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2006 DIGILAW 533 (CAL)

BISWANATH ROY v. STATE OF WEST BENGAL

2006-08-23

DEBASISH KAR GUPTA

body2006
( 1 ) IN all these writ applications filed under Article 226 of the Constitution of india, the legality of the actions on the part of the respondents in treating the petitioners unequally with another similarly circumstanced person in the matter of following different modes of calculation for payment of damage compensations for the lands belonging to them are under challenge. ( 2 ) THE petitioners in all these writ applications are the owners of plots of land lying and situated in different mouzas of the same areas in the District of Hooghly. Notices were sewed upon all of them in the months of January 1973, by the Land Acquisition Collector-cum-District Magistrate, Hooghly in exercise of powers conferred by sub-section (1a) of Section 3 of the West bengal Land (Requisition and Acquisition) Act, 1948 initiating requisition cases in respect of the plots of land belonging the petitioners for construction of mundeswari Left Embankment 13 miles. Possessions in respect of all the plots of land were taken by the respondents in the months of January and February, 1973. Subsequently notices were issued either on predecessors of the petitioners or on the petitioners for payment of 80 per cent of compensation in respect of aforesaid plots of land. But nothing was paid to them. ( 3 ) IN the year 2001 some of the petitioners filed applications under article 226 of the Constitution of India praying for direction upon the respondents for payment of compensation to them. Thereafter, the respondents took decision with regard to the aforesaid plots of land belonging to petitioners and informed all of them in or about April, 2. 002 as per communications of the Land Acquisition collector, Hooghly that the respondents decided to release those plots of lands to the petitioners treating the date of release as on March 31,1997. Since the respondents were in possession of the aforesaid plots of land for a long period without paying any money to them, some of the petitioners filed writ applications for payment of adequate damage compensation to them. Ultimately, damage compensations were paid to all petitioners. ( 4 ) THE grievance of the petitioners in all the writ applications is that one Asgar Ali, since deceased, who was similarly circumstanced with them in respect of the plot of land belonging to him, got damage compensation from the respondents at a higher rate without any cogent reason. Ultimately, damage compensations were paid to all petitioners. ( 4 ) THE grievance of the petitioners in all the writ applications is that one Asgar Ali, since deceased, who was similarly circumstanced with them in respect of the plot of land belonging to him, got damage compensation from the respondents at a higher rate without any cogent reason. ( 5 ) MR. Amal Baran Chatterjee, Learned Advocate, appearing on behalf of the petitioners in all this writ applications, submits that the respondents followed different methods for calculation of damage compensation in cases of different similarly circumstanced land owners. These discretionary treatments are not sustainable in law. Accordingly, Mr. Chatterjee prays for a direction upon the respondents for calculating the damage compensations in respect of plots of land belonging the petitioners at a rate in which such compensation was calculated in case of the land belonging the aforesaid Late Asgar Ali and to pay the difference money to the petitioners. ( 6 ) IT appears from the statements made in the affidavit in opposition filed on behalf of the respondent Nos. 2 and 3 in W. P. No, 10482 (W) of 2003 that the Deputy Secretary to the Government of West Bengal, Land and Land reports Department, Land Acquisition Branch as per departmental communication issued under Memo No. 10485 (90)-LA (II) 3m-48/96 dated november 27, 1997 prescribed the mode of dealing with the land acquisition cases pending under the West Bengal (Requisition and Acquisition) Act, 1948 beyond the date of March 31, 1997. Provisions of Clauses (3) and (4) of the guideline enclosed to the above communication are quoted below: "what should be the modality of dropping the cases where requisition was made but land is no longer required for the purpose, since there is no de-requisition provisions in the Amendment Act. EXPLANATION : In case of L. A. Cases where possession of land followed by requisition under Section 3 (1) of the L. A. Act II of 1948 was taken but not finally used and also no longer required by the Requiring Authority, the subject land stands de-requisitioned on 31. 3. 1997 since the W. B. Land (Reqn. and Acqn.) Act of 1948 expired on 3. 3. 1997. 3. 1997 since the W. B. Land (Reqn. and Acqn.) Act of 1948 expired on 3. 3. 1997. The Collector will have to formally restore back the possession of 1he subject land to its ex-owner by serving de-requisition Order (Form No. 5 of the L. A. Act II of 1948) as on 31. 3. 1997. What should be the compensation amount for the requisition period when such lands are restored back. EXPLANATION : Since the date of such restoration is given effect to on 31. 3. 1997, the rate of such requisition compensation would be @ 6% per annum on the market value of land as prevailing on 31. 3. 1997. The period for such compensation should be computed from the date of taking over possession of land under section 3 (1) of the W. B. L. A. Act, 1948 to the date of restoration. " ( 7 ) THE land belonging to one Asgar Ali, since deceased, was released by an order dated June 11, 2001 and the damage compensation of the land belonging to him was determined on the basis the above guideline on July 23, 2001. A notice dated April 21, 2001 was issued calling upon him to collect the damage compensation. But due to death of the above Asgar Ali, the damage compensation was paid to his successor pursuant to an order passed in W. P. No. 12888 (W) of 2002. ( 8 ) IT has further been disclosed in the aforesaid affidavit in opposition that the guideline dated November 27,1997 was superseded by a subsequent departmental communication issued by the Joint Secretary to the Government of West Bengal, Land Reforms Department, Land Acquisition (II) Branch, under memo No. 1573-LA (ll)/3m-43/2000 (pt. ll) dated June 4, 2002. Provisions of clauses 3 and 4 of that guideline are quoted below: - "question: 3) What would be the modalities of dropping the cases where possession of lands were taken under section 3 (1) of L. A. Act II of 1948 but land is no longer required for the purpose. Explanation : When the requisitioned land is no longer required by the requiring authority, the subject land should be restored to the owner. The Collector in such cases, will have to send the proposal of the Requiring Body in this regard to this Department for final decision in the matter. Explanation : When the requisitioned land is no longer required by the requiring authority, the subject land should be restored to the owner. The Collector in such cases, will have to send the proposal of the Requiring Body in this regard to this Department for final decision in the matter. Question: 4) What should be the compensation amount for the requisition period when such requisitioned land is restored in favour of its ex-owners (s ). Explanation : In such cases, ex-owners (s) of the land will be entitled to get compemsation for the period commencing from the date of possession of land under section 3 (1) of L. A. Act II of 1948 to the date of restoration of such land @ 12% per annum on the market value of land prevailing on the date of such possession under the said Act. " ( 9 ) THE plots of land belonging to all the petitioners were released in the year 2002. Since the earlier guideline dated November 27,1997 had been superseded by the later guideline dated June 4,2002, the provisions of the later guideline were followed in determining the damage compensation for the lands belonging to the petitioners. ( 10 ) MS. Manjuri Gupta, appearing on behalf of the respondents in W. P. No. 10482 (W) of 2003, submits that different modes were prescribed in the aforesaid two guidelines. So the provisions of the guideline in force were followed in determining the damage compensation for the lands belonging to the petitioners. According to Ms. Gupta, if the petitioners are aggrieved by the method followed by the respondents, they have the right to refer the matter before the appropriate forum under the provisions of Section 18 of the Land acquisition Act, 1894. Ms. Gupta further submits that since the petitioners already accepted the damage compensation, they are not entitled to raise further claim. ( 11 ) MR. Subrata Banerjee appearing on behalf of the respondents in w. P. No. 10275 (W) of 2003 adopted the submissions made by Ms. Gupta as aforesaid. ( 12 ) MR. Pulak Ranjan Mondal appearing on behalf of the respondents in w. P. No. 10585 (W) of 2003 submits that the provisions of Section 7 of the west Bengal (Land Requisition and Acquisition) Act, 1948 are applicable in calculating the damage compensation. Mr. Gupta as aforesaid. ( 12 ) MR. Pulak Ranjan Mondal appearing on behalf of the respondents in w. P. No. 10585 (W) of 2003 submits that the provisions of Section 7 of the west Bengal (Land Requisition and Acquisition) Act, 1948 are applicable in calculating the damage compensation. Mr. Mondal further submits that it appears from the order dated september 20,2003 passed by the Cdllector, Hooghly that the petitioners agreed to accept the damage compensation as determined by the Collector. However, if any petitioner is aggrieved by the method followed by the Collector, Hooghly, it was open for him to proceed in accordance with the provisions of Section 8 of the West Bengal (Requisition and Acquisition) Act, 1948. ( 13 ) HAVING heard the Learned Counsels appearing for the parties and after considering the materials on record, I find that for the purpose of calculation of the damage compensation in respect of the lands belonging to all the petitioners, the administrative decision as communicated under the departmental communication dated June 4, 2002 were followed. It is an admitted fact that in case of the plot of land belonging to one asgar Ali, since deceased, the damage compensation for the land belonging to him was determined on the basis of the administrative decision as communicated under the departmental communication dated November 27, 1997. It is also admitted position that the notices under sub-section (1a) of Section 3 of the West Bengal Land (Requisition and acquisition) Act, 1948 were issued in respect of lands; belonging all the petitioners and to one Asgar Ali, since deceased, for the self-same purpose of construction of mundeswari Left Embankment 13 miles. And the possessions in respect of those plots of lands were taken by the respondents in the months of January and February, 1973. It also an admitted position the lands were released in all those cases treating the date of release as con March 31,1997. So I have no hesitation to hold that all the petitioners of the above writ applications are similarly circumstanced with one Asgar Ali, since deceased, who received the damage compensation in respect of the land in terms of the guideline dated31. 3. 97. So I have no hesitation to hold that all the petitioners of the above writ applications are similarly circumstanced with one Asgar Ali, since deceased, who received the damage compensation in respect of the land in terms of the guideline dated31. 3. 97. I find no material on record to see as to why the plots of land belonging to the petitioners were not released in the year 2001 and why the damage compensations thereto were not calculated in the year 2001 on the basis of the guideline dated November 27,1997. But I find that two different methods were followed in the matter of determining the damage compensation relying upon two different administrative guidelines as communicated by the departmental communications dated November 27, 1997 and June 4, 2002 respectively. Consequent thereupon the petitioners were affected adversely in the matter of getting damage compensation without any cogent reason for such administrative decisions. In my view the equals were treated unequally on the basis of administrative decisions of the respondents. ( 14 ) THE actions on the part of the respondent authorities which are under challenge are so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision. ( 15 ) IT is now well-settled that judicial review of the decision making process of such administrative decisions are permissible under Article 226 of the Constitution of India. In the case of State of U. P. v. Dharmander Prasad singh reported in AIR 1989 SC 999 (at page 1010), the Hon'ble Supreme Court observed: - ". . . . . . . . . . . . . . . When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. . . . . . . . . . . . . . . . . . . . " ( 16 ) WITH regard to the submissions made by Ms. . . . . . . . . . . . . . . . . . . . " ( 16 ) WITH regard to the submissions made by Ms. Manjuri Gupta that in the event any petitioner is aggrieved by the administrative decision of the respondents it is open to him to take recourse to Section 18 of the Land acquisition Act, 1894,1 do not find any substance in it. In my view, the above provision has no manner of application in this case. Regarding rights of the petitioners to file writ application after receiving damage compensation, it is not the case of the respondents that at the time of receiving the damage compensation it was known to the petitioners that they were treated unequally with one similarly circumstanced land owner namely late Asgar Ali. ( 17 ) REGARDING the submissions made by Mr. Pulak Ranjan Mondal that provisions of Sections 7 and 8 of the West Bengal (Requisition and Acquisition)Act, 1948, are applicable in this case, I find that the respondents did not determine the damage compensations in these cases under those provisions. Further the above provisions come into operation for payment of compensation after acquisition of a land under Section 4 of the above Act. But in this case only order of requisition under Section 3 (1a) of the above Act was passed. With regard to the petitioners' right to challenge the arbitrary actions on the part of the respondents after receiving the damage compensation, I have already held in favour of the petitioners, I, therefore, find no substance in the submissions made by Mr. Mondal. ( 18 ) ON the basis of above discussion, all the writ applications are allowed. The respondent authority is directed to calculate the damage compensation in respect of the plots of land belonging to all the petitioners following the same method on the basis of which the damage compensation in case of aforesaid late Asgar All's plot of land was determined. The respondent authority is further directed to pay the damage compensation to the petitioner on the basis of the above calculation after deducting the money already paid to the petitioners if any, within a period of 3 (three) months. ( 19 ) ALL the writ applications are thus disposed of. ( 20 ) THERE will be, however, no order as to costs.