Tarun Chatterjee, J.:—This appeal has been preferred against the judgment and/or order passed by a learned Judge of this court on 14th December, 1998 in Matter No. 352 of 1982. By the said order, the writ application was rejected in which the writ petitioner had challenged the acquisition proceeding being L.A Case No. 1-D of 1981/82 including the notification under section 4 and declaration under section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) and the notice under section 9 of the Act and the two other notices dated 8th April, 1992 on the ground that the acquisition proceeding was malafide and made in colourable exercise of power conferred upon the Land Acquisition Collector and that there was no public purpose for which the premises No. 8/2, Gariahat Road including the land was sought to be acquired and also on the ground of delay in disposal of such proceeding. Before we take up the respective submissions of the learned Counsel for the parties, we may state briefly the facts leading to the filing of this appeal which are as follows:

The writ petitioner/appellant was a tenant in respect of a flat in Premises No. 8/2, Gariahat Road, Calcutta (in short the “acquired property”). By a notification dated 8th May, 1975, the Land Acquisition Collector notified that the acquired property with its vacant land and Premises No. 11/1, Rustomji Street with its vacant land were likely to be needed for a public purpose that is for the construction of building for primary, secondary and intermediate sections and for providing space for recreation, physical training and work education for the students of Path Bhavan which is a well known school in South Calcutta for Boys and Girls. The writ petitioner/appellant and the owner of 1A, Rustomji Street, Calcutta, filed their objections against the aforesaid notification under section 4 of the Act in accordance with section 5A of the Act. Objections were heard. The objection of the appellant was overruled but the objection of the owner of Premises No. 1A, Rustomji Street, Calcutta was accepted. By a notification dated 24th September, 1975, the State Government declared under section 6 of the Act that the acquired property was needed for a public purpose. On the same date, the Land Acquisition Collector, issued another notification cancelling the notification made earlier under section 4 of the Act in respect of Premises No. 1A, Rustomji Street, Calcutta. The acquisition proceeding in respect of Premises no. 1A, Rustomji Street, Calcutta was accordingly dropped by the Land Acquisition Collector on the basis of a report submitted before him inter alia on the ground that the objector who was a widow had no alternative residential accommodation and the income derived from 1A, Rustomji Street, Calcutta was the only source of her income. On or about 4th of January, 1977, the authorities of Path Bhavan School for whom the acquired property was sought to be acquired had written to the concerned authorities whether the acquired property could be acquired under the Act or under the Urban Land (Ceiling and Regulation) Act, 1976. On 17th August, 1976, a letter was issued by the Ministry of Works and Housing advising that Urban Land (Ceiling and Regulation) Act, 1976 was not a bar to acquisition under the Land Acquisition Act. On 14th of February, 1978, the Land Acquisition Collector passed an order awaiting decision of the Government as to whether the Government may consider granting exemption under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for the excess vacant land of 100.43 sq. mts. in the acquired property without awaiting for finalisation of the case under sections 8 to 10 of the Act. On or about 27th June, 1979, a memorandum was issued by the Director of Secondary Education to Path Bhavan enquiring whether acquisition was urgent enough to justify immediate acquisition and whether the school was in a position to and was otherwise agreeable to pay the cost of acquisition. On 29th August, 1979, a letter was received from the school authorities of Path Bhavan in reply to the aforesaid memorandum that the fund position of the school as on 31st July, 1979 was Rs. 2,02,792/- so far as the secondary section is concerned and Rs. 2,62,824/- so far as the primary section was concerned. On 26th February, 1980, a note was sent to the Path Bhavan Authorities to District Inspector of School suggesting that the property could be acquired under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 5th of March, 1980 a note was sent by the District Inspector of School to the Director of Secondary Education by which various informations were supplied and a suggestion was made that the Government may be moved for acquiring the property under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 26th of February, 1981, a note was also sent by the Second Land Acquisition Collector to the Commissioner. Presidency Division seeking his approval of the estimated valuation of the property at Rs. 10,39,341.43/- and also whether the excess vacant land of 100.89 sq. meters might be exempted under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. On 26th June, 1981 it was noted that the acquired property was urgently needed for the development and expansion of the Path Bhavan School and the school authorities had also passed a resolution to the effect that they would bear the estimated cost that-may be assessed by a Court of law as a result of waiving of the provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 30th June, 1981, a note was sent by the Deputy Secretary, Government of West Bengal to the Land Acquisition Collector that the acquisition of the property in question could not be finalised on account of embargo created under the provisions of Urban Land (Ceiling and Regulation) Act. On 30th June, 1981, the Land Reforms Department of the Government of West Bengal made a note that due to general embargo under the Urban Land (Ceiling and Regulation) Act which came into force on 16th of February, 1976, the land acquisition proceeding in question had to be kept in obeyance from being finalised under the Act. The said note contained as follows:—

“In view of the recommendation of the Education Department with the approval of their MIC of waiving provision under the Act and for finalisation of the said proceeding under the L.A Act we may agreed to the finalisation of the proceedings without awaiting for determination of ceiling limit and to issue a revised order under section 7 and instruction to collector as per drafts placed below which may issue after MIC has timely seen and approved.”

On 21st July, 1981 the Land Acquisition Collector wrote to the school authorities requesting them to deposit a sum of Rs. 10,34,342/- as costs of acquisition of the property. On 21st August, 1981, the Second Land Acquisition Collector wrote to the Path Bhavan Authorities regarding non payment of money pursuant to the earlier order dated 21st July, 1981 and as a result thereof delay was caused in finalising the land acquisition proceeding. On 15th December, 1981 a further request was made to the Path Bhavan Authorities for placement of funds in which it was recorded that acquisition proceeding had been held up for want of funds. Before 15th December, 1981, there was some confusion whether the property in question was going to be acquired either under the Urban Land (Ceiling and Regulation) Act, or under the provisions of Land Acquisition Act. Only on 15th December, 1981 it was disclosed by the Authorities that they decided to abandon the acquisition proceeding under the Land Acquisition Act and instead thereof decided to acquire the property in question under the Urban Land (Ceiling and Regulation) Act, 1976 as they were of the view that there was a bar to proceed with the acquisition proceeding under the Land Acquisition Act in view of the general embargo under the Urban Land (Ceiling and Regulation) Act, 1976. But they were also of the view that Urban Land (Ceiling and Regulation) Act, only apply to the vacant land and according to the respondent authority, there was only 100.43 sq. mts. excess vacant land in the premises. The school authorities did not have sufficient funds for the above acquisition when declaration under section 6 was issued. On 11th March, 1982, the writ petitioner/appellant received a notice dated 6th March, 1982 purporting to be under section 9 of the Act calling upon the writ petitioner to appear on 28th March, 1982 to state the nature of interest if any, that the writ petitioner/appellant had in the land for objection to the said notice. The said notice mentioned that the land in question was being acquired for public purpose for construction of building for Path Bhavan School. An objection to this notice was given by a solicitor of the writ petitioner/appellant in which it was stated that the acquisition proceeding initiated by the Second Land Acquisition Collector was arbitrary and illegal and malafide. According to the writ petitioner/appellant, the issuance of notice under section 9 of the Act after the lapse of 7 years had indicated the malafide intention on the part of the authorities in the matter of acquiring the said property. In the reply to the said notice, it was also stated that the fact that the notice in respect of 1A, Rustomji Street was dropped showed that the acquisition proceeding initiated in respect of the said property only was arbitrary, malafide and illegal. Only thereafter the writ application, challenging the aforesaid proceeding, was moved on 16th of April, 1982, and a learned Judge of this Court had issued a rule and further proceeding in the acquisition proceeding was directed to be stayed till the disposal of the rule. The learned Judge by the impugned judgment had discharged the rule and vacated the interim order and accordingly, it is this judgment or order of the learned Judge Which has been taken in appeal.

2. We have heard the learned Counsel for the parties. We have also carefully examined the judgment under appeal and also materials on record. After considering the respective submissions of the learned Counsel for the parties and after examining the materials on record including the judgment under appeal, we are of the view that in the facts and circumstances of this case, the learned Trial Judge was fully justified in discharging the rule by holding that the proceeding initiated for acquisition of the property was taken in accordance with law.

3. Before us, Mr. Saktinath Mukherjee, appearing on behalf of the writ petitioner/appellant contended that since there existed no explanation at all for long delay to finalise the proceeding and concretise the alleged public purpose, the Court must invariably conclude that no public purpose existed or was in sight which could be put in practical shape and, therefore, it must be held that there was ample ground for the Court to hold that the. State Government had exercised power which was colourable and accordingly, the entire proceeding for acquisition under the Act must be held to be bad, arbitrary and without Jurisdiction. Mr. Mukherjee further contended that the valuation of the property could be arrived at on the basis of the date of notification under section 4 of the Act and the writ petitioner/appellant by such long delay would be denied a statutory right to get the market price of property as the valuation of the same would be obviously pegged down to their disadvantage and, therefore, in view of the above, the entire proceeding for acquisition of the property must be struck down by the Court. In support of this contention, Mr. Mukherjee relied on three decisions which are reported in 1994 (1) SCC 44 (Ramchand v. Union of India), AIR 1982 P&H 519 (Radheshyam v. State of Haryana), and AIR 1981 Guj 67 (Shankerbhai Mahijibhai v. State). There is no quarrel about the principles laid down in the aforesaid three decisions. In our view, the facts disclosed herein above would safely indicate that the delay in taking steps in the acquisition proceeding must be condoned in view of various steps and actions taken by the authorities in the matter. In the case of State of U.P v. Smt. Tista Devi, AIR 1986 SC 2025, it has been held by the Apex Court of our country that the post notification delay was not by itself sufficient to render the acquisition proceeding invalid. That is to say, mere delay, if the same is properly explained, cannot vitiate the acquisition proceeding. From the facts stated herein earlier, we are of the view that the facts involved in the present case would invite us to hold that there was no delay in taking steps in the acquisition proceeding and even if there was some delay that should be condoned in the facts and circumstances of this case. Let us, therefore, deal with the facts involved from September, 1975 when section 6 notification was issued and when the notice under section 9 of the Act was served on the writ petitioner/appellant that is in the month of March, 1982. If this delay of about 7 years can be said to have been properly explained by the State authorities, in that case, the acquisition proceeding cannot be struck down on the ground of delay. There is no dispute that the original notification was issued in respect of two properties one of which was released from acquisition subsequently. Since one of the properties was released from acquisition that is 1A, Rustomji Street, Calcutta, no alternative was left to the State Government but to amend the notification issued under section 4 of the Act. In the month of February, 1976, the Urban Land (Ceiling and Regulation) Act came into force. At that stage, it was uncertain what would be the effect of the Urban Land (Ceiling and Regulation) Act on properties under acquisition. For that uncertainty, the State Government directed all land acquisition proceedings to be stayed until such uncertainty was cleared. The said uncertainty was eventually referred to the Government of India. Clearance was received by the State Government from the Central Government in August, 1977. Subsequently, step under section 7 of the Act was taken by which the Collector was to take order for acquisition. The measurement and plan making of the land had to be taken under section 8 of the Act. A revised order under section 7 of the Act was necessited to be passed because of the decision of the Government about non applicability of the Land Ceiling Act. Thereafter, the Path Bhavan Authorities was asked to put in the funds after preparation and approval of estimated cost. The School authorities did not have the fund needed at that time and also asked the State Government to acquire the property under the Urban Land (Ceiling and Regulation) Act finally. In the month of January, 1982, the Path Bhavan Authorities deposited the required amount and only thereafter the Government decided to proceed with the acquisition proceeding. In the month of March, 1982, the required notice was served on the writ petitioner/appellant. From the facts stated above, we are of the view that the delay in proceeding with the acquisition proceeding for the period from September, 1975 and March, 1982 was fully explained and accordingly delay in taking steps to finalise the acquisition proceeding must be condoned. In Gujrat State Transport Corporation v. Valji, Mulji, Soneji, AIR 1980 SC 64, the Supreme Court held in the facts and circumstances of that case that the delay occasioned was not un-reasonable, although delay was more than 15 years between the notification under section 4 and the declaration under section 6 of the Act. Before parting with the question of delay, we must deal with the decisions cited at the bar on behalf of the writ petitioner/appellant in support of the contention that as there was inordinate delay in issuing the notice under section 9 of the Act from the date of declaration under section 6 of the Act, the acquisition proceeding must be struck down. Let us first deal with the decision in the case of Ramchand v. Union of India, 1994 (1) SCC 44. In that decision, the Supreme Court found on the available materials from the record that there was no explanation except that there was several cases and as such in normal course, the Supreme Court held that there was bound to be delay in making the awards. It is true that in that decision the explanation for delay was not accepted by the Supreme Court, but at the same time, the acquisition of the acquired property of the said decision was not struck down only a direction was made for payment of additional amount of compensation which should be made in terms of Aflatoon's case, (1975) 4 SCC 285. In view of our findings made herein above that the materials on record would show that the explanation given by the respondents on the question of delay from the date of issue the notice under section 9 of the Act and the date of declaration under section 6 must be accepted and, therefore, in our view, this decision of the Supreme Court is clearly distinguishable on facts. Next we deal with the decision of the Full Bench of the Punjab High Court in the case of Radheshyam v. State of Haryana, AIR 1982 P&H 519. The principles laid down in the said decision of the Punjab and Haryana High Court cannot be disputed. It is true that delays betwixt notification under section 6 and notice under section 9 are to be viewed in the overall context from the initiation of the proceedings and not from the narrow terminus merely of the date with section 6 notification. It is well settled that each case depends on its facts. In view of our conclusion made herein before that the delay in issuing the notice under section 9 of the Act from the date of declaration under section 6 of the Act has been explained sufficiently by the State respondents, we do not think that in the facts and circumstances of this case, the decision of the Punjab and Haryana High Court can lead us to hold that the entire acquisition proceeding must be quashed and or struck down on the ground of delay. Next we consider the decision of the Gujrat High Court in the case of Shanherbhai Mahijibhai v. State, AIR 1981 Guj 67. Again this case is distinguishable from the facts involved in the present case. In that decision also a Division Bench of Gujrat High Court has struck down the acquisition proceeding on the ground of delay. In paragraph 24 of the said decision, the Division Bench gave their reasons for striking out the acquisition proceeding which, in our view, should be quoted, paragraph 24 runs as follows:—

“There is nothing on record in the instant case to show while notice under section 9 was issued after a lapse of 4½ years from the date of the declaration under section 6 except that the addendum was issued sometime in December, 1979. We have already held that the addendum was purely elucidatory and did not bring about any change in the area or the identity of the land under acquisition. Secondly need to issue the addendum could not have withheld the issuance of notice under section 9. Assuming that we are wrong in making this observation addendum could have been issued in 1977 when the town planning scheme became a part of Bombay Town. Planning Act. We, therefore, see no reason why more than 4½ years should have been taken in the issuance of notice under section 9. Such a long lapse of time subjects the land owner to a number of unforeseen and avoidable hardships.”

4. In view of our findings made herein above regarding the explanation of delay by the State respondents to issue the notice under section 9 of the Act after declaration made under section 6 of the Act, we do not find any reason to apply the aforesaid decision of the Gujarat High Court as the said decision was based on different facts namely in the said decision, there was nothing on record to show why notice under section 9 was issued after a lapse of 4½ years from the date of declaration under section 6 of the Act. Therefore, we are unable to rely on this decision for the purpose of coming to a positive conclusion that in view of inordinate delay in the issuance of notice under section 9 of the Act after the declaration was made under section 6 of the Act, the acquisition proceeding was liable to be struck down.

Mr. Panja, appearing with Mr. Saktinath Mukherjee, however, sought to distinguish the decision of the Supreme Court in the Gujarat Road Transport Case by submitting that in that decision, there was delay of 15 years between notification under section 4 and declaration under section 6 of the Act, whereas in the present case although notification under section 6 was issued within four months from the date of notification under section 4 of the Act, delay of about 6 years had occasioned due to the notice issued under section 9 of the Act after the date of declaration under section 6 of the Act. According to Mr. Panja, as in the aforesaid decision of the Supreme Court, the specific amendment made in the Act in the year 1967 was considered and by the amendment fixed time has been prescribed within which section 6 declaration must be issued and as there is no such time limit prescribed for issuance of notification under section 9 after section 6 is issued, the State respondents must act within reasonable time. In view of our findings made herein above about the acceptance of the explanation given by the State Government, regarding the period from the issuance of declaration under section 6 and the notice under section 9 of the Act and in view of the admitted position in law, that there was no time limit in section 9 of the Act by which the notice under section 9 could be issued, the submission of Mr. Panja cannot be accepted. Mr. Panja contended that since section 11A clearly provides that an award under section 11 shall have to be made by the Collector within two years from the date of publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse. According to Mr. Panja, in the present case, the publication of declaration under section 6 was made in the year 1976 and, therefore, award under section 11 must be made within a period of two years from the date of such publication, and, therefore, the entire acquisition proceeding must lapse. In our view, this submission of Mr. Panja is of no substance. It is true that section 11A of the Act clearly says that an award under section 11 shall be made by the Collector within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceeding for acquisition of the land shall lapse. It must not be forgotten that there is a proviso to section 11A of the Act which clearly says that in a case where the declaration has been published before commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. In our view, proviso to section 11A clearly applies to the facts and circumstances of this case. In this case declaration under section 6 was issued in the year 1976 when the Land Acquisition (Amendment) Act, 1984 did not come into force. As soon as the Land Acquisition (Amendment) Act, 1984 came into force then the award shall be made within a period of two years from such commencement. Admittedly this amendment came into force in 1984. Therefore, in terms of proviso to section 11A, it was open to the Collector to pass an award, within two years from the date of commencement of the Land Acquisition (Amendment) Act, 1984. Therefore, we must hold that within two years from the date of commencement an award could be passed under section 11A of the Act. Therefore, it was open to the Collector to pass an award in respect of the acquired property within the year 1986. It is true that even today no award has yet been passed by the Land Acquisition Collector. Explanation to section 11A of the Act clearly says that in computing the period of two years referred to in section 11A of the Act, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court, shall be excluded. In the present case, admittedly question of passing an award within two years from the date of declaration could not arise at all as we find that the present writ application was moved in the year 1982 and by an interim order, the acquisition proceeding was stayed till today. That being the position, we are of the view that the question of quashing and/or setting aside the acquisition proceeding in accordance with section 11A of the Act in the facts of this case cannot arise at all. In Kaliyaappam v. State of Kerala, AIR 1989 SC 239, the Apex Court of our country has made it clear that an award of the Collector would not be liable to be quashed on the ground of inordinate delay where it has been made at the end of two years from the date of commencement of the Land Acquisition (Amendment) Act, 1984 as maximum period within which the award can be made suggests that the time taken by the Land Acquisition Officer in such a case to make the award cannot be considered to be fatal to the acquisition proceeding. In view of the aforesaid decision of the Supreme Court, we are unable to rely on the Single Bench decision of the Andhra Pradesh High Court in the case of Pappala Murthy v. State of Andhra Pradesh, AIR 1981 A.P 271. The Single Bench of the Andhra Pradesh High Court had not only taken into consideration the delay in issuing the notice under section 9 after issuing the declaration under section 6, but it had also taken into consideration the delay in passing award which was about 5 years from the date of issuing the notice under section 9 of the Act.

On behalf of the writ petitioner/appellant, it was further contended that after Premises No. 1A, Rustomji Street was released from acquisition, the entire proceeding including the notice under section 9 of the Act must be held to be bad in law. We are unable to agree with this submission of Mr. Panja. The writ petitioner was entitled to file objection under section 5A of the Act in which he could legitimately claim that the property cannot be acquired on the ground mentioned in the notification or the acquisition was not for public purpose and the authority shall consider such objection regarding the notification issued in respect of the property proposed to be acquired and after hearing the objector, the collector shall dispose of the objection either releasing the property from acquisition or overruling the objection raised on behalf of the objector. In this case the objection was heard and the same was overruled by the Collector. Therefore, the question of giving further right to file objection regarding the property of the writ petitioner/appellant would not arise at all as the writ petitioner/appellant was entitled to question the notification under section 4 only in respect of the property in which he was concerned. Accordingly, this submission of Mr. Panja is of no substance and is overruled.

5. There is another aspect of this matter. In the writ petition which was moved in the year 1982 and disposed of in the month of December, 1998 by the impugned order under appeal, the ground of delay for quashing and/or setting aside the acquisition proceeding however, was not taken. That being the position, we may also legitimately observe that since the writ petitioner/appellant did not question the acquisition proceeding on the ground of delay in the original petition, it is not open to him to challenge the acquisition proceeding on the ground of delay only in appeal. In any view of the matter, as we are of the view that the delay for finalising the acquisition proceeding was fully explained by the State Government, the contention of Mr. Mukherjee that in view of long delay of more than 6 years from the stage of section 6 to section 9 of the Act, the entire proceeding of acquisition must be held to be bad, cannot be accepted. In the present case, the writ petitioner/appellant admittedly filed his objection to the notification under section 4 of the Act. He was also aware of the second notification passed under section 4 of the Act which was necessitated to be issued in view of the release of Premises No. 1A, Rustomji Street, Calcutta from the first notification. Although he was aware of the second notification, he did not approach the writ court until the year 1982 when the possession of the acquired property was going to be taken in terms of section 9 of the Act. The only explanation given by the writ petitioner/appellant is that he had presumed that the land acquisition proceeding in respect of premises No. 8/2, Gariahat Road, had been dropped. In our view, he had no reason to make such assumption. He was aware that his objection to the notification under section 4 of the Act was overruled by the State-respondent and he was also aware that steps were taken to acquire the property at 8/2, Gariahat Road, Calcutta on the basis of the notification issued under section 4 of the Act. In our view, therefore, delay in moving the writ application by the writ petitioner after issuance of the notice under section 9 of the Act was fatal and accordingly, the writ petition itself ought to have been rejected on the ground of delay in moving the same. In the case of Ramchand v. Union of India, 1994 (1) SCC 44, the Supreme Court at paragraphs 24 and 25 has clearly held that when the writ petitioner waited too long before approaching the Court, the land acquisition proceeding would not be set aside and only in appropriate case additional compensation may be directed to be paid. On behalf of the appellant, it was next contended by Mr. Mukherjee that there was discrimination in choosing the premises of the writ petitioner at 8/2, Gariahat Road, Calcutta as by the first notification, two premises were sought to be acquired but because of the objection raised by the owner of the other premises, the other premises was released from acquisition and the second notification was issued in respect of 8/2, Gariahat Road, Calcutta only. According to the learned advocates for the appellant, this action of the State respondent was clearly discriminatory in nature, and, therefore, the acquisition of the premises must be held to be arbitrary and mala fide. It is not in dispute that the first notification was issued in respect of two properties. It is also not in dispute that the owner of the premises had filed an objection. The Government in its discretion had accepted such objection and released the other property from acquisition. It is open to the State Government under the Act to accept the objection regarding acquisition of a particular premises and release the same from such acquisition. Only question that can be gone into is that such release of a premises after hearing the objection was arbitrary or mala fide. In the present case, we do not find any thing from the materials on record that the release of the other premises from acquisition was done in a mala fide or arbitrary manner. We also do not find any attack made by the writ petitioner/appellant in the writ application to the extent that such an action on the part of the State/respondent was either arbitrary or mala fide. Accordingly, we are unable to agree with Mr. Mukherjee that the State Government had acted in a discriminatory manner by releasing the premises 1.A, Rustomji Street, Calcutta and by rejecting the objection filed by the writ petitioner/appellant in respect of the property in question. The learned Counsel for the appellants in this connection had also raised a further submission. They contended that as the owner of 1.A, Rustomji Street in her objection to the notification under section 4 of the Act had offered another alternative premises for acquisition by the Government, the State Government had acted mala fide by not acquiring the said property and releasing the premises of the writ petitioner/appellant. We have carefully considered this submission of the learned advocates for the appellant. In our view, there is no merit in this submission. It is true that from a report of the concerned authority, it would be evident that there was another property which was offered for acquisition for the public purpose for which the said property was sought to be acquired under the Act, but from the materials on record and also from the statements made in the writ application, we are unable to agree with the learned advocates for the appellants that the premises offered by the owner of 1.A, Rustomji Street was similarly placed building which could be acquired by the State Government for the public purpose for which the said property was sought to be acquired. At the risk of repetition we may add that the writ petitioner/appellant in the present writ application has not given any material to show that the property offered by the owner of 1.A, Rustomji Street and Premises No. 8/2, Gariahat Road, Calcutta which is under acquisition were similarly placed in all respects particularly for the public purpose for which Premises No. 8/2, Gariahat Road was sought to be acquired. Therefore, we are of the view that in the absence of further materials, we are unable to hold that the State respondent had proceeded in a discriminatory manner by not releasing the said property from acquisition in view of an alternative site available for the school authorities. In any view of the matter, we are of the view that the allegation of discrimination cannot stand in the way for acquiring any property under the Land Acquisition Act. The decision of the State Government whether any property is required for a purpose or not would rest in the State Government, only thing that can be gone into by the Court is whether in taking such decision, the State Government had acted mala fide and in colourable exercise of power. We have already held in the present case that by taking such decision, it could not be held by the Court that the State Government had acted mala fide and in colourable exercise of its power under the Act. Considering the fact that the writ petitioner has not made out such a case in the writ application excepting that the reports of the concerned authority indicated that there was an alternative site, no materials could be produced by the writ petitioner/appellant and as High Court was exercising extraordinary jurisdiction under Article 226 of the Constitution. It must be held whether one particular property would be better for acquisition would rest on the authorities and not on the Court. In our view, even then the action taken by the State authorities to acquire 8/2, Gariahat Road, Calcutta for the purpose of construction of a building there for the use of the school authorities cannot be said to have been taken in colourable exercise of power in the facts and circumstances of this case. It is true that a report was submitted by the Second Land Acquisition Collector suggesting to acquire the vacant land at premises No. 23/1, Rustomji Street, Calcutta which was offered by the owner of 1A, Rustomji Street, Calcutta for acquisition and for the construction of the school building. Excepting this report, there is no other material on record to show that the said land at 23/1, Rustomji Street, Calcutta could be acquired for the purpose of acquisition as it would better serve the school authorities. In our view, whether or not any alternative land would better serve after its acquisition is not relevant as such but what is relevant is that if there is alternative site which can be acquired without causing inconvenience or the purpose intended would be better served by acquisition of that property and if the Land Acquisition Collector does not take that land into consideration for acquisition, then only the order and the report may become vulnerable as arbitrary. It is well settled that it is in all such cases, the Land Acquisition Collector is required to go into the technical aspect of preference in a particular acquisition proceeding. What he is to be satisfied is that there must be some cogent reasons for not accepting the alternative property. To that limited extent, the Land Acquisition Collector is obliged to consider the question of acquiring any alternative site proposed to him. Merely suggesting an alternative site is not enough because the requiring authority or the acquiring authority is entitled to make a choice from several alternatives. It has to be indicated that the alternative site proposed is a better site in the sense that either this would better subserve the purpose of the requiring authority or that this would cause less hardship to the persons whose properties are being acquired or that the acquisition of the alternative site would be less expensive either for the acquiring authority or the requiring authority. In the absence of such suggestions and only on reliance of such report it cannot be held that the entire acquisition proceeding in respect of the said property was the outcome of a colourable exercise of power on the part of the State authorities. In the present case, two properties were sought to be acquired by the first notification issued under section 4 of the Act. The two properties were (1) 8/2, Gariahat Road, Calcutta and (2) 1A, Rustomji Street, Calcutta. Premises No. 1A, Rustomji Street, Calcutta was released from acquisition on the basis of the report which had also suggested that 23/1, Rustomji Street, Calcutta could be acquired for the construction of the school building. From a plain reading of the report, it does not appear that 23/1A, Rustomji Street, Calcutta would better serve the school authorities than the premises sought to be acquired that is 8/2, Gariahat Road, Calcutta. At the risk of repetition, there is nothing on record from which it can be said that if the property at 23/1A, Rustomji Street, Calcutta is acquired, the requirement of the requiring authority would be better served. The writ petitioner/appellant had failed to produce any materials to satisfy the Court on the above aspect of the matter and that being the position, we are unable to agree with the submission of Mr. Mukherjee that in view of the report of the Second Land Acquisition Collector that an alternative site at 23/1A, Rustomji Street, Calcutta was available for acquisition for the purpose in question, the acquisition proceeding started in respect of Premises No. 8/2, Gariahat Road, Calcutta must be taken to have been made in the colourable exercise of power under the Act by the State-respondents. Accordingly, this part of the submission of Mr. Mukherjee cannot also be accepted.

6. Before parting with this question, let us now deal with the decision cited on behalf of the appellant in support of the contention which is now under the consideration. Mr. Mukherjee relied on a Single Bench decision of this Court in the case of Daga Auto Service Pvt. Ltd. v. Land Acquisition Collector, AIR 1978 Cal 1. In our view, the principles laid down in the said decision would help the State-respondents in view of our discussions made herein above.

For the reasons aforesaid, we are of the view that in the facts and circumstances of this case, the question of discrimination cannot arise at all which may be taken as a ground for setting aside the acquisition proceeding. Therefore, we are unable to agree with the submission of the learned advocates for the appellants that since an alternative site was available for acquisition to the authorities, the present acquisition proceeding must be held to be mala fide and in the colourable exercise of power, and, therefore, the entire proceeding must be struck down. It was next contended on behalf of the writ petitioner that during the pendency of the writ petition more precisely in the year 1997 that is 15 years after the writ petition was moved in this Court, a large area of land has been purchased at Kasba area in South Calcutta by the school authorities and, therefore, the purpose for which the premises was sought to be acquired had lost its force and accordingly, this Court must hold that the proceedings for acquisition had, therefore, lapsed and accordingly, the entire proceeding for acquisition must be quashed. In support of this contention, a Division Bench decision of the Bombay High Court in the case of Industrial Development and Investment Company Pvt. Ltd. v. State of Maharashtra, AIR 1989 Bom 156 was relied on. Mr. Mukherjee, therefore, contended that as the public purpose specified in the declaration under section 6 of the Act must continue to subsist until the land vests in the State and in a case where the public purpose ceases to continue, proceedings for acquisition must be held to be not merely voidable. In the facts and circumstances of this case, we are of the view that the principles laid down in the aforesaid decision of the Bombay High Court can not be applied to the present case. It appears that since 1975, for the construction of a school building, the school authorities have been trying to get land in the Ballygunge area of South Calcutta. Finding the requirement of the school authorities as genuine, the State Government had sought to acquire the said property. It was not disputed before us by the parties that the Path Bhavan School is having three or four branches in the Ballygunge area of South Calcutta and all of them are run in tenanted accommodations. It was also not disputed before us by the parties that the land which was purchased in the year 1997 is situated in an area which is not within the Ballygunge area of South Calcutta where the tenanted buildings of Path Bhavan School are now situated. If the Court is permitted to take into consideration the area in which the present buildings of the school authorities are situated and the area where the land has been purchased by the school authorities, there will be no difficulty in holding that the school which is running in the Ballygunge area of Calcutta for a long time cannot be asked to shift its buildings to an area which is far off from the area where the school is presently running. Apart from that it must not be forgotten that the land has been purchased by the school authorities only in 1997 that is after 15 years from the date of moving the writ application, when they possibly lost all hope of a decision of the pending writ petition. In any view of the matter, the fact of acquiring a property by the school authorities after more than 20 years of initiating the acquisition proceeding in respect of the acquired premises could not be said to be fatal for the purpose of acquiring the property in question. Accordingly, we not agree with the submission of the learned Advocate for the appellant that in view of the purchase of some lands in the year 1997, when the writ petition was pending in this Court, the entire proceeding must be said to have lapsed. Let us now deal with the decision of the Bombay High Court which was relied on behalf of the appellant in support of the contention that in view of the subsequent event (in this case purchase of land during the pendency of the writ petition), the necessity to acquire the property had vanished and, therefore, the acquisition proceeding must be quashed. In our view, the decision of the Bombay High Court was rendered in a different fact situation. In that decision, after the declaration under sections 6 and 9 of the Act, the specified public purpose namely extension of Dharavi Purification Plant set out in the notification under section 6 of the Land Acquisition Act was totally abandoned and reservation had been changed in the year 1979 and the Government of Maharashtra had sanctioned modified proposals for Bandra Kurla Complex prepared by the planning authority. In the background of this fact, that is to say the entire specific purpose for which the said land was sought to be acquired was abandoned by the State Government, the Division Bench of the Bombay High Court held that subsequent abandonment of the public purpose would vitiate the entire acquisition proceeding. In our view, such a situation does not arise at all in this case. The specified public purpose for which the land was sought to be acquired has not been abandoned by the State Government nor the school authority after their purchase of the land in Kasba area in Calcutta would be forced to say that the requirement of land in the Ballygunge area at South Calcutta, for construction of a building had come to an end. Since the necessity for acquiring the property was still subsisting, it cannot be said that only because the land has been purchased in a distant area from the area in which the school is running, the entire proceeding for acquisition must be held to have lapsed and, therefore, must be quashed.

7. Before parting with this judgment, a preliminary objection raised on behalf of the respondents may be dealt with. According to the learned advocate for the respondents, the writ petitioner being a tenant in respect of a flat in premises No. 8/2, Gariahat Road, Calcutta cannot move this Court under Article 226 of the Constitution to challenge the acquisition proceeding, as according to the learned advocates for the respondents, a tenant cannot be considered to be a “person interested” within the meaning of section 3(b) of the Act. We have carefully considered the argument advanced on behalf of the respondents on this preliminary objection. After hearing the learned counsel for the parties, and after considering their respective submissions. We have no hesitation in our mind to hold that a tenant can maintain a writ application under Article 226 of the Constitution in which he can very well challenge the acquisition proceeding, as, in our view, he must be held to be a “person interested” within the meaning of section 3(b) of the Act read with section 5A of the Act. Section 3(b) of the Act says that “persons interested” includes all the persons claiming interest in compensation to be made on account of the acquisition of the land under the Act and a person shall be deemed to be interested in land if he is interested in easement of affecting the land. The writ petitioner/appellant was admittedly a tenant in respect of a flat under the owner of Premises No. 8/2, Gariahat Road, Calcutta and is admittedly governed by the provisions of the West Bengal Premises Tenancy Act, 1956. Section 2(h) of the West Bengal Premises Tenancy Act defines “tenant”. It says that the tenant means any person by whom or on whose account or behalf, is, but for special contract would be payable and includes any person continuing in possession after termination of his tenancy or in the event of such person's death such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. From a careful consideration of the aforesaid definition of tenant as made in section 2(h) of the West Bengal Premises Tenancy Act, and after considering other relevant provisions of the West Bengal Premises Tenancy Act, 1956, we have no hesitation in our mind that the tenancy of a tenant in respect of his tenanted premises is a property and, therefore, a tenant in the matter of acquisition of such property has direct interest in the matter of payment of compensation of the acquired property and, therefore, in terms of section 3(b) of the Act, a tenant must be considered to be a “person interested” and, therefore, has every right to challenge the acquisition proceeding. In the case of Rajendra Kr. Gupta v. State of U.P, (1997) 4 SCC 511, the Supreme Court had considered the case of a lessee to challenge an order of requisition or acquisition and in paragraph 12 of the said decision at page 524, the Supreme Court has observed as follows:

“By that time the original lessee had sufficient interest in the leases which could be validly transferred to the present appellants and that is exactly what has been done by the original lessee. It could not be said, therefore, that the appellants has no locus standi to challenge the impugned order of requisition when they were having unexpired lease period with them entitling them to remain as lessees under validly subsisting leases of this two nazul lands. Even though lands were nazul lands still the leases were legally terminated by the authorities, the leasehold interest of the original lessee and the appellants who were successor in interest of the original lessee remain intact…………….. For the present purpose, it is sufficient to indicate that the appellants at the time when the impugned order of requisition was passed and even till death has sufficient locus standi to challenge the said order ought to claim restoration of their leasehold rights in the said lands and the possession thereof.”

(Emphasis supplied)

Similarly a tenant under the West Bengal Premises Tenancy Act cannot be evicted from his tenanted premises except one and or more grounds mentioned in section 13 of the Act are found against him. Therefore, a tenant who is governed by the West Bengal Premises is a tenant on whom certain rights and privileges have been conferred under the said Act. In view of definition of “tenant” in section 2(h) of the West Bengal Premises Tenancy Act, the rights of a tenant are veritable and his right to occupy the acquired property remains till he is evicted in due process of law. In any view of the matter, we are of the view that the word “person interested” in section 3(b) of the Act is a wide term which would include a tenant who is governed by the West Bengal Premises Tenancy Act. Therefore, we are of the view that a tenant who is governed under the provisions of West Bengal Premises Tenancy Act is a “person interested” within the meaning of section 3(b) of the Act and accordingly, he has locus standi to challenge the acquisition proceeding before this Court under Article 226 of the Constitution. In this connection, a Division Bench decision of the Andhra Pradesh High Court in the case of Kotari Satyanarayana v. District Collector, Krishna, AIR 1990 A.P 326, must be referred. In that decision Quadri, J. (as His Lordship then was) held that a tenant governed by the Andhra Pradesh Tenancy Act is a “person interested” and, therefore, he can file objection under section 5A of the Act relating to acquisition of the property sought to be acquired. In a celebrated decision of the Division Bench of the Calcutta High Court in the case of Kumilla Electric Supply Ltd. v. East Bengal Bank Ltd., Kumilla, AIR 1939 Cal 669, it was held that whether a company which was a tenant in respect of the land in question could be construed to be a “person interested” within section 3(b) of the Act. In that decision, the Division Bench of this Court held that such company was entitled to challenge the acquisition proceeding as they were “persons interested” within the meaning of section 3(b) of the Act. The principles laid down in the Division Bench of this Court are relevant for our purpose and accordingly, the said portion of the judgment is reproduced below:—

“It cannot be disputed that in the present case not only was the acquisition made at the instance, and for the benefit of the petitioner company, but they were claimants also who admittedly had some interest in some of the plots which were the subject-matter of acquisition. It has been held by this Court in CLJ 256, that in such cases all the provisions of the Land Acquisition Act are applicable and the Collector would have to acquire the aggregate of rights in the land including the interest which is claimed by the company or local authority at whose cost the acquisition is made. The petitioners, therefore, are persons interested within the meaning of section 3(b), Land Acquisition Act, and they would have a right to demand a reference under section 18 of the Act unless that right has been taken away by some other provisions in the Act.”

From the aforesaid decision of the Division Bench of this Court it is abundantly clear that a tenant who admittedly has interest in the acquired property can challenge the acquisition proceeding or file an objection under section 5A of the Act as he must be said to be a “person interested” within the meaning of section 3(b) read with section 5A of the Act. In this connection, reference can also be made to a decision of the Supreme Court in the case of Smt. Vidya Wati v. Collector of Agra, AIR 1979 SC 733. In that decision, the Supreme Court held that a tenant was entitled to a share of compensation payable in respect of the acquired property and, therefore, a tenant is a “person interested” within the-meaning of section 3(b) of the Act. In that decision, only point which was raised before the Supreme Court was that whether the entire amount fixed for payment of compensation should go to the landlord only or should be shared between the landlords and the tenants. However, the High Court deleted the direction made by the District Court to the effect that the entire compensation must be paid over to the landlord. The Supreme Court in the said decision observed as follows:—

“We think this was done very rightly. There is no doubt that aportionment does not come into the picture any reference under section 18. Factually, there is no doubt that there are some tenants on the land. In this view, the direction given by the High Court that the entire amount shall not be payable to the landlady and the direction given by the District Court to that effect shall be delayed was just legal.”

It would be further evident from the said decision that the Supreme Court made a direction on the Collector to pay to the land owner only the share that was due to him out of the total compensation and, thereafter the Collector shall further proceed to determine shares due to the tenants in respect of the land on the date of notification. From this decision, it is pellucid that the tenant was entitled to a share of the compensation in respect of the acquired property and, therefore, he must be a person interested within the meaning of section 3(b) of the Act read with section 5A of the Act. Mr. Bhattacharyya, appearing on behalf of the school authorities however had drawn our attention to a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Industrial Development Investment Company Pvt. Ltd., 1996 SCW 3871, particularly the following portion of the said judgment which is as follows:—

“It is equally settled law that a tenant cannot challenge the notification under section 4 and declaration under section 6 of the Act when the landlord himself had accepted the award and received the compensation.”

Relying on the aforesaid observation of the Supreme Court made in its aforesaid decision, Mr. Bhattacharyya contended that it was not open to the writ petitioner/appellant to challenge the acquisition proceeding under Article 226 of the Constitution. We do not find any substance in this argument of Mr. Bhattacharyya. It is true that in the aforesaid decision of the Supreme Court, the aforesaid observation was made. In that decision, in fact, the Supreme Court was dealing with the question when an award under section 11A was not made within two years from the date of publication of the declaration under section 6 of the Act, the notification issued under section 4 would automatically lapse or not. In that context, only the aforesaid general observation was made by Ramaswamy, J. (as His Lordship then was) by observing that it is well settled that the tenant cannot challenge an acquisition proceeding when the compensation awarded was accepted by the owner of the acquired property and possession of the same was taken over by the State Government or by the requiring authority. In our view, the aforesaid general observation of the Ramaswamy, J. (as His Lordship then was) was made in that decision on a consideration of fact that the portion of the acquired property was already taken and award was already made and received by the owner of the said property. In any view of the matter, we must keep in our mind that no question was however, raised before the Supreme Court that a tenant cannot either raise any objection against the acquisition of the property under section 5A of the Act or even challenge the acquisition proceeding under Article 226 of the Constitution before the High Court. It appears that the aforesaid decision was made by a Bench consisting of K. Ramaswamy (as His Lordship then was) and S.B Mazumdar, J. The aforesaid observation as noted herein above was made by K. Ramaswamy, J. in his judgment. S.B Mazumdar, J. however, delivered a separate judgment concurring with the ultimate decision of K. Ramaswamy, J. In paragraph 32 of the said judgment S.B Mazumdar, J. has clarified the position regarding the right of a tenant either to challenge the acquisition proceeding or to file an objection under the Act against the proposed acquisition of a property. In that paragraph, S.B Mazumdar, J. also had taken into consideration the aforesaid observation made by K. Ramaswamy, J. in his judgment regarding the right of a tenant to question the acquisition proceeding or to file objection under section 5A of the Act. The observations made in this connection at paragraph 32 of the aforesaid decision by S.B Mazumdar, J. may be quoted which are as follows:—

“I also do not subscribe to the general observation that a sitting tenant of the land which comes to be subjected to acquisition proceedings under sections 4 and 6 of the Land Acquisition Act, in no case can challenge the said acquisition proceedings. In appropriate cases such a challenge can be levelled by the concerned tenant having sufficient subsisting interest in the land.”

From the aforesaid observation of S.B Mazumdar, J. and in view of the fact that the question regarding the right of a tenant to object to the acquisition proceeding or to challenge the acquisition proceeding under Article 226 of the Constitution was not pressed into action before the Supreme Court in the aforesaid decision and in view of the decision of the Supreme Court in the case of Rajendra Kr. Gupta v. State of U.P, 1997 (4) SCC 511, it is no longer res Integra that a tenant can challenge an acquisition proceeding or object to the notification issued under section 4 of the Act in terms of section 5A of the Act. On this question, Mr. Bhattacharyya also relied on a decision of the Supreme Court in the case of Janaki Mahato v. State of Bihar, 1993 (Supple 2) SCC 358. In our view, this decision cannot have any manner of application to the facts and circumstances of this case. The fact situation in the said decision of the Supreme Court was completely different. In that case, no objection was filed by any person against the notification under section 4 of the Act, whereas in the present case, the writ petitioner/appellant as a tenant objected to such acquisition by filing an objection under section 5A of the Act. The objection of the writ petitioner/appellant was taken into account. After hearing the parties the said objection against the acquisition proceeding was overruled. No question was raised by the State respondent that a tenant cannot file an objection under section 5A of the Act as a tenant is not a “person interested” within the meaning of section 3(b) and 5A of the Act. Only this question has been raised by the respondents at the time of disposal of the writ petition as well as at the time of disposal of this appeal. In any view of the matter, from the Supreme Court decision it is evident that the company deposited the compensation money on 28th March, 1986 which was fixed for payment of compensation whereas section 4 notification was issued on 16th June, 1981 and section 6 declaration was made on 24th February, 1982. In that decision the Land Acquisition Collector entertained the objection first time in June, 1986. That being the position, we must hold that the decision of the Supreme Court was rendered in a different fact situation. In any view of the matter, the aforesaid decision of the Supreme Court on the question of locus standi of the writ petitioner was based on a different point that is to say in that decision, it was found by the Supreme Court that the writ petitioner had no right to collect slurry whereas in the present case, admittedly the writ petitioner/appellant is a tenant who is in possession of his flat in the property in question.

No other point was raised on behalf of the appellant and accordingly, this appeal has no merit and is, therefore, is dismissed without any order as to costs.

Before parting with this matter, we should take note of a fact which is also important for the purpose of deciding this appeal. It is not in dispute that the original notification issued under section 4 of the Act was served on the writ petitioner/appellant and also on Raghavendra Tripathi, another tenant of the property in question. The said tenant by a separate writ application being Matter No. 363 of 1982 moved this Court under Article 226 of the Constitution in which he also challenged the acquisition proceeding. By a judgment dated 8th May, 1986, a learned Single Judge of this Court rejected the said writ application. It is now admitted before us that the said Raghavendra Tripathi has already vacated his tenanted premises and possession has already been taken over by the State Government that is now in possession of the same. Such being the position, and in view of the admitted fact that on the similar set of facts a writ petition was dismissed by the learned Judge of this Court and possession has already been taken from that writ petitioner, it would not also be proper for this Court to hold that the acquisition proceeding is liable to be quashed when in a similar proceeding it was held that there was no reason to quash the acquisition proceeding in question.

For the reasons aforesaid, this appeal is dismissed. Interim order, if there be any shall stand vacated. There will be no order as to costs.

Let a xerox copy of the judgment duly signed by the Assistant Registrar of this Court be given to the parties upon their undertaking to apply for certified copy of the judgment.

S.K Tiwari, J.:—I agree.

Appeal dismissed.

A.A