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2018 DIGILAW 517 (CAL)

Dilip Kumar Dutta v. State of West Bengal

2018-07-24

ARINDAM MUKHERJEE, BISWANATH SOMADDER

body2018
JUDGMENT : ARINDAM MUKHERJEE, J. 1. The appeal is at the instance of the writ petitioner wherein he has challenged the order dated 11th September, 2017 by which the writ petition being W.P. 6425(W) of 2017 (Dilip Kumar Dutta Vs. State of West Bengal & Ors.) was dismissed. 2. The appellant/writ petitioner says that his father Bimal Dutta (also referred to as Bimal Kumar Dutta), since deceased was originally the owner of R.S plot no. 7510 corresponding to L.R plot no.8347, Khatian no. 11891 under P.S Kaligunj, Mouza Debagram 60 within District Nadia, West Bengal (hereinafter referred to as the said plot of land). According to the appellant/writ petitioner, a portion of the said plot of land is vacant and the rest has structures. The said plot of land with structure was partly owned by the appellant/writ petitioner and the balance by his brother Pradip Kumar Dutta prior to acquisition as stated hereinafter. The record of rights relied upon by the appellant/writ petitioner shows that the said plot of land measures about 0.15 acre, out of which 0.054 acres of land with structure has been acquired vide L.A case no. 9A/NH/10-11 by the State authorities at the instance of the National Highway Authority of India for widening of NH-34. He further states that compensation has been awarded to him as Awardee No.611 and to his brother Pradip Kumar Dutta as Awardee No. 610. 3. The dispute, according to the appellant/writ petitioner, arose when the Special Land Acquisition Officer, Nadia and thereafter, the Competent Authority Land Acquisition, under N. H. Act, 1956 & Additional District Magistrate (LA), Nadia proceeded to award compensation for the structure on the said plot of land. It is the case of the appellant/writ petitioner that notice for hearing dated 3rd October, 2016 was issued by the Special Land Acquisition Officer, Nadia, to the appellant/writ petitioner, his brother Pradip Kumar Dutta as also to one Sujit Kumar Dutta, son of Late Nanigopal Dutta. Pursuant to the hearing, by a memo dated 27th February, 2017, the Competent Authority Land Acquisition, under N.H. Act, 1956 & Additional District Magistrate (L.A), Nadia informed the appellant/writ petitioner that by a registered deed no.4011 dated 12th December, 1990, Sujit Kumar Dutta, acquired a plot of land which was vacant and on enquiry it revealed that he(Sujit Kumar Dutta) thereafter had made construction on such vacant plot. Thus, Sujit Kumar Dutta is entitled to get compensation for the structure value that stood in the acquired plot of land. There being no restraint order against payment of structure valuation of plot no.7510, the said Competent Authority found no justification to withhold the payment to be made to Sujit Kumar Dutta at the instance of the appellant/writ petitioner. This memo dated 27th February, 2017 was under challenge in the writ petition. 4. Sujit Kumar Dutta, the respondent no.7, as also the respondent nos.1 to 4 (State respondents) through Shri Gopal Chandra Das, Special Land Acquisition Officer, Nadia filed their respective affidavits. 5. On a perusal of the affidavit filed by Sujit Kumar Dutta it appears that the said Sujit Kumar Dutta claims that the father of the writ petitioner Bimal Dutta was his paternal uncle. By a registered deed of gift dated 12th December, 1990, being number 4011, the said Bimal Kumar Dutta transferred 4 ½ decimals land in R.S Plot nos. 7511 to the said Sujit Kumar Dutta. However, according to the said Sujit Kumar Dutta, he was delivered physical possession of 1 ½ decimals of land in R.S plot no. 7511 and 3 ½ decimals land vacant land in the adjacent plot that is R.S plot no. 7510 (being the said plot of land). After being put into physical possession, the said Sujit Kumar Dutta is enjoying an area of 3 ½ decimals land in the said plot of land. It is also the case of Sujit Kumar Dutta that he surrounded the 5 decimals of land partly situated in R.S Plot no.7511 (1 ½ decimals) and partly in R.S plot no. 7510 (3 ½ decimals) with a pucca boundary. Subsequently, he constructed a two storied dwelling house thereat. He was also carrying on business of ice-candy, oil crushing, spice crushing and wheat grinding from a portion of land under his occupation by installing heavy electrical motors and other machinery parts. He further claims to be in possession of a portion of R.S plot no.7510 (said plot of land) since 1990 and structure at the portion under his occupation has been constructed by him and as such he is entitled to compensation for structure value in the said plot of land for the structures said to have been built by him. 6. In the affidavit filed by the respondent nos. 6. In the affidavit filed by the respondent nos. 1-4 it has been alleged that vide deed no. 4011 dated 12th December, 1990 Sujit Kumar Dutta purchased a vacant portion of R.S plot no. 7511 and thereafter constructed structures on R.S plot no. 7510 (being the said plot of land). It is also the case of the respondent nos. 1-4 that as Awardee nos. 609, 610 and 611, Rs.4,18,486/-, Rs.15,34,125/- and Rs.12,15,393/- has been already paid to Sujit Kumar Dutta, Pradip Dutta and Dilip Kumar Dutta respectively for the structures constructed by each one of them. 7. The appellant/writ petitioner has filed his affidavit in reply to the affidavit-in-opposition filed by Sujit Kumar Dutta, respondent no.7 wherein he alleged that his father Bimal Kumar Dutta was the owner of both the plots, R.S plot no.7510 (being the said plot) as also and the adjacent plot, being R.S plot no.7511. By the deed bearing no.4011 for the year 1990, an area of 4.5 decimals of land in R.S plot no.7511 was transferred to Sujit Kumar Dutta and as such there was no question of giving possession of any part as portion of the said plot of land to Sujit Kumar Dutta. The appellant/writ petitioner has also alleged that some of the documents relied upon by Sujit Kumar Dutta are also forged and fabricated and as such he is not entitled to any compensation for the structure on the said plot of land (R.S plot no. 7510). 8. After considering the materials on record, the rival contentions as well as the submissions advanced by the learned advocates appearing on behalf of the respective parties, we find that the genesis of the dispute was awarding of compensation separately for the acquired land and for the structures standing on the acquired land by the Competent Authority. It is also an admitted position that Sujit Kumar Dutta is not the recorded owner of any portion of the said plot of land but claims to be in possession of 3 ½ decimal land within the said plot of land. A suit for declaration and injunction said to have been filed by Sujit Kumar Dutta has also been dismissed. It is also an admitted position that Sujit Kumar Dutta is not the recorded owner of any portion of the said plot of land but claims to be in possession of 3 ½ decimal land within the said plot of land. A suit for declaration and injunction said to have been filed by Sujit Kumar Dutta has also been dismissed. It also appears that the Competent Authority on finding Sujit Kumar Dutta to be in possession of a portion of the structure standing on the said plot of land has proceeded to award compensation to him for the structure value. 9. It appears from the memo dated 27th February, 2017, that there is no specific finding to the effect as to how the Competent Authority has arrived at a conclusion that Sujit Kumar Dutta had made construction of a portion of the structure on the said plot of land. Without such specific finding – only because on verification, the said Sujit Kumar Dutta is found to be in possession of some structure standing on the said plot of land – the Competent Authority could not have proceeded to award compensation for construction, particularly when Sujit Kumar Dutta himself has admitted to have no right in respect of the said plot of land except that he is in possession of a portion thereof since 1990, as stated hereinbefore. A person in occupation cannot be said to have constructed the structure without any documentary evidence to the effect that the said person has actually made such construction. He can be in possession in various capacity which remains unascertained particularly when there is an allegation that Sujit Kumar Dutta has forged rent bills to claim tenancy in respect of a portion of the said plot of land. 10. Considering the claims and cross-claims made by the appellant/writ petitioner and the respondent no.7 we find that the entitlement of the compensation to the respondent no.7 (Sujit Kumar Dutta) in respect of the structure on plot of land cannot be decided without a detailed factual inquiry which is lacking on a plain reading of the memo dated 27th February, 2017. This exercise cannot also be done while hearing an appeal arising out of a writ proceeding particularly when the respondent nos. This exercise cannot also be done while hearing an appeal arising out of a writ proceeding particularly when the respondent nos. 1-4 in their affidavits has stated that Sujit Kumar Dutta had made construction on R.S plot no.7510 (being the said plot of land) of which he is admittedly not a recorded owner but may be in possession as claimed by the said Sujit Kumar Dutta (respondent no.7). 11. Setting aside of the said memo dated 27th February, 2017 by allowing the writ petition at this stage will be meaningless as compensation for the structure has already been awarded to Sujit Kumar Dutta in the meantime, though we are inclined to set aside the same for such reasons as discussed above. 12. We, therefore, direct the Competent Authority Land Acquisition, under NH Act, 1956 & Additional District Magistrate (LA), Nadia, to consider the matter of awarding compensation with regard to the structures situate on R.S plot no.7510 to Sujit Kumar Dutta (respondent no.7) afresh and to pass a reasoned order after affording a reasonable opportunity of hearing to Dilip Kumar Dutta (appellant/writ petitioner), Pradip Kumar Dutta and Sujit Kumar Dutta (respondent no.7) and upon considering the material that may be placed before him by exercising powers vested on him under the provision of section 3-I of the National Highways Act, 1956. This exercise should be completed as expeditiously as possible but not later than six months from the date of communication of a photostat certified copy of this order. If the disputes cannot be resolved by the said Competent Authority, he shall immediately refer the matter to the District Judge, Nadia, invoking the provision of section 3H (4) of the said Act of 1956 and the said District Judge shall dispose of such matter preferably within 6 (six) months but not later than 12 (twelve) months from the date of reference. 13. 13. In the event, the Competent Authority Land Acquisition, under NH Act, 1956 & Additional District Magistrate (LA), Nadia, find that Sujit Kumar Dutta (respondent no.7) is not entitled to any compensation for the structure on R.S plot no.7510 (being the said plot of land) or the dispute cannot be resolved at his level, the said Sujit Kumar Dutta, (respondent no.7) shall deposit Rs.4,18,486/- with the Competent Authority Land Acquisition, under National Highways Act, 1956 & Additional District Magistrate, (L.A.) Nadia, within a period of two weeks from the date of the order of the Competent Authority Land Acquisition, under National Highways Act, 1956 & Additional District Magistrate, (L.A.) Nadia. The Competent Authority Land Acquisition, under National Highways Act, 1956 & Additional District Magistrate, (L.A.) Nadia shall invest the said sum of Rs.4,18,486.00/- in a short term fixed deposit to be opened in a nationalised bank and keep the same renewed from time to time till the said amount together with accrued interest is disbursed to the persons who are actually entitled to the same. 14. The appeal and all connected applications are disposed of accordingly. There shall, however, be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.