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2006 DIGILAW 565 (CAL)

GANESH KANJI v. STATE OF WEST BENGAL

2006-09-04

PRABIR KUMAR SAMANTA, PRASENJIT MANDAL

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Before Mr. Justice Prabir Kumar Samanta And Mr. Justice Prasenjit Mandal ( 1 ) THIS is an application for review of the order dated 3rd July, 2006 passed by this Court in disposing of the appeal preferred by the appellant. ( 2 ) THE appellant is the recorded bargadar in respect of the lands in question which were acquired under the provisions of the West Bengal industrial Infrastructural Development Act, 1974. The concerned Collector while awarding compensation for acquisition of the same did not award any compensation whatsoever to the writ petitioner. Accordingly, the writ petitioner moved a writ petition in this Court for a writ in the nature of mandamus commanding the respondent authority to pass an award of compensation in favour of the petitioner for the acquisition of the lands in question under the provisions of the aforesaid Act. For the purpose of determination of compensation for acquisition of the land under the provisions of the aforesaid act, the provisions of the Land Acquisition Act, 1894 are applicable. Section 23 in its application to the State of West Bengal provides that the Court shall take into consideration that the loss of earning, if any, caused to the person interested, in consequence of the acquisition of the land where earning was derived directly from such land. Sub-section 4 of Section 23 provides: - " (4) Compensation payable to a bargadar for loss of earning under clause seventhly of sub-section (1) shall not exceed six times the net average annual income which the bargadar derived or might have derived from the land during three years immediately proceeding the date of acquisition. " ( 3 ) UPON reading of the aforesaid provision of Section 23 of the Land acquisition Act, 1894, it is clear that this Court while disposing of the appeal by the order dated 3rd July, 2006 made an error apparent on the record by observing that the Land Acquisition Act, 1894 did not specifically provide for giving compensation of the bargadars of the lands in addition to the owner of the same. We, therefore, set aside the order under review and the application for review is, thus, allowed. We, therefore, set aside the order under review and the application for review is, thus, allowed. ( 4 ) UPON setting aside the order under review, we take up this application for hearing, as we have the determination to take up the same, in presence of the learned Advocate for the parties because upon setting aside the order under review the appeal survives and needs to be disposed of in accordance with law. ( 5 ) THE facts as stated hereinbefore are that the writ petitioner is the recorded bargadar in respect of the land in question which were acquired as above. The finally published record of rights as well as the barga certificate issued in favour of the writ petitioner by the Government of West Bengal have been annexed to the writ petition. It is evident that the writ petitioner/appellant is a bargadar in respect of the land in question which were acquired as above. Further his status as bargadar in respect thereof has also been recorded as such in the finally published record of rights. ( 6 ) IN view of the provisions of Section 23 of the Land Acquisition Act, 1894 vis-a-vis the status of the petitioner which has been recognised by the state Government by recording the name of the writ petitioner as such in the finally published record of rights, we are of the opinion that the Land Acquisition collector was under legal obligation to pass award of compensation in favour of the writ petitioner as being the bargadar in the land in question in terms of clause 7 sub-section 1 of Section 23 read with sub-section 4 of Section 23 of the Land Acquisition Act, 1894. ( 7 ) THE writ Court accordingly acted illegally by dismissing the writ petition which order cannot be sustained in law on the reasons as above. The judgment and order dated 24th March, 2003 passed in the writ petition being W. P. No. 2242 (W) of 2003 is, therefore, set aside. ( 8 ) THE writ petition is accordingly allowed by directing the concerned land Acquisition Collector to draw up appropriate proceeding for determination of compensation payable to the writ petitioner as being the bargadar of the lands in question acquired under the aforesaid Act immediately. ( 8 ) THE writ petition is accordingly allowed by directing the concerned land Acquisition Collector to draw up appropriate proceeding for determination of compensation payable to the writ petitioner as being the bargadar of the lands in question acquired under the aforesaid Act immediately. It is made clear that the said Land Acquisition Collector upon drawing up of such proceeding will issue notice to the writ petitioner and will determine the compensation payable of him in accordance with the provisions of law by giving an opportunity of hearing to the writ petitioner peremptorily within period of four months from the date of communication of this order. The appeal is, thus, allowed.