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2017 DIGILAW 861 (CAL)

Rajesh Bar v. State of West Bengal

2017-11-10

PROTIK PRAKASH BANERJEE

body2017
JUDGMENT : 1. Affidavit of service filed in court today is taken on record. 2. The writ petitioner claims to be the co-sharer of the non-state respondent, who is ultimately a descendant of one Laxmi Kanta Bar (since deceased). An acquisition commenced under the provisions of the National Highways Act, 1956 and an award was declared in favour of the writ petitioner and the co-sharer in respect of the land and also use of the structure. There is a dispute as to whether the petitioner Rajesh Bar is at all entitled to any compensation for the structure for which compensation was ultimately awarded to the co-sharers. The reason is because during the lifetime of Laxmi Kanta Bar by a deed of gift some land was given to Rajesh Bar over which he has a house and is residing thereon in which the Government of West Bengal through Land Acquisition Act, 1894 this appears from the brief history and report submitted today by the learned Additional Government Pleader Mr. Chandi Charan De who appears on behalf of the State. A copy of the said report is taken on record. 3. Mr. De submits that since the compensation is to be made on two heads for land and structure while the petitioner was entitled to and got compensation for the land but for the structure in respect of which the co-sharer got compensation, he is not entitled, since it is not the structure where he resides and therefore he could not be awarded any compensation. Hence, rightly no compensation was given to him. 4. The writ petitioner on the other hand did not challenge the award by way of seeking arbitration. He did not dispute the apportionment of the compensation even for the structure as aforesaid before the competent Civil Court. At this stage, it would be useful to consider Sections 3G and 3H of the National Highways Act, 1956, which are as follows: - “3G. Determination of amount payable as compensation. – (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. At this stage, it would be useful to consider Sections 3G and 3H of the National Highways Act, 1956, which are as follows: - “3G. Determination of amount payable as compensation. – (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under subsection (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respectively interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or subsection (5), as the case may be shall take into consideration— (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.” “3H. Deposit and payment of amount. (1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. (2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto. (3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. (5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent. (5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent. Per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof. (6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit.” 5. Section 3G makes it clear that the amount paid thereunder is in respect of affecting the right of the user or any right of any easement or any land which is acquired under the Act. Such compensation is also for the acquisition of the land. That is why, the public notice requires the persons interested in the land to appear. On the other hand, Section 3H(3) makes it clear that where more than one person is interested in the amount deposited under Section 3H(1), then the competent authority is to determine the person who in its opinion are entitled to receive the amount payable to each of them. But in case of any dispute arising as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof the power to determine the same does not inhere in either the competent authority or any authority under the statute, but is expressly within the jurisdiction of the Principal Civil Court of original jurisdiction within whose local limits the land is situated. The matter is to be referred by the competent authority to such Principal Civil Court. 6. In the instant case, the competent authority (Additional District Magistrate, (L.A.) being the respondent no. The matter is to be referred by the competent authority to such Principal Civil Court. 6. In the instant case, the competent authority (Additional District Magistrate, (L.A.) being the respondent no. 5 proceeded to determine the amount payable to each of the co-sharers but when the writ petitioner disputed such apportionment made by the order on July 5, 2016 where the writ petitioner was given a similar amount but paid no amount in respect of the structure in stead of referring the matter to the Principal Civil Court of original jurisdiction somehow it appears that an appeal was preferred by the writ petitioner before the District Magistrate, Nadia, who has the authority to hold the arbitration in respect of non-acceptance dispute of the award under Section 3G(5). 7. On the face of the statute, such exercise and such assumption of the jurisdiction by the respondent District Magistrate (L.A.), Nadia was wholly without jurisdiction and the purported appeal was not only without jurisdiction, but it was contrary to the provision of the statute otherwise this manner has prescribed it was procedurally ultra vires. 8. Regardless of whether the writ petitioner was entitled to a single rupee on the ground of the structure, he was entitled to have his dispute adjudicated by the authority in whom the jurisdiction had been conferred by the statute. Any other course of proceeding was necessarily prohibited and forbidden. This has been settled law since Nazir Ahmed vs. King Emperor, reported in AIR 1936 PC 253 and the catena of decisions which show that unless the act under a statue is done in the manner prescribed, it is procedurally ultra vires. 9. Hence, the adjudication by the District Magistrate (L.A) Nadia by an order dated January 16, 2017 in purported proceedings are held to be without jurisdiction and ultra vires and non est. Since the competent authority did not discharge his duty in referring the dispute to the Principal Civil Court within the meaning of Section 3H(4), no question of limitation would arise. 10. The competent authority is directed to refer the dispute to the said Principal Civil Court in the court of the learned District Magistrate, Nadia, as expeditiously as possible, but no later than 3 weeks from the date of communication of this order. 11. 10. The competent authority is directed to refer the dispute to the said Principal Civil Court in the court of the learned District Magistrate, Nadia, as expeditiously as possible, but no later than 3 weeks from the date of communication of this order. 11. It is made clear that I have not gone into the merits of the case of the petitioner or the co-sharers or the claim of the writ petitioner and have certainly not held that he is entitled to any amount on the ground of compensation for structure. The learned Principal Civil Court shall be free to determine the matter without being influenced by any observations made in this order. But he shall also take into account that deed of gift made by Laxmi Kanta Bar (since deceased). The report of the Government of West Bengal whose copy has been kept with the record as also filing of verification record all of which may be placed before the learned court of the Government or the competent authority. It is expected that the learned Principal Civil Court complete the exercise within the period of 12 weeks from entering upon the matter. The entire problem arose because of the writ petitioner having approached a wrong forum by way of a non-existent appeal and because the learned District Magistrate chose to entertain such an appeal which is not allowed in law. That the writ petitioner himself preferred the appeal is clear from paragraph 9 of the writ petition. This litigation has been protracted and the State has been dragged from pillar to post because the writ petitioner adopted procedure unknown to law. Normally, if a writ petition succeeds either the parties bear their own costs or the respondent bears the costs. This is a care where the writ petitioner having taken a chance in a forum which had no jurisdiction and having lost, has approached the writ court. Such judicial adventurism must be dealt with firmly. The law will take its own course. However, such litigation delays the progress of the case. In the peculiar facts and circumstances of the above case, the writ petitioner shall pay cost of 1 G.M. to the State of West Bengal for dragging the case unnecessarily. This cost shall be paid within one month. The law will take its own course. However, such litigation delays the progress of the case. In the peculiar facts and circumstances of the above case, the writ petitioner shall pay cost of 1 G.M. to the State of West Bengal for dragging the case unnecessarily. This cost shall be paid within one month. If the same is not paid within the time stipulated, no part of this order is required to be acted upon by the Competent Authority. 12. Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.