Non-Service Of Requisition Order Doesn't Vitiate Land Acquisition; Section 3(2) Of 1948 Act Is Directory: Calcutta High Court

"Non-service of a notice under Section 3(2) of the 1948 Act does not vitiate the requisition and/or subsequent acquisition proceeding," Calcutta High Court, in a significant ruling, held that the requirement to serve a requisition order under Section 3(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948 is directory rather than mandatory.

A single-judge bench of Justice Hiranmay Bhattacharyya observed that the non-service of such an order does not render subsequent acquisition steps non-est or void, particularly when challenged after inordinate delay. The Court emphasized that the primary purpose of such a notice is merely to notify the concerned person that possession would be taken, and the statute provides no sanction for its non-observance.

The petitioners challenged land acquisition proceedings initiated in 1993-94 concerning a plot in Mouza Kasba, Kolkata, which had been acquired for a township project. They contended that the mandatory requisition order under Section 3(1) of the 1948 Act was never served upon their predecessor-in-interest, rendering the entire process a nullity. The land had already vested in the State, and the petitioners sought its release from the scope of acquisition decades after the proceedings were finalized.

The primary question before the court was whether the provisions of Section 3(2) of the 1948 Act, which stipulate the service of a requisition order, are mandatory or directory. The court was also called upon to determine whether a challenge to land acquisition could be entertained after a delay of over 26 years and whether land, once vested absolutely in the State under Section 4(1a), could be divested.

Tests To Determine Mandatory vs Directory Nature Of Statutes

The Court surveyed well-settled legal tests to determine whether a statutory provision is mandatory or directory. It noted that while the use of the word "shall" usually indicates a mandatory command, the real intention of the legislature must be gathered from the statute's scheme. The bench observed that provisions creating public duties are generally directory, whereas those conferring private rights are often mandatory.

Court Explains Legislative Intent Behind Section 3(2)

The Court highlighted that Section 3(2) uses the word "shall" but does not prescribe any specific consequence or sanction for non-compliance. It noted that the purpose of the notice is to inform the owner or occupier so they may comply with the order. The bench reasoned that if the person fails to comply, Section 3(3) provides a mechanism for the Collector to execute the order and take possession, meaning the requisition itself remains valid even without prior service.

Binding Precedent Declares Previous View Per Incuriam

The Court relied heavily on a binding Division Bench decision in Madhurina Mitra v. State of West Bengal (2026). That ruling had concluded that the earlier proposition in Sailendra Nath Pal (2010)—which treated Section 3(2) as mandatory—was per incuriam. The Division Bench had found that the Sailendra Nath Pal view ignored earlier precedents and was impliedly overruled by the Supreme Court’s findings in May George v. Special Tahsildar (2010).

"The purpose of a notice under sub-section (2) is only to notify a person that possession of the land would be taken."

Doctrine Of Laches And Inordinate Delay

The Court dealt strictly with the timeline of the challenge, noting that the petitioners approached the judiciary nearly 26 years after the notice under Section 4(1a) was published in 1995. It was observed that the petitioners’ predecessor was aware of the proceedings, as his name appeared as an awardee in related acquisition cases for the same plot. The bench held that the "sinister silence" maintained for decades disentitled the petitioners to any discretionary relief under Article 226 of the Constitution of India.

Absolute Vesting Of Land Extinguishes Private Title

The Court clarified the legal effect of Section 4(1a), stating that once a notice is published in the Official Gazette, the requisitioned land vests absolutely in the State Government free from all encumbrances. Justice Bhattacharyya noted that once land vests in the State, it cannot be divested, and subsequent entries in municipal records or the record of rights cannot confer title back upon the petitioners. The Court emphasized that no person can claim even an equitable title by remaining in possession after absolute vesting.

Right To Property Under Article 300A

While acknowledging that the right to property is a constitutional and human right under Article 300A, the Court held that the State had followed the due process of law in this instance. It noted that compensation had been determined and deposited with the Special Land Acquisition Judge. The bench distinguished recent Supreme Court rulings like Kolkata Municipal Corporation v. Bimal Kumar Shah (2024), stating they were not applicable to the specific statutory framework of the 1948 Act as interpreted by the binding Division Bench.

"Once there is absolute vesting in the State, it is vesting along with possession and thereafter a person who remains in possession is only a trespasser."

The Court concluded that the acquisition was valid and the challenge was hopelessly barred by the doctrine of laches. It held that there was no scope for the release of the property as the title had passed absolutely to the State Government for public purposes. Consequently, the writ petition was dismissed on both merits and the ground of delay.

Date of Decision: 28 April 2026