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2009 DIGILAW 820 (CAL)

Jiban Kumar Ghosh v. STATE OF WEST BENGAL

2009-11-18

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : ASHIM KUMAR BANERJEE, J. (1.) The appellants claimed to be the owners of different contagious plots at Mouza -Manikdihi under Police Station Kaliganj in the District of Nadia. In 1960, the Land Acquisition Collector requisitioned the said land for the ultimate purpose of acquisition under the West Bengal Land (Requisition and Acquisition) Act, 1948 for the purpose of construction of raising and straightening Jagat Khali Food Protection Embankment. After the appropriate order of requisition it was the obligation of the State to take appropriate steps for ultimate acquisition of the property by initiating an acquisition proceeding issuing notice under Section 4(1a) of the said Act of 1948. The legislature subsequently enacted a law namely the West Bengal Land (Requisition and Acquisition) Act, 1994 giving its effect on and from March 31, 1994 by which Section 3 of the said Act of 1948 was omitted. The life of the said Act of 1948 was however, limited till March 31, 1997 by subsequent amendment made in 1996. Hence, on and from March 31, 1997. The said Act of 1948 stood repealed, as a result of such repeal the owners became entitled to get back possession of the said land in question, (2.) On May 2, 1997 the Land Acquisition (West Bengal Amendment) Act, 1997 was enacted which came into force with effect from June 4, 1997 giving its retrospective effect on and from April 1, 1997 to revive the pending acquisition proceedings under the Repeal Act of 1948. Two new Sections were introduced by the said amendment in the Land Acquisition Act of 1894 being Section 9(3)A and 9(3)B. Both the Sections are set out below :- "(3A) The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Ben. Act 2 of 1948) (hereinafter referred to in this section as the said Act), as reenacted by the West Bengal Land (Requisition and Acquisition)) Re-enacting Act, 1977 (West Ben. Act 2 of 1948) (hereinafter referred to in this section as the said Act), as reenacted by the West Bengal Land (Requisition and Acquisition)) Re-enacting Act, 1977 (West Ben. Act 15 of 1977), and, in every such case, the provisions of sub-section (1) of Section 4, Section 5, Section 5A, Section 6, Section 7 and Section 8 of this Act shall be deemed to have been complied with: Provided that the date of notice under this subsection shall be the date of reference for the purpose of determining the value of such land under this Act : Provided further that when the Collector has made an award under Section 11 in respect of any such land, such land shall, upon such award, vest absolutely in the Government, free from all encumbrances. (3B)The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under Section 3 of the said Act, and notice for acquisition of such land has also been published under sub-section (1a) of Section 4 of the said Act, and, in every such case, the provisions of Section 4, Section 5, Section 5A, Section 6, Section 7, Section 8 and Section 16 of this Act shall be deemed to have been complied with : Provided that the date of publication of notice under sub-section (1a) of Section 4 of the said Act shall be the date of reference for the purpose of determining the value of such land under this Act : Provided further that in every such case, the Collector shall make an award under Section 11 in respect of such land only for the purpose of payment of due compensation to the persons interested in such land has, upon the Collector taking possession thereof, already vested absolutely in the Government, free from all encumbrances." (3.) On a plain reading of both the amended Sections it would appear that under subsection 3A and 3B, the Collector was given power to initiate proceedings for acquisition under the said Act of 1894 by issuing appropriate notice in cases where property was in possession of the State on requisition under Section 3 of the said Act of 1948. (4.) By virtue of such power the Collector in the instant case issued a notice under Section 9 for acquisition of the said property in question as admittedly the property was under possession of the State on requisition under Section 3 of the said Act of 1948 and no step was taken under the said Act of 1948 for ultimate acquisition of the property during the life time of the said Act of 1948. (5.) The legislature further amended the acquisition law being the Act of 1894 by West Bengal Amendment. Section 11A was amended Which, inter alia, provides that in respect of acquisition of land either in case of sub-section 3A or in case of sub-section 3B of Section 9 the award must be made Within two years from the date of issuing of public notice under Section 9. In the instant case, there is one gray area is to Whether the present case should be considered under sub-section 3A or sub-section 96. However, whin Section 9 notice was issued by the Collector the appellants did not raise any objection With regard to its applicability. Hence, we refrain from making any comment on the same. The fact remains that the notice under Section 9 Was issued by the Collector on June 16, 2000 and the same stood lapsed on and from June 18, 2002. The State accepted such position. The State understood that it did not have any protection under the Repeal Act of 1948 as saved to a limited extent by subsequent amendment referred to above. The State initiated independent acquisition proceedings by issuing a notice under Section 4 Of the Land Acquisition Act, 1894 by making a public notification on January 27, 2007. The said notice under Section 4 also stood lapsed in view of non-action on the part of the Collector. Initially the appellants challenged the said notice under Section 4. The learned single Judge disposed of such writ petition by directing expeditious disposal of the said proceeding. However, they did not proceed any further on the basis of such notice. (6.) On or about February 5, 2009, the Collector issued another notice under Section 9 (3B) dated February 4, 2009 inter alia, intending to proceed for acquisition of the land in question exercising power under the Repeal Act of 1948. However, they did not proceed any further on the basis of such notice. (6.) On or about February 5, 2009, the Collector issued another notice under Section 9 (3B) dated February 4, 2009 inter alia, intending to proceed for acquisition of the land in question exercising power under the Repeal Act of 1948. (7.) On a sum total of the backdrop as discussed above if we bring the scenario in a narrow campus we would find :- i) In 1960 land was requisitioned and possession was taken under Section 3 of the said Act of 1948. ii) No step was at all taken under the said Act of 1948 during its life time. iii) In 1997 the effect of the said Act of 1948 spent its force because of repeal. iv) Notice under Section 9(3B) was issued in 2000 which stood lapsed in 2002 by virtue of amended Section 11 A. v) In 2007 independent proceeding under Section 4 was initiated which also was not proceeded with. vi) Notice under Section 9(3B) was again issued in February 2009 which was made subject matter of challenge in the subsequent writ petition resulting in the impugned judgment and order under appeal. (8.) The learned single Judge after considering the precedents held as follows :-i) Under Section 4(2) of the said Act of 1948, land vested absolutely in State free from all encumbrances, once notice under Section 4(1)(and) of the said Act was published in Official Gazette on September 17, 1987. Hence the land once vested could not go back to the owner. ii) In view of provisions of Section 9(3B) and second proviso to Section 11A the Collector was to conclude the proceeding within two years from the date of issuance of such notice. If he could not make the award within two years it could not be said that the acquisition proceedings stood lapsed. iii) If the Collector failed to discharge his statutory obligation to determine compensation, question of harassment might arise. But it could not be a ground for annulment of the acquisition proceeding or right to ask for return of the vested land. (9.) Appearing for the appellants Mr. Amit Kumar Pan, learned Counsel contended before us as follows :- i) It was illogical that the land would be kept requisitioned for eternity despite the said Act of 1948 having spent its force. (9.) Appearing for the appellants Mr. Amit Kumar Pan, learned Counsel contended before us as follows :- i) It was illogical that the land would be kept requisitioned for eternity despite the said Act of 1948 having spent its force. ii) If the Collector could not complete the acquisition proceedings within the time stipulated under Section 11A second proviso, the acquisition proceeding could be annulled. iii) The decisions cited by the State before the learned single Judge and relied upon by His Lordship did not consider the second proviso to Section 11A being a State amendment. iv) The proceedings once initiated under the provisions of Section 9(3B) could not be continued beyond two years in view of Section 11A second proviso and once such proceedings stood lapsed there could not be any further proceedings under the Repeal Act in absence of appropriate support of law. v) Once there was no valid requisition or acquisition proceeding pending land could not remain as vested. (10.) In support of his contention Mr. Pan cited the following decisions :- i) State of Uttar Pradesh and Others v. Rajiv Gupta and Anr. reported in (1994) 5 SCC 686 . ii) Gurudevdatta Vksss Mary Adit and Others v. State of Maharashtra and Ors. reported in (2001)4 SCC 534 . iii) Haryana Financial Corporation and Another v. Jagdamba Oil Mills and Another reported in (2002)3 SCC 496 . iv) Delhi Administration v. Manohar Lal reported in (2002)7 SCC 222 . v) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. reported in (2003)2 SCC 111 . vi) Mohan and Another v. State of Maharashtra and Ors. reported in (2007) 1 Cal LJ(SC)319. (11.) Opposing the appeal Mr. A.N. Banerjee, learned Counsel appearing for the State contended that it was true that the earlier notice stood lapsed, however the State was entitled to issue further notice under Section 9(3B) and second proviso to Section 11A had no application in the instant case. He further contended that the notice might lapse in view of expiry of the statutory period but It would not annul the entire proceeding ipso facto as the land stood vested in the State free from all encumbrance. The only obligation left to the State was to pay compensation to the owners and nothing else. He lastly contended that ad hoc payment was made by the State. The only obligation left to the State was to pay compensation to the owners and nothing else. He lastly contended that ad hoc payment was made by the State. However, such assertion was categorically denied and disputed by Mr. Pan appearing for the appellant. (12.) In support of the contention Mr. Banerjee cited the decisions of the Apex Court which was cited before the learned single Judge which are as follows :- i) The State of Orissa and Ors. v. Bhupendra Kumar Bose and Ors. reported in AIR 1962 SC 945 . ii) Satendra Prasad Jain and Ors. v. State of Uttar Pradesh and Ors. reported in AIR 1993 SC 2517 . iii) Awadh Bihari Yadav and Ors. v. State of Bihar and Ors. reported in AIR 1996 SC 122 . iv) U.P. Jal Nigam and Anr. v. M/s. Kalra Properties (P) Ltd. and Ors. reported in AIR 1996 SC 1170 . v) Pratap and Anr. v. State of Rajasthan and Ors. reported in AIR 1996 SC 1296 . (13.) If we have to accept the contention of the State we would have to hold that since the properties stood vested on the State by virtue of Section 3 of the said Act of 1948 the owners lost every right on the land in question except receiving appropriate compensation. This logic comes from the abstract proposition of law on acquisition that once the land vests in the State it cannot be divested by returning it to the owners. If we accept such logic, the effect would be that the State would hold the land for eternity without payment of any compensation as has been done in the instant case. Land was taken in 1960. We would find hardly one year left to celebrate the Golden Jubilee of the order of vesting or rather deprivation of the right of the lawful owners either to have their land or to have compensation in view thereof. We feel it difficult to conceive to accept the logic so canvassed by His Lordship in His Lordships well-versed judgment that although it would amount to harassment to the land owners after the Collector does not pay the compensation it would not entail them to ask for the land back. We ask ourselves a question whose answer is not known to us. We ask ourselves a question whose answer is not known to us. A person who has right to enjoy his property subject to the restrictions provided in the Constitution and by the law lawfully enacted by the legislature, would not be paid any compensation despite his land being taken away. The present case is a unique instance where for forty-nine years the State did not pay a single penny to the land owners on account of compensation after they were deprived of the possession of the land in question. Is it the law of the land ? The learned Judge observed that the State was harassing the appellants. Even then His Lordship dismissed their writ petition. We are unable to accept such view. (14.) In the instant case when an earlier notice was issued independently under Section 4, the learned single Judge directed expeditious completion of the acquisition proceeding by declaration of award. It was not done. Application was made for extension of time, even within the extended period nothing was done. It was then contended before us that State did not want to proceed in accordance with the notice challenged in the earlier writ proceeding. (15.) The Constitution is for the people of the State. The law enacted by the legislature by virtue of the power conferred upon them by the Constitution must be for the welfare of the people at large. The people cannot be left at large without remedy. It cannot be disputed that the subject land was taken for a public purpose. However, the private owners did not commit any crime for which they would have to wait for eternity and specially at the mercy of the handful of bureaucrats. When they would find time to determine the compensation and pay it to the lawful owners, is not known. That was not the intent of the legislature as well. The second proviso to Section 11A was enacted only to avoid unnecessary delay in completing the acquisition proceedings. It would be meaningless to fix a time period and without a default clause. A statutory law is to be given an appropriate meaning. If beyond two years proceeding is not completed and the acquisition proceeding is held to be valid the second proviso, in our view, would be ineffective. (16.) The second proviso to Section 11A came into force with effect from May 2, 1997. A statutory law is to be given an appropriate meaning. If beyond two years proceeding is not completed and the acquisition proceeding is held to be valid the second proviso, in our view, would be ineffective. (16.) The second proviso to Section 11A came into force with effect from May 2, 1997. Hence, we can safely avoid discussing the cases cited at the Bar on behalf of the State prior to 1997. However, we may observe that the decision in the case of Pratap and Another, the acquisition proceeding was completed. The Apex Court observed that failure to pass award or to make payment within the stipulated period could not render the acquisition proceeding nugatory. In the instant case nothing was done. In the said case Section 11A was considered without the second proviso which was a State amendment made by the West Bengal legislature. In the case of U.P. Jalnigam (supra) the possession was taken under Section 17(2) of the said Act of 1894 by depositing eighty per cent of the value of the land in question. In the instant case the said decision, in our view, cannot help us as we do not find any definite assertion on that score. (17.) Mr. Banerjee contended that the time bound schedule could affect the acquisition proceedings had it been a case under Section 9(3A) and not 9(3B). If we take a close look of the said two provisions we would find that sub-section 3A makes the cases revived on a notice by the Collector, where possession was with the State on requisition under Section 3 whereas sub- section 3B revived the cases where not only possession was with the State under Section 3 but also notice of acquisition had also been issued under Section 4(1a). (18.) In paragraph 8 of the Affidavit-in-Opposition statement was made to the effect that notice under Section 4(1 a) was published on September 17, 1987. At the same time the deponent being the Land Acquisition Officer also admitted that the proceeding could not be concluded due to non-placement of fund by the requiring body. No such Gazette Notification was however annexed and/or produced by this State. (19.) Hence it could not be a case under Section 3B and it was a case, admittedly, under Section 3A. Hence, even on the own admission of Mr. Banerjee the second proviso of Section 11A would be applicable. No such Gazette Notification was however annexed and/or produced by this State. (19.) Hence it could not be a case under Section 3B and it was a case, admittedly, under Section 3A. Hence, even on the own admission of Mr. Banerjee the second proviso of Section 11A would be applicable. (20.) The Division Bench in the case of State of West Bengal and Ors. v. Sabita Mondal and Ors. reported in (2008)3 Cal HN 226, elaborately analyzed the relevant laws on the subjects and its amendments. The Division Bench ultimately came to a conclusion, the legislature in their wisdom declared the old cases as lapsed by implication by incorporating Section 7a where cases were not disposed of beyond 1995. The legislature by amending 1997 Act revived those cases under Act I. Hence, the State was entitled to carry on the acquisition proceedings in respect of all cases where requisition was made under Section 3 prior to April 01, 1994 irrespective of the fact whether the notice under Section 4(1a) was given or not Notice under section 4(1a) becomes relevant only for the purpose of assessment of compensation. A notice under Section 4(1a) as stipulated in the amending provision of the statute would certainly mean a valid notice. By bringing 1996 amendment the cases where awards were not published beyond 1995 stood lapsed. To maintain harmony legislature thought it fit to bring further amendment and as such Section 54a was incorporated in Act I. On a plain reading of Section 54a we find all cases pending requisition under Section 3 of Act II stood revived and were to be dealt with either under Section 9(3a) or under Section 9 (3b). (21.) If we apply the above analogy we have to hold that all pending cases under the said Act of 1948 stood revived and Collector was empowered to issue appropriate notice under Section 9(3A) or under Section 9(3B), as the case may be. In the instant case, such notice was given and the proceeding was to be completed within two years as per second proviso to Section 11A which was not done. In the instant case, such notice was given and the proceeding was to be completed within two years as per second proviso to Section 11A which was not done. Hence, in the instant case the benefit of the amendments which revived the old and pending cases of requisition and/or acquisition, as the case may be under the said Act of 1948 is not available to the State in view of their laches and negligence in completing the acquisition proceeding within the time so stipulated in the second proviso to Section 11 A. (22.) The problem may be viewed from another angle. The earlier notice under Section 9(3B) stood lapsed in 2002. The State accepted the situation and decided to start independent proceeding under the said Act of 1894 and issued a notice under Section 4 that was challenged in a writ proceeding. The learned single Judge directed expeditious disposal of the said proceeding. The State did not do so, instead they prayed for extension of time to complete the proceeding. Hence, the State should not be allowed to go back and change their stand to the detriment of the land owners. (23.) In our view the learned single Judge was not right in dismissing the writ petition which should have been allowed. The impugned judgment and order is thus set aside. (24.) The land was admittedly requisitioned for a public purpose. By this time the project must have been completed. Hence, the nature and character of the land also changed. In such view of the matter it would not be proper to direct return of the land which may also not be possible. We, however, direct the Land Acquisition Collector to proceed in terms of the order dated September 27, 2007 passed by the learned single Judge passed in W.P. No. 13586 (W) of 2007. We however feel that the Collector need not comply with the provisions of Section 5, 5A, 6, 7 and 8 of the said Act of 1894 and would proceed to determine the award under Section 11. Such award must be at the appropriate market price and not at the price which was prevalent in 1960 or 1987 or so soon thereafter. (25.) The learned Judge in His Lordships judgment and order observed that notice under Section 4(1 a) was published in Official Gazette on September 17, 1987. Such award must be at the appropriate market price and not at the price which was prevalent in 1960 or 1987 or so soon thereafter. (25.) The learned Judge in His Lordships judgment and order observed that notice under Section 4(1 a) was published in Official Gazette on September 17, 1987. Even if such position is accepted it would be travesty of justice if we ask the State to pay compensation at the market rate prevalent in 1987 as interest and/or solatium may not yield appropriate relief to the land owners for deprivation of their land for last forty-nine years. Under the circumstances, in the interest of justice we accordingly direct the Land Acquisition Collector to complete the proceeding in terms of the order dated September 27, 2007 by determining the amount of compensation by publishing the award within a period of six months from the date of communication of this order. The Collector would, however, keep in mind the observations made by us in the foregoing judgment while making his award. (26.) The appellants are also directed to co-operate with the State in having the compensation determined and award published within this stipulated period. (27.) We further make it clear that in case the Collector fails to complete the adjudication by publishing the award within the stipulated period the appellants would be entitled to approach us for modification of this order, inter alia, praying for an appropriate direction upon the State including initiating appropriate proceedings against the Collector for contempt of Court. (28.) The appeal is disposed of accordingly. (29.) There would be no order as to costs.