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2007 DIGILAW 44 (CAL)

RANJIT KUMAR DAS v. THE STATE OF WEST BENGAL

2007-01-31

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

body2007
BHASKAR BHATTACHARYA, ACJ, J. ( 1 ) ALL the aforesaid three matters were heard analogously as facts involved herein are to some extent similar. We, however, propose to dispose of all these three matters by giving separate judgments one after the other. W. P. L. R. T. No. 221 of 2006 arup Kumar Jana and Ors. Versus the State of West Bengal and Ors. ( 2 ) THIS writ-application is at the instance of an applicant before the west Bengal Land Reform and Tenancy Tribunal and is directed against order dated February 6, 2006 passed by the said Tribunal thereby rejecting an application filed by the writ-petitioner being O. A No. 272 of 2006 wherein the writ-petitioner prayed for relief under Sections 4 (A), 4 (B) and 4 (C) of the West bengal Land Reforms Act, 1955. ( 3 ) THE case made out by the writ-petitioners in this application under article 226/227 of the Constitution of India may be summed of thus : a) The writ-petitioners are the owners in respect of the lands described in this application. In the year 1967-68, land acquisition cases were initiated and some of the lands belonging to the writ-petitioners acquired but such acquisition was not in conformity with law. The acquiring authority did not follow the guidelines and conditions which were require'd to be followed in acquiring the land in accordance with the Land Acquisition Act. The writ-petitioners are still in possession of their acquired land. b) A negligible amount was paid to the predecessor-in-interest of the writ-petitioners towards compensation against the purported acquisition. In the past, another writ-application was filed being c. O. No. 2039 (W) of 1981 before this Court and ultimately this court by an order dated March 23, 1981 disposed of such writ-application by setting aside the award passed in the land acquisition proceeding and directing the concerned authority to pass fresh award. c) Three writ-applications are still pending wherein prayers have been made for return of the land, passing of fresh award and solatium, and direction for alternative accommodation and employment to each member of the family. d) Recently men and agents of the respondents had been deployed to fill up the land including the portents of the writ-petitioner. c) Three writ-applications are still pending wherein prayers have been made for return of the land, passing of fresh award and solatium, and direction for alternative accommodation and employment to each member of the family. d) Recently men and agents of the respondents had been deployed to fill up the land including the portents of the writ-petitioner. The petitioners had lodged several complaints before the Police authority praying for stalking those illegal activities and for preventing those persons from converting the nature and character of the land but such illegal activities are going on infringing the right of the petitioner. e) The petitioners are rayat of the lands which would appear from the document issued by the concerned authority. In view of such illegal activities of the respondents, the writ-petitioners moved the West bengal Land Reforms and Tenancy Tribunal thereby giving rise to file O. A. No. 272 of 2006 but the Tribunal by the order impugned herein had rejected such application. Hence, the present writ-application. ( 4 ) THIS writ-application is contested by not only the State of West bengal but also the Haldia Development Authority (respondent No. 14) and the case made out by the said respondent No. 14 may be summarised thus : a) A considerable area of land in the Mouza Hatiberia under the Police station Haldia was acquired in the year 1968 for the purpose of requirement of the Haldia Dock Complex. The said proceeding for acquisition was initiated by the Government or the State of West bengal under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the Act ). Pursuant to such proceedings land of the writ- petitioners and/or their predecessors were acquired after complying with the requirement of the Act and compensation were also paid. b) A large number of persons were dissatisfied with the amount of compensation awarded and preferred a writ-application being C. O. No. 2029 (W) of 1981 and the learned Single Judge of this Court disposed of the said writ-application by directing the Special Land acquisition Collector, Midnapore to take into consideration the provisions contained in Section 23 (2) of the Act as it was prior to its amendment and to modify the erred in the light of the provisions contained in the said Section. In other words, this Court directed the said respondent to Avadh solatium at the rate of 15 per cent of the market value of the land as determined by him in the said awards. c) Pursuant to such direction given by this Court, fresh compensation was assessed after giving due notices and the fresh award was passed and the compensation amount was also duly paid to all the petitioners and other persons whose lands were acquired. It, however, appears that in the said acquisition proceedings in large amount of land in excess of the actual requirement were acquired for Haldia Dock Complex. d) The Calcutta Port Trust, Haldia Dock Complex relinquished 301. 1225 acres of land and returned the aforesaid quantum of land in favour of the Government of West Bengal. After such relinquishment, the Government of West Bengal decided to give 201. 1225 acres of land to the Haldia Development Authority and it further hundred acres of land to the Haldia Municipality for public interest. e) In accordance with the aforesaid decision of the Government of west Bengal, both the Haldia Development Authority and the concerned Municipality got possession of the aforesaid 300. 1225 acres of land on payment of an appropriate amount received by the Government of West Bengal. f) Both the Haldia Development Authority and the Haldia Municipality are using those excess lands for public purpose. Therefore, having regard to the provisions contained in Section 16 of the Act, the right title and interest of the writ-petitioners strewed vested in favour of the Government absolutely and free from all encumbrances. As the petitioners have already received compensation pursuant to the modified award, the right of the writ-petitioners in the acquired land is no more subsisting and thus, the writ-petitioners cannot maintain the present writ-application they having no subsisting interest therein. ( 5 ) AFTER hearing Mr. Sanyal, the learned Advocate appearing on behalf of the petitioner and Mr. Mukherjee, appearing on behalf of the respondent No. 14 and after going to the aforesaid materials we find that there is no dispute that the lands in question were acquired in the year 1968 by taking help of the Act. ( 5 ) AFTER hearing Mr. Sanyal, the learned Advocate appearing on behalf of the petitioner and Mr. Mukherjee, appearing on behalf of the respondent No. 14 and after going to the aforesaid materials we find that there is no dispute that the lands in question were acquired in the year 1968 by taking help of the Act. It further appears from record that the writ-petitioners and others challenged the award by filing a writ-application and was successful only to this extent that the government was directed to pay solatium in accordance with the provision contained in Section 23 (2) of the Act. This Court in the writ-application did not declare that the acquisition was invalid. After payment of compensation in terms of the order passed by this Court, the writ-petitioners cannot have any right, title or interest over the acquired land. Even though the excess lands were acquired and the Calcutta Port Trust Authority relinquished the excess land, those were subsequently given to the Haldia Development Authority and the haldia Municipality. It is now settled law that even if excess land is acquired than the required one, the owner of the land has no right to get back such excess land after the passing of the award. It appears that the excess lands have been given to the respondent No. 14 and the Haldia Municipality for the purpose of using those lands for public purpose. ( 6 ) MR. Sanyal, the learned Advocate appearing on behalf of the petitioner, in this connection placed strong reliance upon the decision of the supreme Court in the case of Balwant Naryan Bhagdev. M. D. Bhagwat and Ors. reported in (1976)1 SCC 700 and contended that in this case title of the petitioners in the property had not extinguished as actual physical possession of the property in question was not taken. ( 7 ) AFTER going to the said decision we find that in the said case it was held by two of the Hon'ble three Judges constituting the Bench that when the government proceeds to take possession of the land acquired by it under the land Acquisition Act, 1894, it must take actual possession of the land, since all interest in the land are sought to be acquired by it. There can be no question of taking symbolical possession, the Apex Court continued, in the sense understood by the judicial decisions under the Code of Civil Procedure nor would the possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken, the supreme Court proceeded, would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of and there can be no hard-and-fast rule layjng down what act would be sufficient to constitute taking of possession of land. According to the Supreme Court, since the land in that case was lying fallow and there was no crop on it at the material time, "the act of Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession". It further appears from paragraph 28 of the said judgment that the appellant in that case was not present when the Tehsildar took possession but the Supreme Court specifically mentioned that the presence of the owner of the property was not necessary for taking lawful possession of the same. The Supreme Court further held that it was not strictly necessary as a matter of legal requirement that a notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it might be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it. In the case before us, the fact that possession has been taken has not been disputed by the writ-petitioner when the previous writ-application was filed challenging the award and in fact, the money given through the subsequent modified award has also been accepted by the writ-petitioners. Therefore at this stage, after the lapse of long 38 years, it is preposterous to suggest that possession of the property had not been taken. Therefore at this stage, after the lapse of long 38 years, it is preposterous to suggest that possession of the property had not been taken. Annexure P-3 merely shows that at one point of time, the predecessor-in-interest of the writ-petitioner was a Rayat, but after the acquisition of the land, the property vested in the Government. The said document cannot help the writ-petitioners in any way after the acquisition for showing their status as rayat. We, therefore, find that the decision cited by Mr. Sanyal does not help his clients in any way. ( 8 ) WE, accordingly, find substance in the findings of the Tribunal that the present writ-petitioners have no existing right over the lands in question as a Rayat and as such, no question of giving them relief under Section 4 (A), 4 (B)and 4 (C) of the West Bengal Land Reforms Act arises. The Tribunal, therefore, rightly rejected the application filed by the writ-petitioners. We find no reason to interfere with the just order passed by the Tribunal. This writ-application is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs. ( 9 ) INTERIM order granted earlier stands vacated. A. S. T. 3233 of 2006 a. S. T. 3234 of 2006 sk. Abdul Mabud versus the State of West Bengal and Ors. ( 10 ) THIS mandamus-appeal is at the instance of the writ-petitioner under article. 226 of the Constitution of India filed before this Court being W. P. No. 26423 (W) of 2006 thereby refusing to grant any interim order in the said writ-application in the form of status quo prayed by the writ-petitioner. ( 11 ) THE case of the writ-petitioner herein is similar to the one pleaded by the writ-petitioners in the earlier one and in this application also the writ-petitioner prayed for an interim order restraining the respondents from disturbing his alleged possession in the property by filing an application under Article 226 of the Constitution of India alleging threat of dispossession at the instance of the respondents. ( 12 ) AS indicated above, the writ-petitioner having failed to prove prima facie title to the property which has already been acquired under the provisions of the Act long back, in our view, the learned Single Judge rightly refused to pass any interim order in favour of the writ-petitioner. ( 12 ) AS indicated above, the writ-petitioner having failed to prove prima facie title to the property which has already been acquired under the provisions of the Act long back, in our view, the learned Single Judge rightly refused to pass any interim order in favour of the writ-petitioner. We, thus, find no reason to interfere with the discretion exercised by the learned Single Judge in not granting any order of status quo over the property. ( 13 ) THIS writ-application is, therefore, devoid of any substance and is dismissed. We make it clear that the present mandamus-appeal being preferred against an order refusing to grant interim order, we have restricted our consideration only to the question of legality of the order passed by the learned single Judge impugned in this appeal. This order is without prejudice to the rights and contentions of the parties at the time of final hearing of the writ-application. This mandamus-appeal is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs. ( 14 ) INTERIM order granted earlier stands vacated. W. P. L. R. T. No. 2 of 2007 ranjit Kumar Das versus the State of West Bengal and Ors. ( 15 ) THIS writ-application under Article 226/227 of the Constitution of india is at the instance of an applicant before the West Bengal Land Reform and Tenancy Tribunal and is directed against order dated November 30, 2006 by which the Tribunal although entertain the application filed by the writ-petitioner, refused to grant any interim order. ( 16 ) THE case made out by the writ-petitioner is similar to the one made out by the writ-petitioners in the earlier two matters. In our view, having regard to the case made out by the writ-petitioner in the application before the Tribunal couple with the fact that the land in question was the subject-matter of acquisition for which award has also been passed, the said authority rightly refused to grant any interim order as the petitioner failed to make out a strong prima facie case in his favour and at the same time, the balance of convenience and inconvenience was also in favour of refusing the prayer for interim order as pointed out in the above two cases. ( 17 ) WE make it clear that this writ-application having been filed against the order refusing to grant interim order when the main application is yet to be decided, we have not gone into the full-fledged merit of the said application and this order will be without prejudice to the rights and contentions of the parties at the time of final hearing of the application before the Tribunal. This writ-application is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs. .