Lalit Mohan Basu v. STATE OF WEST BENGAL — 1984 DIGILAW 267 (CAL)

Judgment 1. ONE Lalit Mohan Bose since deceased and his brother Krishna Hari Base since deceased were the owners of the plot of' land being No. 750, J. L. No. 3, Mouza salampur, P. S. Kulti, District burdwan measuring more or less. 2. 34 acres krishna hari. Base died leaving behind his wife Pra tihamoyee Bose and two daughters, chameli Ghosh and Anjali Mitra. Upon the death of Pratibhamoyee Bose, Chameli ghosh and Anjali Mitra became the successors- in- interest in respect of the share of Krishna Hari Bose since deceased in the said plot of land along with Lalit Mohan Bose since deceased. 2. THE Collector and District Magistrate Burdwan issued two. several notices land/or orders requisitioning the said plot of land, one to Lalit Mohan Bose, since deceased and the other to the said pratibhamoyee Bose' (since deceased), wife of late Krisnna Hari Bose (since deceased) under section 3 (1) of the West Bengal Land (Requisition and Acquisition)Act, 1948. In the said notice section 3 (1) of the said Act has been reproduced. All of the public purposes have been mentioned. No clause is deleted. It betrays a complete non-application of mind. The possession of the said requisitioned land was taken by the said respondents on 11th April 1975 as mentioned in the said notices and / or orders. Inspite of Various reminders the compensation for the requisition of the said plot of land was not paid nor the land was de-requisitioned. On the contrary the respondents utilised the said Land not for the purpose mentioned in the notices and/or orders of requisition but for the construction of National Highway by-pass No. 2. In the premises, Lalit Mohan Bose, since deceased, and the said chameli Ghosh and Anjali Mitra moved this Court under Article 226 of the Constitution of India on 12th March, 1981. In the said writ application the said writ petitioners asked for fixation of compensation for requisition, of the said plot of land and also for payment of damages. They also prayed for an ad-hoc payment of Rs.20,000/- as and by way of compensation for requisition of the said land. 3. In the said writ application the said writ petitioners asked for fixation of compensation for requisition, of the said plot of land and also for payment of damages. They also prayed for an ad-hoc payment of Rs.20,000/- as and by way of compensation for requisition of the said land. 3. UPON the said application rule Nisi, was issued on 12th March, 1981 by B. C. Basak, J. also directed the respondent authorities to deposit Rs.20,000/- within 2 weeks from the date of the said order with the Registrar, Appellate Side " since the said order was not carried out by the respondents, a rule of contempt -was issued on 30th April 1981 and thereafter the respondents deposited Rs.20,000/- and the petitioners, were allowed to withdraw the said sun in two equal installments after furnishing indemnity bonds. 4. THEREAFTER, the petitioners again moved another application for further payment and monoj Kumar Mukherjee, j, by his order dated 1st June, 1983 asked the Respondents, to deposit Rs.20,000/- with the" Registrar Appellate' Side and. the petitioners were allowed, to receive the same through their learned Advocate after furnishing indemnity bond. The petitioners had withdrawn the said sum of Rs.20,000/-. In other words, the petitioners had been' paid Rs.40,000/- as an by way of Interim-compensation on ad-hoc basis. On 9th February, 1984 the said La-lit Mohan Bose died leaving behind him the petitioners Nos. 1 (a) to" 1 (g) being the widow, sons and daughters as the heirs and legal representatives An application was made on 7th May, 1984 for recording the death of the said Lalit mohan Bose and substituting the names of the said petitioner Nos. 1 (a) to 1 (g)in place and stead of Lalit Mohon Bose since deceased. The said application was allowed on 11th June 1984 The consequent amendment has also been effected. 5. ON 14th June, 1984, another application has been filed by the present petitioners for payment of further sum of Rs.80,000/- inasmuch as for marriage of two of the. daughters of late Lalit Mohan Bose being the petitioner No. v. l' (c)and 1 (e), his widow, the petitioner No. 1 (a) had to incur loan against the pledge of family ornaments. ON 14th June, 1984, another application has been filed by the present petitioners for payment of further sum of Rs.80,000/- inasmuch as for marriage of two of the. daughters of late Lalit Mohan Bose being the petitioner No. v. l' (c)and 1 (e), his widow, the petitioner No. 1 (a) had to incur loan against the pledge of family ornaments. Such loan has to be repaid with interest which is accruing otherwise ornaments cannot be released Further sum is also required for the marriage of sons and daughters of petitioners No. 1 (a) and a daughter of petitioner No. 2. The said application was moved upon notice to the respondent but no one appeared. Having regard to the earlier orders passed by b. C. Basak, J and Monoj Kumar mukherjee, J, I directed on 12th June, 1934 the payment of a further sum of Rs.50,000/- on the same terms and conditions the earlier payments had been made. On 14th June, 1984, the matter was mentioned by the learned Advocate appearing for the respondents and upon hearing him I stayed the operation of my order dated 12th June, 1984. The respondents have filed an affidavit. An affidavit has also been filed long ago in the main Rule. 6. HAVING regard to the facts and circumstances of this case it was felt that the main Rule should be disposed of. There is no dispute that the possession of the land was taken on 11th April, 1975 but till now rent compensation has not been fixed in respect of the plot of land measuring about 7 big has. It is the case of the petitioners that the said land is situated in and around industrial belt. As such the rate of rent in that area would be more or less Rs.50/- to Rs.75/- per cottah per month and accordingly the petitioners are entitled to get more than Rs.2,50,000/- as arrears rent compensation and damages there for. 7. 10. THE contentions of the respondents will appear from the affidavit affirmed on 18th April, 1983 by one Bhudhar Patra. It has been stated in the said affidavit that after' taking possession of the subject land draft notice under section 4 (1a) of the said Act was sent to the government for favour of publication of the said notice in the Calcutta Gazette. THE said notice is yet to be published. It has been stated in the said affidavit that after' taking possession of the subject land draft notice under section 4 (1a) of the said Act was sent to the government for favour of publication of the said notice in the Calcutta Gazette. THE said notice is yet to be published. Necessary action for tendering of 80% on account payment was taken for publication of the said notice. THE said estimate was sent to the Government for according sanction which has not yet been received. It has been further stated that the land in question is not situated within the industrial town Salanpur. This is situated far away from salanpur village and is situated in the midst of agricultural field. THE land is required for construction of by-pass which intends to avoid congested place. THE said plot of land is classified as danga as per settlement record are being situated within the agricultural field and is far away from industrial and business complex. THE estimate for 80% on account payment has been drawn up on the basis of the sales figure so far available. A rate of Rs.3505/- per acre has been adopted taking into consideration all either aspects. THE provision for 80% on account payment pending publication of notice envisages for payment of 80% of the land value only and no other compensation. After publication fresh estimate will be prepared on the basis of sale figures available prior publication and other due compensation would be paid on the basis of the estimate at the rate of Rs.3505/- per acre. 80% of on account payment comes to Rs.3007.28/-. 8. 11. IN the affidavit filed to the application for further interim payment on 3rd July, 1984 affirmed by one Guru das majumdar, Special Land Acquisition officer, it has been admitted that till now Gazette publication has not been made. It has also been stated that the said plot of land in question is not situated Within Salanpur mouza but within the Mouza Sabanpur It is far away from the industrial town of Asansol. It has been stated that the rent of the petitioners' requisitioned land would amount to Rs.485.80/- per annum calculating at the rate of 6% on the total valuation of the land. Thus, the total rent payable to the petitioners from 1975 to 1984 amounts to Rs.4858/- for 10 years. It has been stated that the rent of the petitioners' requisitioned land would amount to Rs.485.80/- per annum calculating at the rate of 6% on the total valuation of the land. Thus, the total rent payable to the petitioners from 1975 to 1984 amounts to Rs.4858/- for 10 years. It has also been stated that the entire land is required for public interest for construction of by-pass which intends to avoid con jested place. The other statements are verbatim reproduction of the earlier affidavit. I have considered the rival submissions. Section 4 (1) of the said Act authorises the State Government to us or deal with the land which has been requisitioned for any of the purposes referred to any section 3 (1) as may appear to it to be expedient. As indicated] earlier that in the notice under section 3 (1) all the purposes referred to in the said sub-section have been mentioned. The purpose mentioned in the affidavit; is that the entire land is required for public interest for construction of bypass to avoid conjested place. Until now the said land has not been used for the; alleged purpose. Under section 4 (la) of the State Government may acquire any land requisitioned under section 3 by publishing a notice in the official gazette that such land is required for a public purpose referred to in section 3 (1). Under section 4 (2) where a notice as aforesaid is published in the official gazette, the requisitioned land shall, on and from the beginning of the day 'on which the notice is so published, vest absolutely to the State Government free from all encumbrances and the period of requisition of such land shall end. It is the admitted position that until now no notice under section 4 (la) has been published in the official gazette even after lapse of about 10 years. Accordingly the requisition of the said land is continuing. It is only after publication of the notice under section 4 (1a), notice has to be issued by the Collector as regards claims to compensation from the persons having any interest in the said land. It is only after the land is acquired under section 4, the question of payment of compensation under section 7 (1) of the said Act arises. It is only after the land is acquired under section 4, the question of payment of compensation under section 7 (1) of the said Act arises. The compensation has to be determined in accordance with the principles laid down in section 23 (1) of the Land Acquisition Act, 1984. IN this case that stage has not yet come. Under section 7 (3) of the said Act where, any land is requisitioned there shall be paid to every person interested, compensation in respect of the requisition of such land and any damage done during the period of requisition to such land. The principles to be followed in determining the compensation in the case of requisition has been enumerated in section 7 (4). If the parties do not agree as to the compensation the Collector shall have to make a reference to the principal Court of Civil Jurisdiction for determining the amount of compensation. There is a disagreement in this case. It is the case of the petitioner that in view of the location of the land per cottah rent per month would be about Rs.50/-. It is alleged that the present rent as prevalent in the area is Rs.50/- to Rs.75/- according to the situation of the lands. On the other hand, the respondents intend to fix the rent at Rs.485.80 per annum for the entire and. It is also the case of the petitioner that the entire 7 big has of land was utilised for construction of National Highway by-pass II whereas the respondents have stated that the land is required for the purpose of construction of the by-pass to avoid conjested place. If it has already been used for construction, the petition will be entitled to damage under section 7 (3. It has been also contended by the petitioner that the prevailing market rate will be nothing less than Rs.75/-per cottah. from the records produced before me it appears that the respondents proceeded to make the assessment as if the land has been acquired. The basis adopted regarding a percentage of the annual valuation as a compensation is not provided under the Act. Even then the sale price taken as the guide cannot be the correct basis of valuation. The possibility of under statement in the conveyance cannot be ruled out. The basis adopted regarding a percentage of the annual valuation as a compensation is not provided under the Act. Even then the sale price taken as the guide cannot be the correct basis of valuation. The possibility of under statement in the conveyance cannot be ruled out. The respondents have to pay the fair market rent in respect of the land in question so long it continues to be under requisition. Mr. Subhas Bhattacharyya, learned Advocate for the petitioner, has relied on a decision in the case of Province of Bengal vs. The Board of Trustees for the improvement of Calcutta reported in 50 C. W. N, page 825. IN support of his contention that when a requisition has been made by the Government the government is bound to pay in accordance with the fair rent. The Division bench of this Court in that case held thus : ". . . . . . the effect of a requisition under the Defence of India Rules is to deprive the owner of his possession. He must therefore get the value of his possession. Looking from another aspect, the requisitioning authority gets the possession from the owner and becomes, so to say, a statutory tenant. The basis of compensation must therefore be fair rent, and we hold accordingly. " 9. IT has also been laid down in that decision that true test for determining the market value to be awarded to the owner as compensation is not what the owner was doing with the land at the time but what he could have done. 10. NO instance of letting of similar land in the area requisitioned is found in. the record. Even assuming per cottah rent is Rs.10/- and not Rs.50/- or more as claimed by the petitioner oven then monthly rent of per cotta land would come to Rs.10/- x 140 cottahs that is to say Rs.1,400/- and the annual rent will be paid Rs.16,800/- and for the last 9 years the total rent payable would be Rs.1,51,200/-. In that view of the matter a further sum shall be paid to the petitioner before final determination of compensation is made by the appropriate court. In that view of the matter a further sum shall be paid to the petitioner before final determination of compensation is made by the appropriate court. Having regard to the facts and circumstances of this case, I am of the view that unless compensation is determined under section 7 (4) of the said Act the petitioner shall be paid a further sum of Rs.50,000/- as directed by the order dated 12th June, 1984. The Collector shall refer the matter under section 8 (1) (be) of the said Act for decision of the court regarding the determination of the compensation having regard to the prevalent market rate. Such reference shall be made within three weeks from date of communication of this order. The respondents are also directed to consider whether they still require the entire land and is not they shall release the land or part of it from requisition in terms of section 6 (1) of the said Act. The respondents are directed to pay the said sum of Rs.50,000/- upon the petitioner, furnishing the Indemnity bond in favour of the Land Acquisition Collector Burdwan. Such payment shall be side within a fortnight from date of communication of this order in the name of the petitioner No. 1. All payments made to the petitioner in terms of the orders of this Court will be adjusted against the compensation payable to the petitioners under section 7 (3). 11. THIS order virtually disposes of the writ application. The Rule is disposed of accordingly. There will be no order as to costs. 12. LET a plain copy of this order counter, signed by the Assistant Registrar (Court) be handed over to the learned counsels for the petitioner. Rule disposed of.