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2009 DIGILAW 635 (CAL)

Shantilal Atta v. STATE OF WEST BENGAL

2009-08-20

TAPEN SEN

body2009
Judgment : TAPEN SEN, J (1) In this Writ Petition, the Petitioners have prayed for the issuance of a Writ of Mandamus commanding upon the Respondents to abandon their move and/or their scheme of acquisition of their land being Plot No. 459; Premises No. 171; Mouza and Police Station, Malipanchghora, G.T. Road (North) within the Howrah Municipal Corporation. (2) The Petitioners have further prayed for the issuance of a Writ of Mandamus commanding upon the Respondents to return and/or release the said land to them even if it has already been acquired as the same has been so done in an illegal and arbitrary manner and without any Notice to them. The Petitioners have also prayed for the issuance of a Writ of Mandamus directing the Respondents to allow them to carry on with their industrial business of foundry under the name and style of M/s. Attas Iron Foundry, without any interference. (3) The facts as could be gathered from the Writ Petition are that the Petitioners are the absolute owners having physical possession on a one acre of Karkhana land situated on R.S. Plot No. 479 corresponding to R.S. Khatian No. 256; P.S and Mouza-Malipur; JL No. 1 on Howrah Municipal Corporation Premises No. 171; G.T. Road, (North), Howrah (hereinafter referred to as the said land). (4) According to the further case of the Petitioners, they inherited the property from their predecessors and their names have been recorded in the revenue record of rights and they have been running their family Foundry under the name and style of M/s. Attas Iron Foundry on the said land as partners and on the basis of a Partnership Deed. According to the further case of the Petitioners, the said Foundry is more than one hundred years old and is one of the oldest in the country. According to the further case of the Petitioners, there are several buildings on the land including staff quarters, Darwan quarters, Godowns, electrical power house for hightension electricity together with transformer, shed, plants, machinery, furniture, weighing machine, raw materials, and other fixtures etc. of the value of at least Rs. 40 lakhs apart from the value of the land plus a huge building. The Petitioners have stated that the articles are insured and that they are praying premium to the Insurance Company. They have also stated that they have regularly filed Returns. of the value of at least Rs. 40 lakhs apart from the value of the land plus a huge building. The Petitioners have stated that the articles are insured and that they are praying premium to the Insurance Company. They have also stated that they have regularly filed Returns. (5) The Petitioners further case is that the Foundry was fully operational with about 59 workers and employees (direct and indirect) up to the year 1990 but subsequently, in a Writ Petition, being W.P. (Civil) No. 3727 of 1985 (M.C. Mehata Vs. Union of India and Ors.), the Supreme Court passed an Order on 6.8.1996 directing the District Magistrate and the Superintendent of Police of the concerned area to have the foundries closed with immediate effect and send compliance report to the Pollution Control Board. The Supreme Court also directed that as and when these industries construct pollution control devices, the same shall be inspected by the Board and thereafter, the Apex Court would consider the suspension of the Order of closure. According to the Petitioners, the order of the Honble Supreme Court has been brought on record at Annexure- P4 and from the list of the foundries which were directed to be closed in terms of the said Order, the Petitioners foundry was listed at Serial No. 7 therein. It has further been stated that in compliance of the Order of the Honble Supreme Court, they stopped production temporarily for purposes of installing pollution control devices and modernizing the foundry for which a sum of Rupees 8 to 10 lakhs was required. Since the foundry was running under serious financial stringency, it had to be closed down and could not be started nor could the pollution control devices be installed immediately. The situation got even worse with the death of the brother of the Petitioner No. 1 namely Sovanlal Atta who was also the husband and father of the Petitioner Nos. 2 and 3 respectively. It has been stated that the said Sovanlal Atta was a cosharer of the land and was also 50% owner of the concern but he died on 12.4.2006 on account of acute illness and a huge amount of money had to be spent for his treatment and therefore, the entire attention of the family was diverted towards him. It has been stated that the said Sovanlal Atta was a cosharer of the land and was also 50% owner of the concern but he died on 12.4.2006 on account of acute illness and a huge amount of money had to be spent for his treatment and therefore, the entire attention of the family was diverted towards him. However after 2006, the Petitioners could arrange some funds and as per the advice of a qualified Engineer and the Guidelines of the West Bengal Pollution Control Board, they could start modernisation and installation of the pollution control devices in terms of the Order of the Honble Supreme Court and in that process, they spent several lakhs of rupees. (6) On 5th February 2008, the Petitioners were informed by Memo No. 416/ LR issued by the Sub-divisional land and Land Reforms Officer, Sadar that since the factory remained closed for long years, a reconnaissance survey would be conducted on 12.2.2008 at 1 P.M. and therefore, the Petitioners be present with all necessary documents such as Khatian, Map etc. This Notice has been brought on record vide Annexure- P6. (7) According to the Petitioners, this was the first Notice that was received by the Foundry and/or the Petitioners from the authorities and prior thereto they had not received any other communication or Notice whatsoever. They have further stated that nothing was disclosed in the said Notice save and except that there would be a reconnaissance survey and as law abiding citizens, they allowed the officers to conduct the survey on 12.2.2008 when the Petitioner No. 1 was also present and when he asked the reason for the survey, the concerned Officer informed him that it was routine in nature and was told not to worry about it. Thereafter, on the 7th March 2008, the Petitioner No. 1 by his letter, requested the authorities to close the matter. On 10.3.2008, a Memo was issued under Memo No. 634/LR by the sub-divisional land and Land Reforms Officer, Sadar, Howrah informing that a hearing would take place on 13.3.2008 regarding utilisation of the land and the Petitioner No. 1 was asked to attend. (8) On 13th March, 2008 the SDL and LR Officer assured the Petitioner that the Government will not proceed in the matter and that it would be soon closed. Having been thus assured, the Petitioners did not take any further steps. (8) On 13th March, 2008 the SDL and LR Officer assured the Petitioner that the Government will not proceed in the matter and that it would be soon closed. Having been thus assured, the Petitioners did not take any further steps. (9) Thereafter while the Petitioners were taking steps to implement the Order of the Supreme Court and installing new devices for running the foundry in full swing after spending several lakhs of rupees, they came to learn from local shopkeepers that the Howrah Improvement Trust (hereinafter referred as the HIT) was going to construct a flyover at the Salkia Chowrasta on the G.T. Road (North). They were also told that the authorities of the HIT and its Collector had decided to acquire the land of the Petitioners for purposes of rehabilitating the evictee shopkeepers/traders/businessmen so that a market complex on the said land can be constructed. (10) The Petitioners further learnt, for the first time, that the land was going to be acquired. Since the matter was urgent and serious, they requested the Respondent No. 2 and the Respondent No. 6 vide letter dated 11.12.2008 (Annexure- P7) to inform as to whether any move, in fact, had been taken to acquire their property and if so, under what provisions of law and, if such a move had been taken, then to abandon and withdraw such proposals. The Petitioners did not receive any reply but came to learn that the reconnaissance survey held on 12.2.2008 was actually to deceive the Petitioners by keeping them in complete darkness and thereby preventing them for taking legal steps. (11) It is the further case of the Petitioner that since the Petitioners factory is in existence for more than 100 years and is still in existence, the scheme to acquire the same for alleged rehabilitation of shopkeepers/traders/businessmen is against the industrial policy of the Government and that such a step, without serving any Notice upon the foundry and its partners at any point of time, is therefore a colourable exercise of power and in violation of the principles of natural justice as well as Article 14 of the Constitution of India. (12) A supplementary Affidavit has been filed on behalf of the Petitioners wherein it has been stated that after filing of the Writ Petition, the Chief Executive officer of HIT by his letter dated 3.1.2009 had informed a Tenant of the Petitioners (i.e. the Branch Manager, Indian Bank) that the said land has been acquired for the Salkia Flyover Project and that it has been handed over to the HIT on 3.1.2009 itself and therefore, since the Bank was located in a three storied building within the acquired property, they were directed to apply for temporary lease from the said HIT for running their Office from the existing place till alternate space was allotted to them. They were also informed to keep in touch with Offices which were concerned for rendering regular civic services. The said letter dated 3.1.2009 has been brought on record vide Annexure-P1 appended to the said Supplementary Affidavit. (13) In the said Supplementary Affidavit, the Petitioners have also stated that the property has been acquired and Award passed without following the due process of law and without calculating the value of the property and without also giving any opportunity of hearing to them. The authority has taken possession on paper which is illegal. According to the further case of the Petitioners, the property is not at all required for the flyover and in the name of the flyover, it is being sought to be acquired for a complex for commercial purposes. It has also stated that if the land is acquired for one purpose but is used for another purpose, then such an acquisition is not sustainable in the eye of law. (14) It has also been stated that no Notice was served upon the Petitioners in the Award making process by which they could have adduced evidence in respect of the price of the land and it was during the pendency of the Writ Petition that they came to learn that the Collector had declared the Award and therefore, by way of abundant caution, they filed an Application under Section 18 of the Land Acquisition Act. (15) According to the further case of the Petitioners and as has been stated in the Supplementary Affidavit dated 23.2.2009, although the land is situated far away from the proposed flyover, yet the authorities have put a lock on the main entrance and have closed the ingress and egress to and from the premises. (16) An Affidavit-in-opposition has been filed on behalf of the Respondent Nos. 5 and 6 (HIT and its Chief Executive Officer) wherein they have stated that physical possession was taken by putting a lock on the main door of the property in question and on 1.3.2009, the land Acquisition Collector handed over possession to the HIT. It has further been stated that the acquisition has been made for a public purpose for rehabilitation programme for the construction of the Salkia Flyover and also for the compliance of the Judgment passed by the Honble Apex Court. It has also been stated that the Petitioners were aware of the Notification made under Section 4 of the Land Acquisition Act whereafter a Notification under Section 6 was also made but they chose not to appear and did not even file their Objections and it was only when the Award was passed that they filed this Writ Petition claiming ignorance of the entire proceedings being LA case No. 4 (Act 1) 2008-09. They have also stated that the property is a vacant, unused factory shed which was used long time ago and the State has the right to acquire any property for public purpose and if the Petitioners are at all the legal heirs of the persons whose names have been reflected in the records of rights, then they have the liberty of withdrawing the amounts within the statutory period after producing relevant documents in support of their claims. (17) An Affidavit-in-opposition dated 29.4.2009 has also been filed on behalf of the Respondent Nos. 1,2 and 3. In the said Affidavitin-opposition, it has been stated that as per Record of Rights, the owners of Plot No. 459 are Manilal Atta, son of Nafar, Keshablal Atta, Matilal Atta, sons of Bishnupada Atta and Apurba Kumar Atta, son of Pannalal of 139, Shibgopal Banerjee lane, Howrah. (18) They have also stated that there was no running business prior to the land acquisition and although the land was recorded as Karkhana, it was lying unused for a long period of time. (18) They have also stated that there was no running business prior to the land acquisition and although the land was recorded as Karkhana, it was lying unused for a long period of time. They have also stated, with reference to Paras- 10,11 and 12 of the Writ Petition, that the foundry stood closed since 1996 and that the Notification under Section 4 was published in the Calcutta Gazette on 10.7.2007, in the Ganashakti on 15.9.2007, in the Times of India on 19.7.2007 and in the locality, on 29.11.2007. Objections under Section 5 were received and disposed of but the Petitioners chose not to file any Objection. (19) It has further been stated that thereafter Declarations under Sections 6 and 7 of the Land Acquisition Act were published in the Times of India and Ganashakti on 13.6.2008; in the Calcutta Gazette on 16.6.2008 and in the locality on 25.7.2008. Notice under Section 9 was also issued but the Petitioners refused to receive the Notice. The property was then handed over to the requiring body on 3.1.2009. (20) An Affidavit-in-opposition has been filed by the Respondent Nos. 5 and 6 wherein, while referring to the aforementioned dates of publication, they have stated in para-3(f) that the land is required for the rehabilitation of the affected persons whose land and business will be affected due to the implementation of the Salkia Flyover Project. The Project was prepared in the year 1990 proposing a flyover with a 2-lane carriage-way with single-lane low level road on either side for an amount of Rs. 485 lakhs. Originally it was a Howrah Municipal Corporation Project and the HIT was the implementing authority but subsequently, it was transferred to the HIT as per decision taken by the said Municipal Corporation on 26.3.2004. Thereafter, for purposes of implementation of the said Project, acquisition of the land on either side of the G.T. Road became necessary and therefore, the cost of compensation towards land and structures thereon was included in the Project. However, being aggrieved by such a Project, some affected persons filed a Writ Petition before this Court being C.O. No. 14861 (W) of 1990 which ended in a compromise with the parties and it was decided that the occupiers of the buildings, owners of shops and establishments would be rehabilitated. However, being aggrieved by such a Project, some affected persons filed a Writ Petition before this Court being C.O. No. 14861 (W) of 1990 which ended in a compromise with the parties and it was decided that the occupiers of the buildings, owners of shops and establishments would be rehabilitated. Consequently 64 dwelling units were constructed, 42 shops were also constructed for their rehabilitation at 24 and 25 Dhol Govinda Lane but this was not accepted by them for which they again filed a Writ petition before this Court being W.P. No. 16348 (W) of 1996. This was dismissed by Order dated 10.11.1996. Being aggrieved, an Appeal was filed being FMAT 3655 of 1996 which was also dismissed by an Order dated 16.3.2000. Thereafter the matter went up to the Supreme Court vide Civil Appeal No. 5183 of 2001 and by a Judgment dated 8.8.2001 the Honble Supreme Court directed the Respondent authorities to comply with the Order dated 13.2.1991 and particularly Paragraph (viii) thereof relating to the site of allotment. (21) A Supplementary Affidavit to the Affidavit-inopposition has also been filed by the HIT wherein, while referring to the statements made in para- 3(J) of the main Affidavit-in-opposition, the Judgments as referred to therein have been enclosed but for purposes of dealing with this matter, it will be relevant to refer to the relevant portions of the Judgment passed by the Supreme Court in Civil Appeal No. 5183 of 2001 (Salkia Businessmen Association and Ors. Vs. Howrah Municipal Corporation and Ors.). (22) The Honble Supreme Court referred to the Order dated 13.2.1991 passed by this Court in Civil Order NO. 14861 (W) of 1990 which was disposed of in terms of the settlement arrived at between the parties. (23) The said Order dated 13.2.1991 passed by this Court in Civil Order No. 14861 (W) of 1990 is necessary to be quoted as it disposed of the Writ Petition in terms of the Settlement which contained Paragraph(viii) referred to above. The said Order dated 13.2.1991 reads as follows:- An application for for settling the dispute has been filed by the parties. The Ld. Lawyers appearing for the parties submit that the writ petition be disposed of in terms of the said application for settlement. Let there be an order that the writ petition is disposed in terms of the settlement made by the parties. The Ld. Lawyers appearing for the parties submit that the writ petition be disposed of in terms of the said application for settlement. Let there be an order that the writ petition is disposed in terms of the settlement made by the parties. Xerox copy of the application for settlement and the order passed today be given to the parties concerned. Let the writ petition be disposed of accordingly. The affidavit in opposition and reply filed by the parties be kept with the records. The 13-2-1991 Tarun Chatterji (Quoted from Page 9 of the Supplementary Affidavit filed by the Respondent Nos. 5 and 6 dated 19.6.2009) (24) Paragraph(viii) of the Terms of Compromise reads as follows:- (VIII) The respondents-Authorities shall see that the displaced persons will get alternative permanent accommodation on G.T. Road between Khetra Mitra Lane and Sri Ram Dhanga Road, excepting owners of petrol pump and factories, if any. However, these persons will be rehabilitated appropriately by the Rehabilitation Committee of the earliest in terms of paragraph 9 of this settlement. (Quoted from Pages 17-18 of the Supplementary Affidavit filed by the Respondent Nos. 5 and 6 dated 19.6.2009) Paragraph (ix) of the Settlement/Terms of Compromise reads as follows:-ix) The Respondents/authorities shall see that after displacements, the shop keepers traders/other persons get alternative permanent accommodation more or less with the area they had been occupying in their respective occupation prior to the displacements. However if any affected person demands area more than the acquired area they shall have to pay market value for the same. (Quoted from Pages 18 of the Supplementary Affidavit filed by the Respondent Nos. 5 and 6 dated 19.6.2009) (25) The Supreme Court then allowed the Appeal and by reason of the operative portion of the Order/Judgment dated 8.8.2001, observed that the Respondents were obliged, as public authorities, to comply that the order dated 13.2.1991 and particularly Para-(viii) thereof relating to the place or site of allotment of alternative sites and other stipulations, in letter and spirit, giving the said Order full effect. The operative portion of the said order reads as follows:-The Division Bench of the High Court equally fell into the same error and went in our view, aside and beside the real issue and point before them. The orders of the High Court under challenge are set aside. The operative portion of the said order reads as follows:-The Division Bench of the High Court equally fell into the same error and went in our view, aside and beside the real issue and point before them. The orders of the High Court under challenge are set aside. The respondents are obliged and as public-authorities are bound to comply with the orders dated 13.2.91 particularly clause/paragraph (viii) of it, relating to the place or site of allotment of alternative sites and other stipulations, in letter and spirit giving the said order full effect. The appeal shall stand allowed, accordingly. No costs. (Quote from Pages 52-53 of the Supplementary Affidavit filed by the Respondent Nos. 5 and 6 dated 19.6.2009) (26) It is the further case of the Respondents that pursuant to the direction passed by the Supreme Court, the Board of the HIT took a decision on 10.9.2006 for further acquisition of the extra land to rehabilitate the shops/traders directly abutting on the G.T.Road and as such, the acquiring body acquired the plot through the competent authority. These Respondents have further stated that with the increase in traffic the scheme of construction of the flyover has been revised from a 2-Lane carriage way to a 3- Lane of low level road (two lanes towards west and one towards east) and acquisition of more lands has also been proposed and the cost of construction has been increased to Rs. 30 crores by the West Bengal Transport Department by their letter dated 27.4.2007. (27) Some persons also filed another Writ Petition being W.P. 31547 (W) of 2008 and an Honble Single Judge of this Court passed an Order on 20.4.2009 disposing of the same with a direction that the affected persons will be rehabilitated within the location fixed by the Supreme Court. They have further stated that M/s. Atta Iron and Foundry situated on Plot no. 459 under the Malipanchghora Mouza, Premises No. 171, G.T. Road, had closed its business for a long period of time and physical inspection would show that it is more or less a vacant, broken, unused factory shed with land and that one building situated on the premises, is used as a marriage hall and the other, rented out to a Bank. According to these Respondents, this is an ideal location where affected persons can be relocated and as such, proposals were sent to the Land Acquisition Department to acquire the property for implementation of the scheme for construction of the Salkia Flyover Project. (28) In reply, the Petitioners have stated that from the said Affidavit, it will be evident that the entire acquisition has been made without following the due process of law and that the plot in question is not required for the Salkia Flyover Project. They have further stated that the said land is far away from the flyover and that the land in question is not at all vacant as there is a factory and building as well as a tenant of the Petitioners, being the Bank of India. It has further been stated that the entire proceedings were completed behind the back of the Petitioners and that the factory is not closed but production merely suspended. They have further stated that if acquisition is for another purpose, then the acquisition proceedings becomes void and the Petitioners have the right to challenge the same at any point of time. It has also been stated that since the land in question is being sought to be acquired for shop owners, no notice was issued under Section 9. (29) It is their further case that the Salkia flyover project has not seen the light of the day and it is lying idle for almost 19 years. (30) Similar submissions have been made in the other Affidavits being Affidavit-in-reply to the Affidavit-in-opposition of the Respondent Nos. 5 and 6 repeating that the Petitioners were compelled to close down the factory on the Orders of the Supreme Court and that there are buildings and a tenant and that the land is not vacant and the factory remained closed only because of the Order of the Supreme Court and therefore the question of the land being vacant or unused does not arise and the authority cannot acquire the same for rehabilitation which is not a subject matter of acquisition inasmuch as the Notification for acquisition was only for the Salkia Project. (31) The pleadings made in the Affidavits as well as the documents brought on record show that the Respondents completed the process of acquisition by taking recourse to Sections 4 and 6 which were published on 10.7.2007 and 16.6.2008. (31) The pleadings made in the Affidavits as well as the documents brought on record show that the Respondents completed the process of acquisition by taking recourse to Sections 4 and 6 which were published on 10.7.2007 and 16.6.2008. Thereafter, from their own statement made in Paragraph 22 of the Writ Petition, it is evident that the Petitioners filed a representation on 11.12.2008. However, the said Representation as contained in Annexure- P9, appears to be signed on 7.3.2008. Therefore, it cannot be said that they did not have any knowledge of the Proceedings under the Land Acquisition Act. From their own showing in the Supplementary Affidavit dated 23.2.2009 also, the Petitioners have themselves stated in Para-8 thereof that they have already filed an Application under Section 18 of the Land Acquisition Act for higher compensation. In other words, having filed an Application for higher compensation, the Petitioners also want this Court to exercise its discretion under Article 226 of the Constitution of India for setting aside the acquisition Proceedings. This cannot be allowed. (32) On the point that the Respondents cannot acquire for rehabilitation and that there must be a separate Notification for rehabilitation, the same does not appeal to this Court as the acquisition proceedings were not only for the flyover but it was for a project (the Salkia Flyover Project). Whenever a project is undertaken, it includes a large infrastructure to be constructed within which, the State has to construct so many other things to make the said project viable and successful. Unless it rehabilitates persons who are likely to be displaced, such a Project can never be completed and therefore, it is a misnomer on the part of the Petitioners to say that there must be a separate Notification for rehabilitation or that since the acquisition pertains to a flyover, it cannot proceed to acquire for rehabilitation. (33) Moreover, the Order of the Supreme Court read with Paras (viii) and (ix) of the Terms of Settlement and the Order of the High Court leaves no confusion at all that displaced persons are to be rehabilitated. The Respondents have categorically stated that the Plot in question where the closed foundry is located is the nearest, acquirable, unused, vacant location situated upon the Khetra-Mitra Lane and Sri Ram-Dhanga Road where persons whose lands were acquired can be rehabilitated in compliance of the directions passed by the Apex Court. The Respondents have categorically stated that the Plot in question where the closed foundry is located is the nearest, acquirable, unused, vacant location situated upon the Khetra-Mitra Lane and Sri Ram-Dhanga Road where persons whose lands were acquired can be rehabilitated in compliance of the directions passed by the Apex Court. There is nothing on record to disbelieve such a statement. (34) So far as the question that no individual Notices were given, this Court takes Notice of the Judgments passed by the Supreme Court in the case of State of Gujrat Vs. Panch of Nani Hamams Pole and others reported in AIR 1986 SC 803 and the Judgment of the Madras High Court passed in the case of Ghousia Begum Vs. The Union Territory of Pondicherry reported in AIR 1975 Madras 345. From both the Judgments, it is evident that individual Notices in such matters are not necessary to be given. That apart, this Court notices that having not objected within the statutory period fixed, the Petitioners cannot be said to have any locus standi at this belated stage and come forward with this Writ Petition. (35.) For the reasons stated above, this Court is of the view that there is no illegality in the acquisition proceedings and therefore, the Writ Petition cannot be entertained. It is accordingly, Dismissed. No Order as to costs. Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.