Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 361 (CAL)

SUNIL DEY v. AJOY NANDI MAJUMDAR

2006-06-20

ANIRUDDHA BOSE, V.S.SIRPURKAR

body2006
VIKAS SHRIDHAR SIRPURKAR, CJ. ( 1 ) PRESENT is an appeal filed by one Sunil Dey and Sukumar dey against the judgment delivered by the learned Single Judge of this Court. These two appellants were not parties to the writ petition which was allowed by the learned Single Judge. They, therefore, sought the leave of this Court for filing the appeal and on such leave being granted to them they have preferred the appeal and challenged the judgment. ( 2 ) THAT writ petition was filed by one Ajoy Nandi Majumdar wherein he had challenged the land acquisition proceeding started under Sections 4 and 6 of the West Bengal Land (Development and Planning) Act, 1948 (hereinafter referred to as 1948 Act) in particular he challenged the notification dated 24th february, 1982 and the notification under Section 6 of the 1948 Act dated 31st december, 1991. The claim made before the Court was that the petitioner was an 'interested person' in respect of Plot No. 223 of C. S. Dag No, 183 having total area of 1. 067 acres as he had purchased a portion of land from this plot. The petitioner pointed out that the land was purchased by him from one Amiya kumar Dey way back in the year 1977 by a sale deed and that his name was mutated in the records of Kolkata Municipal Corporation (KMC ). It was pointed out by the writ petitioner that the land purchased was 3 cottah, 8 chittacks and 15 sft. We find from the writ petition that the deed of sale is studiously not mentioned in the writ petition, all that is mentioned is that by letter no. 7-7-D/937/77-78 dated 21st March, 1978 the aforementioned plot was mutated in the name of the petitioner. We do not see any copy of the sale deed having been filed by the petitioner along with the writ petition, not do we find any mutation made in his favour in the Land Revenue Department. Be that as it may, the writ petitioner further claimed that he was a refugee from East Bengal belonging to sylhet District and after purchasing the land in 1977 he could not arrange sufficient fund for the construction of the building and therefore he applied for the sanction to construct a building on the aforementioned plot which sanction was granted by the KMC by letter dated 12th April, 1989. It is then further claimed that when the petitioner started cleaning the vacant plot of land in order to construct the building, the local colony committee suddenly obstructed the work saying that the said plot was under the acquisition proceeding by the State of west Bengal. Thereafter, the writ petitioner knocked at the doors of various departments of the State of West Bengal including Kolkata Metropolitan development Authority (KMDA) and Kolkata Improvement Trust (KIT) and caused searches to be made in the records of these departments and was informed that there was no such purported acquisition proceeding in respect of the said land. He, therefore, prayed a necessary clearance from KMDA and KIT for which he made necessary applications on 19th June, 1989. It is then claimed that the petitioner further caused necessary searches in the offices of respondent nos. 2 and 3, i. e. , 1st Land Acquisition Collector at 5, Bankshall Road, Calcutta and Land Acquisition Collector at New Secretariat Building at 1, K. S. Roy Road, calcutta as to whether any such land acquisition proceedings were in fact held, but in spite of his best efforts and in spite of his approach to the respondent nos. 2 and 3, he was kept in complete dark about the proceeding. Ultimately, he claims in Paragraph-11 of the writ petition that the respondent No. 2 by his letter dated 14th March. 1990 informed the writ petitioner that the C. S. Plot No. 183 of Mouza-Arkapur was notified for acquisition in LDP Case No. 1/74 under the 1948 Act. He was further informed that Plot No. 223 appertaining to C. S. Dag no. 183 is included in the acquisition proceeding. However, the respondent no. 2 did not specify whether such plot of land belonging to the writ petitioner was actually notified for acquisition. The writ petitioner then claimed that after coming to know about the land acquisition proceeding he realised that no notice for the acquisition was served upon him and. therefore, he made various representations in July 1990, February, 1991 and July 1992 and pointed out various illegalities in the matter of acquisition. The writ petitioner then claimed that after coming to know about the land acquisition proceeding he realised that no notice for the acquisition was served upon him and. therefore, he made various representations in July 1990, February, 1991 and July 1992 and pointed out various illegalities in the matter of acquisition. He then says in his writ petition that respondent No. 5, Refugee Rehabilitation Department deliberately sat tight over the whole issue and after great difficulty the petitioner obtained the copies of the notifications under Sections 4 and 6 of the 1948 Act, whereunder his plot in C. S. Plot No. 183 having an area of 1. 067 acres were covered. He, therefore, says that all these notifications are illegal as he was never noticed before issuing such acquisition notices and had lost the opportunity. He further says that the writ petitioner himself being a refugee his land could not have been taken for the rehabilitation of the refugees meaning thereby he could not have been deprived of his land which he had purchased for a valuable consideration. There are various other objections raised to the proceeding and ultimately the petitioner filed a writ petition being C. O. No. 16870 (W) of 1992, inter alia, claiming quashing of the notifications under Sections 4 and 6 of the 1948 Act (being annexure - 'g' and 'h' to the writ petition ). ( 3 ) THE learned Single Judge has allowed this writ petition. However, it is apparent that the learned Single Judge did not have the advantage of being assisted by the State Government Counsel. The learned Single Judge came to the conclusion that since the land was mutated in the name of the petitioner in the records of KMC and since the land was a part of the Corporation area the state Government could not have acquired the land under the provisions of the land Acquisition Act, 1894. He has made the same comment regarding the 1948 Act also. He has also recorded a finding that the release of this land by the kit was informed for the purpose of its applicability and once the KIT was informed that the land was not under the scheme of alignment of the Trust, it could not be said that the land was under the control of the Land Acquisition collector. He has also recorded a finding that the release of this land by the kit was informed for the purpose of its applicability and once the KIT was informed that the land was not under the scheme of alignment of the Trust, it could not be said that the land was under the control of the Land Acquisition collector. The learned Single Judge also recorded a finding that since the petitioner himself was an immigrant there was no question of their being any public purpose and he could not have been deprived of the land and there would be no applicability of the notification to the case since the writ petitioner was himself a refugee. The learned Single Judge ultimately held: -"as a result whereof, I hold that the requisition or acquisition whichever applicable under the notification is no longer existable so far as this plot of land is concerned. Therefore, in other words, the land is free from acquisition. As a result whereof the petitioner will be entitled for making an appropriate construction on the basis of the making an appropriate construction on the basis of the sanctioned plan earlier or by way of any notification, if necessary," ( 4 ) THE learned Single Judge not only quashed the acquisition proceeding but also proceeded to hold that he was entitled to make construction. ( 5 ) SINCE the appellant now was a 'person interested' in the land which status he claimed on account of the allotment of a portion of land out of C. S. Plot No. 183 for which he has also filed a document on record. The appellants came before us stating that they would be directly affected by the judgment of the learned Single Judge as it was their land in respect of which the writ petitioner was claiming the title as well as possession. The appellants before us point out systematically that the C. S. Plot No. 183 was a portion of a large men comprising of about 10 acres of land approximately for which the land acquisition proceeding were started way back in the year 1957. It is pointed out that the possession of 3. 85 acres of land was taken in 1957 itself and therefore the first land acquisition proceedings were challenged by the original owner of the land, Smt. Kamala bala Sen, who consistently filed writ petitions challenging the acquisition proceedings. It is pointed out that the possession of 3. 85 acres of land was taken in 1957 itself and therefore the first land acquisition proceedings were challenged by the original owner of the land, Smt. Kamala bala Sen, who consistently filed writ petitions challenging the acquisition proceedings. The first writ petition being C. R. No. 1768 (W) of 1970 was allowed on 23rd March, 1973 where the acquisition proceeding were quashed. Again a notification was issued on 25th September, 1974 which notification was also challenged by way of a writ petition being C. O. No. 6843 (W) of 1974, wherein an interim order was passed and on 19th December, 1975 the Court discharged the rule issued earlier. It is then pointed out that Kamala Sen filed an appeal against the judgment dated 19th December, 1975. wherein the Division Bench directed the drawing up the declaration under West Bengal Land (Development and Planning) Act, 1948 and to send the draft declaration to the appropriate department. It is pointed out that during pendency of these proceedings the writ petitioner claims to have purchased the land in the year 1977 from one Amiya kumar De, whose name was never to be found anywhere in any records. It is then pointed out that the said notification dated 25th September, 1974 also came to be quashed. It is then pointed out that on 24th February, 1982 fresh notification was issued for acquisition of 8. 35 acres of land under the 1948 Act. Therefore, the second round of litigation was started by Smt. Kamala Bala Sen by filing C. O. No. 13775 (W) of 1982 challenging the acquisition. This writ petition was disposed of on 13th December, 1991 wherein a direction was given by the Court to complete the acquisition proceeding and make payment of the compensation. It is then pointed out that ultimately on 30th December, 1991 government of West Bengal, Land and Land Reforms Department made a declaration under Section 6 of the 1948 Act. On 16th November, 1992 the award was published and the compensation was paid to Smt. Kamala Bala Sen for the whole land comprised in C. S. Plot No. 183. ( 6 ) ON this basis it is pointed out that the writ petitioner was not and could never have been in possession of the land. On 16th November, 1992 the award was published and the compensation was paid to Smt. Kamala Bala Sen for the whole land comprised in C. S. Plot No. 183. ( 6 ) ON this basis it is pointed out that the writ petitioner was not and could never have been in possession of the land. Secondly, the claim of the writ petitioner that his name was recorded in the land records is a myth. Thirdly, the writ petitioner was a complete outsider as the name of his predecessor-in-title amiya Kumar De, from whom he claims to have purchased the land, also never existed in the records of the Land Reforms department and in fact the land was all through under the land acquisition proceeding and the whole land belonged to Smt. Kamala Bala Sen, who had received the whole compensation in respect of the acquired land. It is then pointed out by the appellant that for these reasons, it is obvious that the writ petitioner had no title or no nexus with the land. Learned counsel Mr. Chatterjee also very painstakingly points out that the petitioner in his writ petition has very studiously suppressed all these facts in respect of the land acquisition proceeding. ( 7 ) ON the notices having been sent to the writ petitioner, the respondent herein, the writ petitioner has not chosen to appear though he has chosen to file an affidavit-in-opposition. ( 8 ) ONE more affidavit came to be filed on behalf of the State Government where the claims made by the appellants have been completely supported. This affidavit is filed by one Sunil Kumar Bose, Deputy Director (Regularisation), refugee Relief and Rehabilitation Directorate, Govt. of West Bengal wherein in clearest possible terms, the concerned officer deposed to the fact of land acquisition proceeding right from 1957. The further assertion on the part of the officer is that the original owner of the land has been paid the compensation in terms of the Section 6 notification published on 31st December, 1991 and that this particular land was always the part of the acquisition proceeding all through right from the 1st day of the notification. It is specifically contended and asserted in this affidavit that the claim of the writ petitioner regarding purchase of Plot no. It is specifically contended and asserted in this affidavit that the claim of the writ petitioner regarding purchase of Plot no. 223 corresponding to C. S. Plot No. 183 in Mouza-Arakpur, J. L. No. 39 from one Amiya Kumar De in 1977 is not tenable as the lands of the said Plot No. 183 included in J. L. No. 39 had been under the process of acquisition without any break or interruption in the process the said land was ultimately acquired on 31st December, 1991. ( 9 ) THIS affidavit has not been countered by the respondent/writ petitioner who has chosen not to remain present before us in spite of notice. If it is a clear factual position that the land was covered under the land acquisition proceeding, we are afraid that the order of the learned Judge cannot be sustained. The learned Single Judge has written a strange finding that the land acquisition proceedings were not applicable in the case of the writ petitioner. This finding on the part of the learned Single Judge cannot be sustained in view of the fact that the land was always under the land acquisition proceeding and there were proper notices issued to the concerned person. There is also no dispute that the petitioner has not in any manner disclosed the existence of these proceedings in his writ petition. Therefore, in our opinion, the learned Single Judge was not right in altogether ignoring the factual position of the pending land acquisition proceeding and the factum of land acquisition, which acquisition proceeding also included C. S. Plot No. 183. ( 10 ) THE learned Single Judge has gone wrong in granting relief beyond the scope of the writ petition because the learned Single Judge could not have issued a 'go ahead' order to the petitioner in respect of his construction. The learned Single Judge should have realised that the Corporation was not even made a party to the writ petition by the writ petitioner. We are, therefore, not in a position to sustain the judgment of the learned Single Judge and we are of the clear opinion that the learned Single Judge was in error in allowing the writ petition. The judgment is liable to be set aside and is ordered to be set aside and the writ petition is directed to be dismissed. With these observations we allow the appeal.