The Judgment of the Court was as follows:—

Sinha, J.:— This appeal is directed against an order dated 16th November, 1998 passed by a learned Single Judge of this Court in W.P No. 20266(W) of 1998, whereby and whereunder the following order was passed:—

“Having heard the learned Lawyers for the parties I am of the view that the respondents shall make payment of compensation to the petitioner at an early date. It is very deplorable fact that in spite of two successive orders passed by this Court no concrete step has been taken for making payment of compensation to the petitioner.

Accordingly, I direct the concerned Land Acquisition Collector to make compensation to the writ petitioner within 12 weeks from the date of communication of this order.

Let the matter appear in the list four months hence as marked ‘For Order’ to report compliance.”

2. The fact of the matter lies in a very narrow compass.

3. The lands in question which had been described in Paragraphs 2 and 3 of the writ application were purchased by the respondent Ne. 1 herein from Maharaja Jagaddipendra Narayan Bhup Bahadur of Cooch-behar by two separate deeds dated 18.3.60 and 26.3.1969 despite the fact that the estates of the aforementioned Jamindar vested in the State of West Bengal in terms of the provision of the West Bengal Estate Acquisition Act. However, a writ application was filed by the writ petitioner which was marked as C.R No. 5291(W) of 1977 questioning the vesting of the said estate and an attempt on the part of the State to take over the possession of the lands. D.K Sen, J., (as His Lordship then was) by an order and judgment disposed of the said writ application stating:—

“After considering the respective submissions of the parties and the impugned proceedings, it appears to me that it is a common case that possession was not taken under Section 14T of the West Bengal Land Reforms Act, 1971. It further appears that under the purported writ only symbolic possession was taken and it appears that the actual possession is still with the petitioner. In the instant case an interim order was passed directing the maintenance of status quo as on the date of the issue of the Rule.

In the facts and circumstances of the case, I dispose of the matter by giving liberty to the respondents to proceed in respect of the land in dispute in accordance with law.

If the possession of the petitioner is to be effect or disturbed, the same may be also done in accordance with law and on notice to the petitioner.

It is made clear that this application is disposed of only on the limited ground. The petitioner will be at liberty to agitate his contentions except those under Article 363 of the Constitution which in my view cannot stand in the way of vesting of land.”

4. As the said order was not complied with, the petitioner had to file another writ application before this Court which was marked as C.R No. 1816(W) of 1969. Chittatosh Mookherjee, J. (as His Lordship then was) upon taking into consideration various decisions of the Supreme Court of India directed:—

“The orders passed in this Rule, therefore, would be without prejudice to the heirs and legal representatives of the deceased Shri jagaddipendra Narayan Bhup Bahadur to submit returns in terms of sub-sections (h) and (5) of Section 6 of the West Bengal Estates Acquisition Act for retention of such lands according to law. If such returns are filed within a period of six months from this day, the respondents will consider the Same in accordance with law and pass appropriate orders for retention and Vesting.

Subject to these observations, the Rule is discharged. The interim order will continue for a period of six months or till the disposal of the proceeding under Section 6. of the Act which ever is later.”

5. According to the writ petitioner, the said order had been Complied with but the appellant herein denies and disputes the same. However, a third writ application was filed by the respondent No. 1, writ petitioner which was marked as C.O No. 14733(W) of 1980. K.M Yusuf, J., by an order dated 6th August, 1990 disposed of the said writ application holding:—

“This writ petition was moved on 3rd December, 1980 and this Hon'ble Court passed the order of status quo. It was submitted by the learned Advocate for the petitioner that the possession has been symbolically taken away by the State against the process of law. It is the definite case of the petitioner that under Section 4(1) of the W.B Land Reforms Act 1955, the petitioner's right as a Raiyat to the plots in question cannot and should not in any way be disturbed or taken away because the W.B Land Reforms Act, 1955 having overriding effect in terms of the Section 3 of the said Act, I fully agreed with the contention of Mr. Maitra that the State authorities cannot take over the possession of the petitioner's land contrary to law without giving him an opportunity of option, and if they want to take away the plots in question without giving any opportunity of option then they should adequate compensation by initiating proceeding under Land Acquisition Act, otherwise not. This is because of the fact that the petitioner has acquired a valuable right upon the said State by virtue of West Bengal Land Reforms Act.

In that view of the matter, the impugned Memo dated 4th September, 1980 issued by the Collector of Cooch-behar is hereby quashed. The respondents are directed to take immediate steps by giving opportunity to the petitioner to exercise option and in case they are not so desirable then adequate compensation must be given to the petitioner by initiating acquisition proceeding under Land Acquisition Act. The respondents cannot take away property which does not entitle them to vest under the law. The above direction must be acted upon within six months from date.

The writ application succeeds with the above directions. There will be no order as to costs.”

6. The said order was questioned by the State by preferring an appeal which was marked as F.M.A.T No. 2331 of 1993. Krishna Chandra Agarwal, C.J (as His Lordship then was) and Ruma Pal, J. by an order dated 25.1.95 refused to condone the delay of 1057 days in preferring the appeal. As the application under Section 5 of the Limitation Act was dismissed, the appeal also stood dismissed. Despite the fact that the said order became final and binding on the parties, the respondents did not comply with the same, the petitioner had to file another writ petition which was marked as C.O No. 12833(W) of 1996 and N.K Mitra, J. (as His Lordship then was) by an order dated 3.9.96 disposed of the writ application stating:—

“The writ application is disposed of by directing the authority concerned to consider and dispose of Annexures ‘C’ and ‘G’ to the writ application in accordance with law after hearing the petitioner and taking into consideration the documents and papers to be filed at the time of hearing and by passing a reasoned order positively within twelve weeks from the date of communication of this order which the petitioner is to communicate within six weeks from the date along with a copy of the said annexure.

“Till such disposal, status quo as on today shall continue provided the communication is made within the stipulated time and in the manner as directed above in default, the writ application will stand rejected.”

7. Thereafter, the Sub-divisional Land and Land Reforms Officer, Sadar Cooch-behar gave an opportunity of hearing to the petitioner as also the representative of the Collector and in terms of the order dated 23.12.96 upon taking into consideration the entire fact of the case as also the orders passed by this Court from time to time as referred to hereinbefore held:—

“But this order was not given effect to either by submission of option or by obtaining of option within the time stipulated by the Hon'ble High Court. Also, no land acquisition proceedings was initiated. Besides, Mr. Bhaskar Prosad Vaisy, learned Advocate, for the petitioner sent a letter dated 22.7.96 asking the respondents to pay his client adequate compensation by means of initiating land acquisition proceedings.

Therefore, the petitioner moved another writ application in the Court of Hon'ble Justice N.K Mitra on 3.9.96 who was pleased to pass order as follows:—The writ application is disposed of by directing the authorities concerned to consider and dispose of Annexure ‘F’ and ‘G’ to the writ application in accordance with law after hearing the petitioner………by passing a reasoned order……… Seen the Annexures ‘F’ and ‘G’ to the writ petition. It appears from the said annexure that the petitioner's prayed for obtaining effect of order of Hon'ble Mr. Justice K.M Yusuf only in connection with compensation under the provision of Land Acquisition Act.

The second direction is an alternative to the first part of the order. Accordingly, the first part of the order should be complied. As the said order is still left uncarried, the order of Hon'ble Justice N.K Mitra has created further scope to comply the order.

Hence, it is ordered that the Collector of Cooch-behar would implement the order of the Hon'ble Justice K.M Yusuf dated 6.8.90 in connection with Civil Order No. 14733(W) of 1980.

Thus, the Annexures ‘F’ and ‘G’ are disposed of.”

8. The said order had also not been questioned by the State before any appropriate forum but at the same time it refused to give effect to the same. Allegedly, a contempt application was filed for non-compliance of the order passed by K.M Yusuf, J. which was not entertained. The respondent No. 1.writ petitioner demanded Justice through his learned Advocate by his letter dated 3.9.97 as contained in Annexure K to the writ application. Thereafter, the instant writ application being W.P No. 20266(W) of 1998 was filed wherein the impugned order has been passed.

9. Mr. Dasgupta, learned counsel appearing on behalf of the appellant has raised three contentions in support of this appeal. The learned Counsel firstly submits that the possession of the lands of the petitioner having been taken over under the provision of the West Bengal Estate Acquisition Act no compensation could have been directed to be paid in terms of the provision of the West Bengal Land Reforms Act. The learned Counsel next contends that the Land Acquisition Collector could not have been directed to pay compensation. The learned Counsel also submits that as the contempt proceeding for executing the order dated 6.8.90 passed by K.M Yusuf, J. had not been entertained the writ petitioner could not have filed another writ application for implementation of the said order.

10. Mr. K.K Maitra, learned Counsel appearing on behalf of the first respondent/writ petitioner submits that the orders passed by different Benches of this Court and in particular the order passed by K.M Yusuf, J. became final and binding on the parties. The learned Counsel in this situation submits that the principle of res judicata shall apply as against the appellant and thus the appellant is estopped from reagitating the question which was raised before K.M Yusuf, J. and which did not find favour in support of the said contention.

11. Reliance has been placed on the decisions in the case of (1) Mohallal v. Benoy Kishna reported in AIR 1953 SC 65; (2) State of West Bengal v. Hemant Kumar reported in AIR 1966 SC 1061; (3) J. Ramanuj v. Lakshmi Narayan reported in AIR 1960 Orissa 197 and (4) Baijnath Prasad v. Ramphal reported in AIR 1962 Patna 72.

12. The learned Counsel for the respondent No. 1 further submits that the appellant herein cannot collaterally challenge the order passed by the Sub-divisional Land and Land Reforms Officer and in support of the said contention strong reliance has been placed on the decisions of the case of (5) Authorised Officer (Land Reforms) v. M.M Krishnamurthy Chetty reported in (1998) 9 SCC 138 and (6) State of Punjab v. Gurdev Singh reported in (1991) 4 SCC 1 : AIR 1991 SC 2219.

13. It is true that compensation payable under the West Bengal Estate Acquisition Act and the Land Acquisition Act would be different but as noticed hereinbefore this Court had held that the petitioner has been deprived of his right of raiyati interest in respect of the land purchased by him to which he was entitled to the compensation in terms of the provision of the Land Acquisition Act. In that situation, the learned trial Judge directed that the adequate compensation must be given to the petitioner by initiating acquisition proceeding in terms of the provision of the Land Acquisition Act. Admittedly, the said order had not been complied with.

14. It is difficult to comprehend the submission of Mr. Dasgupta, learned Counsel for the appellant to the effect that the writ petitioner had become remediless in view of the dismissal of the contempt proceeding. A contempt proceeding is not an execution proceeding. Contempt is a matter between the Court and the contemner. It is for this Court to exercise its jurisdiction under Article 215 of the Constitution of India, or in terms of the provisions of the Contempt of Courts Act, 1970 but only because the alleged contemner is not punished, the same by itself would not mean that a valid order passed by this Court stands invalidated. It is beyond any cavil of doubt that the principle of constructive res judicata is applicable to a writ proceeding. In the case of Mohallal v. Benoy Kishna reported in AIR 1953 SC 65, the Apex Court held:—

“23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as ‘res judicata’ between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ‘res judicata’. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties See—Abhoy Kanta v. Gopinath Deb, AIR 1943 (30) Cal. 460.”

15. Yet again in the case of State of West Bengal v. Hemant Kumar reported in AIR 1966 SC 1061, the Apex Court laid down the law in the following terms:—

“14. Before proceeding with these arguments in detail, we can dispose of second contention very shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4.4.1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contentions. The decision of the High Court dated 4.4.1952 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not.”

16. The Orissa High Court in the case of J. Ramanuj v. Lakshmi Narayan reported in AIR 1960 Orissa 197, held:—

“5. In my opinion all these contentions are barred by res judicata. It is now well settled that Section 11 of Civil Procedure Code is not exhaustive on the question of res judicata and that the principle applies to execution proceedings also. In Mohallal v. Benoy Kishna, AIR 1953 SC 65, their Lordships of the Supreme Court reiterated this principle and further pointed out that even the principle of constructive res judicata is applicable to execution proceedings (See-Paragraph 20 of the decision). They also emphasized that even an erroneous decision on the question of law operates as res judicata between the parties.”

17. Yet again a Full Bench of Patna High Court in the case of Baijnath Prasad v. Ramphal reported in AIR 1962 Patna 72, clearly laid down the law in the following terms:—

“10. The doctrine of res judicata has a wide application. It is based upon the principle of finality and sanctity of judgment between the parties. If the same matter can be reopened again and again, there will be no end to litigation. There will be a great oppression in the name of law, and the parties and their descendants will never have any repose. The question whether the decision is right or wrong is immaterial for application of the doctrine of res judicata. The Court may commit an error on facts, on law or even on a point of jurisdiction when the Court has exclusive power to decide whether it has jurisdiction or not, and still the judgment or order will operate as res judicata. The doctrine has been embodied in a restricted form in Section 11 of the Code. That section prohibits a Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. Explanation-IV lays down the principle of constructive res judicata and states that a matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue.”

18. In the case of Authorised Officer (Land Reforms) v. M.M Krishnamurthy Chetty reported in (1998) 9 SCC 138, it has been held that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior Courts.

19. Thus, there cannot be any doubt whatsoever that the order passed by K.M Yusuf, J. became, final. It is further difficult to appreciate the submission of Mr. Dasgupta, learned Counsel for the appellant to the effect that in view of the order passed by N.K Mitra, J., the order passed by K.M Yusuf, J. has lost its efficacy.

20. A bare perusal of the said order would show that as despite several representations the order of K.M Yusuf, J. was not complied with N.K Mitra, J. directed consideration of the representations which were contained in Aimexures “F” and “G” to the writ application.

21. Right to hold the property is a constitutional right as envisaged under Article 300(A) of the Constitution of India. No person can be deprived of his right to hold a property except in accordance with law. The fact remains that in terms of the judgment delivered by K.M Yusuf, J., the petitioner has been deprived of such a right and thus he is entitled to be compensated. The question that such an order of compensation can be passed to determine and pay to the petitioner by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is no longer res integra as by reason of its acts of commission or omission the State must be held to be guilty of commission of constitutional tort in view of the fact that the petitioner has been deprived of his lawful right declared in his favour by a judgment of this Court.

22. There cannot be any doubt that it is a fit case in which this Court could direct grant of compensation payable to the petitioner.

23. We are, therefore, of the opinion that the order passed by this Court is in consonance with the spirit and object of the provision of the Constitution of India as also the other law for the time being in force.

24. However, the learned Counsel is right in contending that as the possession of the lands has been taken over by the Revenue Department and the same has not yet been acquired, the Land Acquisition Collector could not have been directed to make payment of compensation to the petitioner. Such direction could only be issued to the Collector of the District and/or concerned authority of the Revenue Department who in turn could have taken possession of the lands.

25. Furthermore, the appellant herein cannot collaterally be permitted to question the order dated 23.12.96 passed by the Sub-divisional Land and Land Reforms Officer, Cooch-behar which was the subject-matter of any proceeding before any higher Court. The appellant had not also preferred any appeal against the said order.

26. In the case of State of Punjab v. Gurdev Singh reported in (1991) 4 SCC 1 : AIR 1991 SC 2219, the law has been laid down in the following terms:—

“5. In the instant case, the respondents were dismissed from service may be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them, the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not ‘quash’ so as to produce a new state of affairs.

27. But none the less, the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In (8) Smith v. East Elloe Rural District Council, (1965) AC 736 at page 769 Lord Redcliffe observed:—

“An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless, the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”.

7. Apropos to this principle, Prof. Wade states: “the principle must be equally true even where the ‘brand of invalidity’ is painly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Edn. p. 352), Prof. Wade sums up these principles:

“The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the ‘void’ order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another” (Ibid p. 352).”

28. Thus the order passed by the Sub-divisional Land and Land Reforms Officer is also binding on the State.

29. Such amount of compensation should be determined and paid by the Collector within a period of 12 weeks from the date of communication of this order.

30. As in terms of the order dated 12.4.99 while directing stay of operation of the impugned judgment we had observed that in the event the appeal is dismissed, the Court may consider the desirability of granting of interest on the amount of compensation, we direct the appellant to pay interest upon the amount of compensation to be calculated at the rate of 12– per annum from the date of filing of the writ application till the actual payment of such compensation.

31. The appellant should bear and pay the costs to the respondent Counsel's Fee assessed at 200 Gm.

32. For the reason aforementioned, this appeal is dismissed.

33. Urgent Xerox certified copy of this order, if applied for, be supplied on priority basis.

Bhattacharjee, J.:— I agree.

S.K.G