R. Pal, J.
1. The respondent is the owner of Premises No.32A, Brabourne Road, Calcutta (referred to as the suit premises). The suit premises are occupied by Calcutta police personnel. This appeal has been preferred from a Judgment and decree dated 9th September, 1998 by which khas possession of the suit premises has been granted to the respondent. Three months' time was allowed from the date of the decree for the appellant to vacate the suit premises. A further decree of Rs.66,702/- and Rs.51,45,161/- and further mense profit at the rate of Rs. 1.10,000/- per month from September, 1993 until delivery of vacant possession was also awarded.
2. The suit premises was initially requisitioned by the appellant under section 3(1) of the West Bengal Premises Requisition & Control (Temporary Provisions) Act, 1947 (referred to as the 1947 Act) by a notification dated 1st October, J958. Possession of the premises was handed over to the Calcutta Police on 4th October 1958. The rent compensation was fixed at Rs.4.950/- per month which was subsequently increased in 1963 to Rs.7,230/- per month.
3. On 31st March. 1987, the 1947 Act was amended by the West Bengal Premises Requisition & Control Act (Second Amendment), 1986 by which section 10A and 10B were Introduced. The effect of these amended provision was that the authorities became bound to de-requlsltlon premises which had already been requisitioned under the 1947 Act, upon the expiry of 5 years from the date the amendment came into force namely 31st March, 1987.
4. On 25th March, 1992 the appellant de-requisitioned the premises and asked the plaintiff/respondent to receive vacant possession on 31st March, 1992. (Ex.B). The premises were however not vacated.
5. The respondent moved a writ application (Matter No.2444 of 1992) for enforcement of the amendment on the appellant to vacate the premises. The writ application (referred to as the first writ application) was disposed of on 9th September 1992 (Ex.E) by granting the appellant six months' time to vacate the premises and to deliver vacant and peaceful possession to the respondent. It was made clear that the time limit fixed was peremptory. The appellant was directed to pay occupation charges at the rate ofRs. 10.000/-per month with effect from 1st April, 1992 until the premises were vacated. All arrears of occupation charges from the date of derequisition up to 31st March. 1992 were also directed to be paid by 30th November. 1992. The court made it clear that the order did not prevent the parties from entering Into any settlement between the parties.
6. The appellant sought to prefer an appeal from this order by way of special leave petition to the Supreme Court, By order dated 12th January, 1993 the Supreme Court dismissed the special leave petition and said :
"Under the Land Acquisition Act the Government has power to proceed and acquire the property. In the S.L.P. It is specifically mentioned on behalf of the petitioner namely the State of West Bengal that a move has already been initiated to proceed by way of acquisition. To the same effect is the letter addressed by P.V. Department to the Land Acquisition Collector. Calcutta which is marked as Annexure "E" in the S.L.P. Paper Book. Under these circumstances we give six months time to the petitioner to proceed and complete the acquisition proceedings by Issuing necessary notifications under section 4 as well as under sec-don 6 of the Act. Till then the present premises shall continue to be in possession of the Government and the Special Officer appointed by the court shall hand over the key to the concerned authority. It is needless to say that till the acquisition proceedings are completed the respondents shall be entitled to compensation under the requisition proceedings,"
7. In the meanwhile on 16th October, 1992, 8th February. 1993 and 30th April, 1993 (Ex.D) and 8th July 1993 four separate orders were passed by the appellant de-requisitioning the premises but vacant possession was not handed over. An application for contempt was taken out (Matter No. 480 of 1993) which was disposed of on 7th April 1993 granting six months' time to the appellant to vacate the premises. Arrears of rent and compensation as fixed by the order dated 9th September, 1992 was directed to be paid within a period of two months. In default the order would stand recalled. (Ex.E).
8. On 4th August. 1993 a fifth order of de-requlsition(Ex.D) was issued by the appellant but vacant possession was not handed over. A further application for contempt was moved (Matter No.480 of 1993). The application was disposed of on 8th July 1994 by the following order (Ex.F) :
"Upon hearing Mr. Anlndya Mltra, Advocate for the said petitioner and Mr. Aloke Blswas and Amar Ghosh, Advocates for the respondents abovenamed and upon the respondents above named by their said Advocates submitting to this court that they as well as the Government of West Bengal have agreed in principle to acquire the disputed premises and prayed for three months time to start the acquisition proceedings and in view thereof and by way of last chance. it is ordered that the respondents above named and the alleged contemnors and the Government of West Bengal do within three months from the date hereof Initiate acquisition proceedings by publishing necessary gazette notification afresh under the Land Acquisition Act, and it is made clear that if no such notice is published within the aforesaid period, no further time shall be allowed and the respondents above named have to vacate the premises in question within seven days from the expiry of that period of three months. And it is made clear that all the arrears of occupation charges must also be paid to the petitioners through their Advocates on record either by Issuing account payee cheque or by bank draft and so far as the current occupation charges and concerned it is also made clear that there shall not be any default in making payment of the current occupation charges and in case of making on such default this order shall stand vacated. And it is made clear that the direction given in regard to acquisition of the property and for payment of the arrear occupation charges must be compiled with within the period of the said three months. And it is also made clear that this order shall not prevent the said petitioners from challenging the acquisition proceedings if Initiated, in accordance with law. And it is further ordered that the hearing of this application be stand adjourned tilt the tenth day of November one thousand nine hundred and ninety four and it is further ordered that all paities do act on a signed copy of the minutes of this order signed by an .officer of this court being produced before him."
9. On 28th September, 1994 the appellant issued a notification under section 4 of the Land Acquisition Act, 1894. The notification was published in the Official Gazette on 28th October, 1994 and in "The Telegraph" on 1st November, 1994. (Exs. 6 & 7)
10. The respondent filed a writ application (referred to as the second writ application) challenging the notification under section 4 of the Land Acquisition Act, 1894. The prayers, inter alia, were for :
"(b) A writ of Mandamus be issued commanding the respondents to forthwith withdraw, rescind or cancel the Impugned notification purportedly under section 4 of the Land Acquisition Act in respect of premises No.32A, Brabourne Road, Calcutta and all steps taken in pursuance thereto and further to resist from Issuing similar notice in respect of the said premises;
(c) A writ in the nature of Mandamus do issue commanding the respondents not to take any steps or further steps in relation to any part of the Premises No.32A, Brabourne Road, Calcutta comprising of land and building under the Land Acquisition Act, 1894;
(d) A writ in the nature of prohibition, prohibiting the respondents from taking any steps or further steps pursuant to the said Notification dated 28th September, 1994 being Annexure "B" hereto and/or otherwise under the Land Acquisition Act, 1894:"
11. On 8th July, 1994 after giving directions for filing of affidavits, an Interim order was passed which reads as follows :
"Any action taken by the respondents shall abide by the result of this writ application. However, it may be recorded that Mr. Mltra, appearing on behalf of the petitioner, states that if proper market value for the property is offered, the petitioner will have no objection to the land being acquired and possession thereof taken over by the Competent Authority."
12. The special leave petition filed by the respondents from the order being SLP(C) No.19362 of 1994 was dismissed on 19th February. 1996. In the meanwhile, affidavits were filed in the second writ application and the matter was heard. According to the appellant the last date of hearing was 23rd June, 1996.
13. According to the appellant they had been advised that since the matter was pending before the Supreme Court no further steps should be taken in the acquisition proceeding without the leave of the court (Ex.8). By the time the special leave petition was dismissed on 19th February, 1996 the time specified for publication of declaration under section 6 of the 1894 Act had expired. Accordingly, a fresh notification (Ex.G) was Issued on 4th March, 1996 bearing No.l351LA which was published in the Calcutta Gazette ostensibly on 25th March, 1995 (referred to as the Second Notification). The second notification was also advertised in the Ganashakti Patrlka on 9th March, 1996 and in the Amrita (sic) Bazar Patrlka on 10th March, 1996 (Ex.9).
14. At this stage, on 22nd August, 1996 the suit which has given rise to this appeal was filed for eviction of the appellant. The cause of action in the plaint is the de-requisition of the suit premises under section 10A and 10B of the 1947 Act and the several orders of de-requlsltlon passed. The 1994 acquisition proceedings were challenged on the ground that the Land Acquisition Collector having failed to Issue any declaration or notice under section 6 of the 1894 Act within the statutory period, the acquisition proceeding had lapsed. No mention was made of the second notification. The case of the respondent in the plaint also was that Irrespective of the pendency of the acquisition proceeding, the respondents were entitled to possession thereof. Mesne profits Inclusive of Interest was claimed for an amount of Rs.2,93,85,446.00. Further mense profits at Rs.8,03,320/- per month was also claimed in addition to the decree for khas possession. On 9th September 1996 an order was passed on the Interlocutory application filed by the respondent appointing a Receiver over the premises who was also to submit a report as to who was utilising the premises, how the premises were being utilised and as to the additions and alterations if any. The appellant and the occupiers were restrained from affecting any addition or alterations without leave of the court. The Receiver submitted a report to the effect that the premises were being used as Police Barracks by the Calcutta Police.
15. By an order dated 7th October 1996 (Ex.H) the Interlocutory application was disposed of by confirming the order dated 9.9.96 and directing the Receiver to take symbolic possession of the premises. The occupants were directed to pay Rs. 50.000/- per month as occupation charges. In default, the respondent was given leave to execute the order as a decree. Mr. P.K. Bhaltacharya, Advocate was directed to ascertain the reasonable occupation charges and to submit a report. The Commission submitted a report on 7th October 1996 fixing the monthly occupation charges @ Rs.4,44,268 Inclusive of Municipal Taxes (Ex.1)
16. In the meanwhile the second notification under section 4 of the 1894 Act was corrected by an erratum Issued on 1st April, 1997 (Ex.G) correcting the date of the Official Gazette to read :
CHAITRA-5 Monday, March 25, 1996 SAKA 1918 in LIEU OF :-CHAITRA-5 Monday, March-25, 1995 Saka 1918"
17. The substance of the second notification under section 4 was published in the locality of the suit premises on 30th June, 1997 and the substance of the erratum on 25th June, 1997. This was recorded in the report filed under section 5A(li) of the Land Acquisition Act I of 1894 in respect of the suit premises. On 12th August, 1997 the declaration under section 6 of the Land Acquisition Act in respect of the suit premises was published in the Calcutta Gazette. The declaration was also published in the Asian Age on 17th August. 1997 and Ganashakti on 18lh August, 1997. (Ex.10)
18. The suit, however, continued to proceed. The appellant filed a written statement in which inter alia all the facts relating to the first and second acquisition proceedings were stated. On the basis of the pleadings the following Issues were framed :
"1. Is the plaintiff entitled to recover possession of the suit premises?
2 (a) is the plaintiff entitled to mesne profits as claimed?
2 (b) if so, at what rate?
3. To what relief, if any, is the plaintiff entitled?"
19. Witnesses were examined on either side. Apart from Sishu Ranjan Dutta, a shareholder of the Respondent, Ajlt Kumar Dey. a Consultant Engineer & Chartered Surveyor and Pranab Kumar Bhattacharya Advocate Commissioner were examined by the plaintiff respondent. The appellant called Loknath Lahiri. Additional Land Acquisition Collector, Calcutta and Sashinath Iswarari. Deputy Secretary, Forest and previously, the second Land Acquisition Collector, Calcutta. The court noted the facts as related above and came to the conclusion that the declaration under section 6 published in the Calcutta Gazette on 12th August, 1997 was after the expiry of one year from the date of publication of the second notification under section 4 and was therefore Invalid and of no effect. It was also held that the publication of the first notification under section 4 on 28th October, 1994 was contrary to the order of N.K. Mitra J. and could not be sustained. The learned Judge concluded therefore that the occupation of the suit premises by the appellant after 8th October, 1994 was Illegal and unjustified. The first Issue was according decided in the affirmative.
20. On the second two issues the court came to the conclusion that the respondent was entitled to mesne profits at the rate of Rs. 1 lakh per month together with simple interest thereon at 12% per month. On account of arrear mesne profits a sum of Rs.66,702/- was determined.
21. The arguments raised before us may be broadly classified as those relating to the issue of possession and those relating to the quantum of mesne profits.
22. According to the appellant the learned Judge erred in holding that the second proceedings under the Land Acquisition Act were bad. It is submitted that there is neither any pleading nor any prayer by the plaintiff respondent in this regard. It is also submitted that in any event the only ground on which possession had been decreed was that the declaration under section 6 had been Issued beyond the prescribed period. It is submitted that the date of publication for notification was 30th June 1997 and that the declaration under section 6 was well wllhln the statutory period. Secondly, it is submilted that the prayer for possession was not maintainable because the bases of the plaintiffs claim were the order of derequisition and the order of the High Court on the first writ application on 9th September 1992. That order made it clear that the parties could enter into any settlement between them. According the appellant pursuant to this leave the plaintiff through its counsel had agreed that the premises may be acquired and this was recorded in the order passed in the contempt application filed by the respondent which was disposed of on 8th July 1994. In addition it is submitted that counsel for the plaintiff had, as recorded in the order dated 3rd February 1995, stated that the plaintiff had no objection to the land being acquired and possession being taken over by the competent authority if appropriate market value of the properly was offered. It is submitted that the suit has been filed in abuse of the process of the court as the same issues were the subject matter of the pending writ applications. It was also sought to be contended that the possession already being with the State of the suit premises and since the acquisition proceedings are pending, the State should not be asked to vacate. Finally it is submitted that by dismissal of the Special Leave Petition, the issue must be taken to have been decided and the plaintiffs claim for possession during the pendency of acquisition proceedings were barred by res-Judicata.
23. The respondent has submitted that the pendency of acquisition proceedings was not at all relevant to the question of delivery of possession to the owner. It is said that the question of possession only arises after the passing of the award under section 12 and subject to the provisions of section 6 of the 1894 Act. (t is submitted that there was in fact no consent at all to the acquisition proceedings at any stage. It is also submitted that the learned Judge was correct in holding that the second acquisition proceedings were barred because of the gross delay in Issuance of the declaration under section 6.
24. The basis on which the learned Judged decreed the suit namely, the invalidity of the acquisition proceeding cannot be supported. The proceedings Initiated on the basis of 1954 Notification ceased to be relevant once the second notification was Issued in 1996 under section 4 of the Act. The earlier proceedings were effectively abandoned, a power that the appellant could exercise under section 48(1). And as held in Raghunath and Ors. v. State of Maharashtra and Ors: :
"In respect of the lands covered by the first notification under section 4 which are also covered by or comprised In, the second notification under section 4, further proceedings regarding acquisition should be taken, in accordance with law, only in pursuance of the latter notification and the proceedings initiated in respect of such lands by the first notification dated 22-8-1982 should be deemed to have been superseded."
25. There ts as such no bar to successive proceedings being taken (see also : Hartnarayan Biswas & Ors. v. The First Land Acquisition Collector & Ors. : 69 CWN 280). Besides, the 1954 NoUflcatlon is the subject matter of pending writ proceedings which have not yet been withdrawn by the plaintiff respondent The plaint also does not contain a prayer for setting aside the acquisition proceedings. Indeed the facts relating to the 1996 proceedings were not brought on record by the plaintiff respondent at all. It is debatable whether in the circumstances the learned Judge could have entertained any argument let alone decided on the merits of the 1996 acquisition proceedings (see : Chandigarh Administration v. Laxman Roller Hour Mills Pvt. Ltd. : ).
26. Assuming that the challenge ts the second notification is Implicit in the prayer for possession made by the plain tiff/respondent, it is not possible to hold that the proceeding were or are Invalid. Section 4(1) of the Land Acquisition Act, 1894 in so far as it is relevant provides :
"4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two dally newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification."
27. The last phrase namely, "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification," was Inserted by way of amendment on 29th September 1984. Therefore under section 4 the notification is required to be published (I) in the Official Gazette (II) in two daily local newspapers (111) at a convenient place in the locality. By virtue of the amendment it is the date on which the last of such publications is made which would be taken as the date of publication of the notification. The definition is important because the time limit for various steps in the acquisition proceedings Including the determination of the amount of compensation is fixed with reference to the last date of publication. For example section 5A provides :
"5A. Hearing of objections.--(1) Any person Interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, [within thirty days from the date of publication of the notification), object to the acquisition of the land or of any land in the locality, as the case may be."
28. After giving the objector an opportunity of being heard and making such enquiry as may be necessary, the Collector is required to make a report in support of the premises to be acquired by the appropriate Government containing his recommendation on the objection. The appropriate Government is then required to take a decision on the objection and under section 5A(2), such decision "shall be final". The next step in terms of the Act is for the appropriate Government, here the Government of West Bengal, to make a declaration under section 6 in the prescribed form that the particular premises is needed for a public purpose. Clause (11) of the first proviso to sub-section (1) of section 6 provide that no declaration under section 6 shall be published after the expiry of one year from the date of the publication of the notification under section 4 sub-section(l). This proviso was Introduced by way of amendment effected on 24.9.84 by the Land Acquisition (Amendment) Act (68 of 1984).
29. In this particular case, the Second Notification was published in the Official Gazette on 4th March 1996. It was published in one local newspaper on 9th March 1996 and in another on 10th March 1996. The publication in the locality was however made on 30th June 1997 (Ex.10). The delay in such publication being published, according to the appellant was by reason of the mistake which was discovered in the Gazette publication and the erratum which was published on 1st April 1997. Therefore the date of publication of the notification under section 4 would be 30th June 1997 in terms of the definition under section 4(1). The declaration under section 6 bearing No.7874-L.A./3P-19/94 (Part) dated 11.8.97 in respect of the premises was published in the Official Gazette on 12th August, 1997 in the Asian Age on 17th August 1997 and in the Ganashakti on 18th August 1997. Such publication was therefore well within the time limit provided for under section 6. The learned Judges' finding that the section 6 declaration was published in the Calcutta Gazette "clearly after the expiry of one year from the date of publication of the said second section 4 notification i.e. on 25th March, 1996" was Incorrect.
30. It was contended on behalf of the respondent that the publication of the notice in the locality under section 4(1) was unduly delayed and as such the second acquisition proceedings were vitiated. The submission is unacceptable.
31. There is no doubt that prior to the amendment in section 4(1) in 1984, the Supreme Court in Slate of Mysore v. Abdul Rdzaq Sahib \ and HorendraJit Singh v. State of U.P.:
ostensibly held that publication of the notification under section 4(1) in the Official Gazette and the public notice of the substance of the notification in the locality were required to be simultaneously done. The law, however, was clarified by the Supreme Court in Deepak Pahwa v. Lt. Governor of Delhi & Ors. : . It was held that simultaneous publication was not mandatory nor was a time gap between the publication in the Official Gazette and the public notice in the locality necessarily fatal to the acquisition proceeding.
"Apart from the physical impossibility of syncronlsing the publication in the Gazette and the public notice in the locality, one can visualise a variety of circumstances which may bring about a time-gap between the two. There may be a breakdown of communications, there may be a strike or bandh as happened in one of the reported cases in Andhra Pradesh (Sadar Anjuman Ahmediyya. Muslim Mission v. State: AIR 1980 Andh Pra 246) or there may be some other Justifiable reason. This court did not lay down any general principle that an acquisition would be regarded as void if the notification published in the official gazette was not accompanied or immediately followed by the public notice. What in fact appears to have been said was that a person Interested in the property can be regarded to have had notice of the proposed acquisition if both the requirements of section 4(1) are complied with whether simultaneously or one after the other."
32. The Supreme Court in Deepak Pahwa's case thus found that the basis of the requirement for simultaneous publication was the prescription of the time limits under the other provisions of the Act particularly section 5A. Public notice in the locality is necessary for the purpose of Informing the interested persons of the proposed acquisition, but if at the same time, the period for preferring objection thereto is fixed with reference to the first publication, the right to prefer an objection may be rendered nugatory. It was therefore said that in order to advance the objection of section 5A, the period within which the objection were to be filed should be reckoned from the later date. This Interpretation of section 1(1) was subsequently Incorporated by way of amendment in the Act Itself. After such amendment the reason for requiring simultaneous publication of all the methods of public notice was no longer operative.
33. The decision of the Punjab & Haryana Court namely Devt Singh v. Haryana State : which set aside the acquisition only because the publications of the notifications under section 4(1) were not simultaneous, was based on the earlier law and must be taken to have been overruled by the Supreme Court in Deepak Pahwa's case. The Supreme Court in Land Acquisition Officer. Hyderabad v. Md. Amrt Khan : , also cited by the respondent did not set aside the acquisition proceeding on the ground of unconscionable delay. In that case the State of Andhra Pradesh had amendment section 4(1) as far as the State was concerned, by fixing a period of 40 days from the date of publication of the notification in the Official Gazette for the purpose of causing public notice to be given in the locality. The publication haying taken place after the period of 40 days, the acquisition proceedings were held to be vitiated.
34. However, the Supreme Court in Deepak Pahwa's case was careful to say that :
"This does not mean that the publication and the public notice may be separated by a long Interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the gazette and if there is public notice in the locality, the requirement of section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bonafides in the proceedings for acquisition. If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone."
35. In other words, the gap between the two publications would continue to be relevant only for the purpose of prima facte establishing the lack of bonafides tn the proceeding for acquisition as well as on the question of prejudice.
36. In the case before us no issue raised before the learned single Judge as to whether the second acquisition proceedings were vitiated by mala fides nor was any case of prejudice pleaded, argued or considered.
37. But the question still remains whether in law, the appellants arc entitled to remain in possession of the premises despite the pendency of valid acquisition proceedings.
38. Under the scheme of the Act after the publication of notification under section 4 Intimating the possible need of premises for public purpose and the declaration under section 6 that the premises sought to be acquired was required for public purpose, the order of acquisition is passed under section 7. Thereupon, the Collector causes the land to be marked out and measured and to prepare a plan under section 8. Notice of Government's intention to take possession is required to be given at this stage. The notice must be given to all persons Interested in the premises sought to be acquired so that they may object to the measurement taken under section 9. Considering the objection, If any, under section 9. the Collector holds an Inquiry into the value of the land at the date of the publication of the notification under section 4(1) and the respective Interest of the persons claiming possession in the land. He is required to be given an award under section 11 determining not only the true area of the land but also the compensation which should be allowed for the land and the apportionment of the compensation amongst those persons having an interest in the land. If the persons Interested in the land appear before the Collector and agree in writing as to what land is to be Included in the award of the Collector, the Collector can pass an award on the basis of such agreement (section 11(2)]. After the award reaches finality under section 12, the Collector "may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances' under section 16. Thus pending the making of the award under section 11, the Collector cannot take possession and until possession of the land under acquisition is taken under section 16 the respondent had no right to remain in possession.
39. Even in cases of urgency. If the appropriate Government so directs, the Collector can take possession within 15 days from the publication of the notice under section 9. The State Government may also direct that the provisions of section 5A shall not apply and the declaration under section 6 can be made Immediately [section 27(4)). In such cases of urgency the Collector is required to tender payment of 80 percent of the compensation of the land as may be estimated by him under section 17(3a) and pay it to the persons Interested in the land unless prevented in one or more of the contingencies mentioned in section 31(2) namely if the persons entitled to compensation either do not agree to receive it or there is no person competent to alienate the land or if there is any dispute as to the title or the right to receive compensation or the apportionment thereof. No notice under section 9 has been Issued nor any offer of compensation was made under section 17(3a) by the Collector. Sections 35 to 37 deal with the right of the Government to take temporary occupation of waste or arable land. Even then such possession can be taken only after notice and payment of compensation under section 35(2).
40. Until the pre-conditions specified under the Act for taking possession are fulfilled, the possession of the State Government of the premises sought to be acquired is not under the Act, The possession in order to be illegal would have to be referable either to a statute or agreement. 'If a person is in possession of a land, say as a lessee or mortgagee, with limited rights, there is no legal objection in his acquiring full rights over the land by acquisition proceedings, provided that the other conditions necessary for acquisition are satisfied. It is true that in such cases the delivery of possession required by section 16 of the Act may become somewhat notional or symbolical, but as already pointed out, the nature of the possession before acquisition and the nature of the possession after acquisition are fundamentally different." [See : Girdharan Prasad v. State of Bthar : (DB)].
41. Neither exists in this case. According to the appellant an order of acquisition has been passed under section 7. However, it is undisputed, at least till the date of these appeals, that there has been no notice under section 9 nor any proceeding, under section 11 nor has permission been taken under section 16. Therefore, until possession is taken under the Act, after the de-requisition of the premises acquisition proceeding in the absence of any agreement, the occupation of the State Government is illegal.
42. The appellants contended that the respondent in fact agreed to the acquisition proceeding and referred to the order dated 8th July, 1994 which has been quoted in an earlier part of this judgment. Learned counsel appearing on behalf of the respondent however contended that no such concession had been made. Even assuming that such concession was made, the concession was that the respondent would have no objection to the land being acquired and possession thereof being taken over pursuant to such acquisition. The concession does not allow the appellant to continue in possession without acquisition of the land.
43. The next submission of the appellant was that the issue of possession is barred by res-Judicata. The submission is mis-conceived. None of the orders passed granted the appellant the right to Indefinitely possess the premises without completion of the acquisition proceeding. The Supreme Court by its order dated 12th January. 1993 granted six months' time to the appellant to complete the acquisition proceeding, till which time the Government could continue in possession. The appellants right to possession thereafter was subject to the completion of the acquisition. Another six months' time was granted by the order dated 7th April, 1993. The order dated 8th July. 1994 granted the appellant three more months1 time to vacate the premises provided that the notification under section 4(1) was published in the Official Gazette within a period of three months. The first notification was issued on 28th September, 1994 but published on 28th October. 1994 in the Official Gazette after the period specified by the order dated 8th July, 1994. None of the orders decided the issue as to whether the appellants were entitled to continue in possession without completion of the acquisition proceeding, nor did they determine the nature of the appellant's occupation. In the circumstances we are of the view that the finding of the learned Judge that the appellant was not entitled to retain possession of the premises must be upheld although for reasons other than those which found favour with the learned single Judge.
44. This court heard the parties only on the question of right of the appellants to continue in possession and deferred the hearing of arguments on the question of mesne profits as this would have been dependent upon the finding of the nature of possession of appellants is the premises. Accordingly we fix the matter on August 6, 1999 for hearing on the issue of mesne profits.
45. Let a xerox copy of this Judgment and order duly signed by the Assistant Registrar of this court be given to the parties upon their undertaking to apply for and obtain certified copy of the Judgment and order and on payment of usual charges.
M.K. Basu, J.
46. I agree.
47. Order accordingly