture, Kalyani, stood dis-affiriated from the Kalyani University and the control and the management of the said college and all its properties, assets and liabilities in relation thereto stood transferred to and vested in the new University.
81. By virtue of Section 42 of the said Act, every student of either the College of Agriculture, Kalyani, or the Bengal veterinary College, Calcutta, who immediately before 1st September, 1974, was studying in such college, would be permitted to complete his course of study under the new University. Sections 44 and 45 make provision for transfer of some of the employees of the Kalyani University to the new University, along with their accumulations of Provident Fund.
82. Chapter XI of the 1974 Act deals with the division of assets and transfer of employees of the Kalyani University. Section 47 thereof deals with the division of assets and transfer of employees of the Kalyani University to the Bidhan Chandra Krishi Viswavidyalaya as was considered necessary for the proper functioning of the new University, but keeping in view the overall interest of both the Universities.
83. Section 49 made provision for transfer of all the members of the teaching and non-teaching staff of the Faculty of Agriculture of the Kalyani University to the Bidhan Chandra Krishi Viswavidyalaya with effect from 1st September, 1974.
84. The said provisions undoubtedly provide for continuity of the activities of the College of Agriculture. Kalyani, and the Bengal Veterinary College, Calcutta, during the period of transition from the Kalyani University to the Bidhan Chandra Krishi Viswavidyalaya and ensures that the students already enrolled in the College of Agriculture, Kalyani, were not prejudiced in any way as to the continuation and completion of their respective courses in the said colleges. For the said purpose, provisions were also made to ensure that the teaching and non-teaching staff of the said colleges also stood transferred to the new University and even the assets were transferred in such a manner so as to provide for the proper fuctioning of the new University. But this cannot alter the factual position that the two Universities are separate entities, having their individual statutory existence.
85. The aforesaid provisions serve to highlight the fact that the two Universities are distinct from each other and have two separate identities which necessitated the maintenance of continuity in the interest of the students of the two Colleges referred to in Section 41 of the 1974 Act.
86. Accordingly, even if the objects for which the lands were required were similar, there is little doubt that they were required for two different purposes.
87. The question which, however, arises in this context is whether by virtue of the provisions of sub-section (2) of Section 41, it can be said that with the transfer to and vesting of the properties of the two colleges, referred to in sub-section (1), in the new University, it can be contended that the object for which the lands were proposed to be acquired remain the same and consequently on fresh notification under Section 4 and/or declaration under Section 6 of the 1894 Act was necessary upon abandonment of the proceedings initially commenced for the purpose of Kalyani University.
88. Quite frankly, I fail to understand how transfer of and vesting of the assets of the College of Agriculture, Kalyani and the Bengal Veterinary College. Calcutta, in the new University, and the en masse transfer of the staff of the two Colleges to the new University, could have any nexus with the acquisition proceedings. In my view, the attempt to maintain continuity could not also cover the acquisition proceedings, since the object with which the lands were proposed to be acquired for the benefit of the Kalyani University, came to an end when the same was no longer required for the use of the Kalyani University, and the said lands were handed over to the newlyestablished Bidhan Chandra Krishi Viswavidyalaya for its use. When the lands were considered to be necessary for the use of the new University, the earlier proceedings under the 1894 Act should have been ended and a new proceeding should have been commenced. In the alternative, the lands could have been acquired for the use of the Kalyani University, as indicated in the notification under Section 4 and the declaration under Section 6 of the 1894 Act. The vesting of the lands in the new University does not alter the situation since the said lands did not belong to the Kalyani University, but were simply being used by it.
89. In my view, the continuity maintained by virtue of the provisions of Chapter IX and XI of the Bidhan Chandra Krishi Viswa Vidyalaya Act, 1974, was essentially for administrative and academic purpose to secure the smooth administration of the newly-established University, but such continuity could not cover even the earlier acquisition proceedings in its ambit, as no specific provision has been made in that regard in the said Act. Furthermore, proceedings under the 1894 Act would be dependant on the provisions of the said Act itself.
90. The submissions of Mr. Maitra in this regard lose their edge in the absence of any specific savings clause in the Bidhan Chandra Krishi Viswavidyalaya Act, 1974, which could have saved the acquisition proceedings commenced in favour of the Kalyani University. The provisions of Section 56 of the said Act do not help the case of the respondents in any way.
91. The Bench decision of this Court in the Jadavpur University case, referred to by Mr. Maitra, was given in a completely different context, and the findings therein and the observations made were in such context. In the said case, the Court had to consider the effect of the proviso to Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948, in connection with an order of requisition made under Section 3 thereof, in respect of a land under the occupation of an educational institution. I am afraid no common principle emerges in the said decision, which can be of any help to the respondents, as the facts and the law applicable to the two cases are totally different.
92. The other proposition of Mr. Maitra regarding substance rather than the form cannot also have application in this case, having regard to the provisions of Article 300A of the Constitution. The State in the exercise of the principles of eminent domain no doubt has the right to deprive a person of his property, but such deprivation can be effected only under authorty of law. In fact, in cases of acquisition of property, the concerned agencies of the State are required to follow the statutory provisions with strict rigidity, as was observed in Khub Chand's case (supra) referred to by Mr. Roy.
93. The decisions cited by Mr. Maitra in this regard do not really improve the case of the respondents. While exercise of power by an administrative authority would be referable to a jurisdiction which confers validity upon it, the same would hold good where the question as to whether an executive authority had jurisdiction to pass an order, fell for consideration. That is not so in the instant case, where any order to be passed after publication of the declaration under Section 6 of the 1894 Act, would be dependant upon the notification under Section 4 and the said declaration as well.
94. Unfortunately, in the instant case, the circumstances changed after the declaration under Section 6 was published and the lands were no longer required for the purpose mentioned in the declaration.
95. The absence of a notification under Section 4 and a declaration under Section 6, so far as the second set of notices under Section 9 are concerned, cannot be brushed aside as a mere technicality, as the award ultimately made was based on the second set of notices, where the purpose of acquisition had been altered from that indicated in the notification and declaration under Sections 4 and 6 of the 1894 Act.
96. The last contention of Mr. Maitra, that the petitioners should not be allowed to approbate and reprobate in the same breath, has some cub-stance, but one has to see whether the principle of estoppel by conduct could be invoked in the facts of this case, or, in other words, whether by submitting fresh claims on the basis of the second set of notices under Section 9, the writ petitioners were estopped from claiming that the award on the basis thereof was without jurisdiction and not in consonance with the provisions of the 1894 Act.
97. In my view, when the second set of notices under Section 9 was itself bad and without authority of law, any section taken on the basis thereof must also be held to be without the authority of law and cannot be said to have cured any initial infirmity.
98. It is not, therefore, necessary for us to go into the alternative argument advanced by Mr. Roy regarding the inordinate delay in completion of the proceedings on the basis of the notification published on 19th October, 1963.
99. The writ application must therefore, succeed on the first point. As the lands in question are no longer being used by the Kalyani University after 1974, and have been handed over to the Bidhan Chandra Krishi Viswavidyalaya for its use, the proceedings for their acquisition for the benefit of Kalyani University, namely, Case No. LA 4/129 of 1962-63, must be held to have been abandoned. Consequently, all orders, including the award made therein, must be held to be without jurisdiction and are, accordingly, quashed. In the changed scenario after the enactment of the Bidhan Chandra Krishi Viswavidyalaya Act in 1974, and the fact that the lands are now being used and possessed by the Bidhan Chandra Krishi Viswavidyalaya, the quashing of the said proceedings will not, however, prevent the authorities from proceedings afresh to acquire the lands for the use for the Bidhan, Chandra Krishi Viswavidyalaya, if they so desire, in accordance with law.
100. Since the lands continue to be under the use and possession of the new University, the concerned authority shall continue to pay recurring compensation to the writ petitioners therefor, both current and arrears, having regard, however, to the provisions of Section 11A of the 1894 Act. However, the respondents will be entitled to adjust the amount already paid to the petitioners against such arrear dues.
There will be no order as to costs.
Having regard to the issues involved in the instant application, the prayer for stay of this judgment made on behalf of the respondents is allowed. Let the operation of the judgment remains stayed for three weeks.