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2018 DIGILAW 607 (CAL)

Pranab Chakraborty v. State of West Bengal

2018-08-27

HARISH TANDON

body2018
JUDGMENT : Harish Tandon, J. 1. The petitioners' land was requisitioned under Section 3 of West Bengal Land (Requisition and Acquisition) Act, 1948. Subsequently, a notice was published under Section 4 (1a) of the said Act for acquisition thereof. 2. It is not in dispute that the Collector made and published an award on 5th June 1996. The petitioners did not raise any dispute under Section 8 of the said Act and received the compensation, awarded by the Collector. 3. Since the said Act was a temporary in nature, its tenure was extended by the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1994 till 31st March 1997, The said temporary Act met its natural death as the tenure was not extended thereafter. 4. A large tract of land comprised in Mouza Rauta was requisitioned and later on acquisitioned by the State and one of the land looser felt aggrieved by the quantum of compensation determined by the Collector and raised a dispute to be referred to the Land Acquisition Tribunal for determination. The said proceedings ended on 24th June, 2002 enhancing the compensation so determined by the collector. It is naturally a fresh award, as the award made by the collector merged with it. The father of the petitioners made an application under Section 28A of Land Acquisition Act, 1894 on 19th September, 2002 i.e. within three months from the date of the award passed by the Land Acquisition Tribunal for redetermination of the compensation in terms of the award made by the said Tribunal. The present writ petition is filed for direction upon the collector to dispose of the said application as the same has been kept in suspended animation for indefinite period. 5. A preliminary point is taken by the learned Advocate appearing for the State that the said application is incompetent and not maintainable under the aforesaid provision of Act 1 of 1894. The foundation to such point appears to have been laid on the premise that the award was made under Act II of 1948 which received the natural death in the midnight of 31st March, 1997 and, therefore, the provision of Act 1 of 1894 is not applicable. 6. The foundation to such point appears to have been laid on the premise that the award was made under Act II of 1948 which received the natural death in the midnight of 31st March, 1997 and, therefore, the provision of Act 1 of 1894 is not applicable. 6. Before this Court proceeds to deal with the aforesaid point urged in the instant writ petition, it would be relevant to reproduce certain provisions of Act II of 1948 and Act I of 1894, which runs thus: "8. Reference to Court. -(1) The Collector shall in every case- (a) where any person interested being aggrieved by an award made under sub-section (2) of Section 7 or clause (ii) of sub-section (4) of that Section makes an application requiring the matter to be referred to the Court; or (b) where there is any disagreement with regard to the compensation payable under sub-section (3) of Section 7 between the Collector and any person interested in compensation, refer the matter to the decision of the Court. (2) The provisions of sub-section (2) of Section 18 and of Sections 19 to 22 and of. Sections 25 to 28A of the Land Acquisition Act, 1894, and the principles set out in sub-section (1) and in clause (a) of sub-section (2) of Section 7 of this Act, shall, so far as they may be applicable, apply in respect of any reference made to the Court under sub-section (1)." "28A. Re-determination of the amount of compensation on the basis of the award of the Court. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court; Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the person interested and giving them a reasonable opportunity of being heard, and made an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18." 7. Sub-section (1) of Section 8 of Act II of 1948 postulates that where any person felt aggrieved by an award made under Section 7 (2) of the said Act or clause (ii) of sub-section (4)'of Section 7 of the said Act, may make an application requiring the matter to be referred to the Court. 8. Sub-section (2) of Section 8 makes the provisions of Section 18 (2), Sections 19 to 22 and Sections 25 to 28A of Act I of 1894 applicable in relation to a reference made to the Court under sub-section (1). 9. 8. Sub-section (2) of Section 8 makes the provisions of Section 18 (2), Sections 19 to 22 and Sections 25 to 28A of Act I of 1894 applicable in relation to a reference made to the Court under sub-section (1). 9. By virtue of sub-section (2) of Section 8, certain provisions of Act I of 1894 is incorporated in the said Act, which does not appear to be beyond legislative competence. There is an apparent distinction between the lapse of temporary Act and the repeal of the Act. In later case, Section 6 of the General Clauses Act applies in absence of any express or implied exclusion but in former case the moment it achieved the end date, the same is effaced and recourse thereunder cannot be made. Had the temporary Act being repealed before its tenure, the position may be different. 10. Section 28A of Act I of 1894 can only be pressed in actions when the Land Acquisition Courts/Tribunal decided the reference and enhanced the compensation awarded by the Collector at the behest of another person whose land falls within the acquired Mouza. The said provision gives fresh lease of life to a person who had not applied to the Collector raising a dispute over the compensation or impugning the award. The aforesaid Section was intended to bring uniformity in the quantum of compensation to be given to all persons who stands on the equal pedestal. The Land Acquisition Court/Tribunal decided the reference at a point of time when Act II of 1948 was not alive and because of such fact whether a person can be rendered remediless. It reminds me of legal maxim 'ubi jus ibi remedium' i.e. no litigant should be rendered remediless. 11. Though technically, the person cannot take shelter under the lapsed Act yet this Court feels that such person should be provided remedy under Act I of 1894 as Section 28A thereof was made applicable by way of reference, ex debito justitiae. 12. A little background of certain events happened during the life time of Act II of 1948 is required to be remembered and narrated to understand the effects and remedies available therein. By an Amendment Act of 1994, the life of Act II of 1948 was extended till 31st March, 1997. 12. A little background of certain events happened during the life time of Act II of 1948 is required to be remembered and narrated to understand the effects and remedies available therein. By an Amendment Act of 1994, the life of Act II of 1948 was extended till 31st March, 1997. A new Section 7A was introduced by the said Amendment Act providing a time limit within which the Collector should make an award and the consequences of its default. The legislature was conscious that Act II of 1948 is due to expire on 31st March, 1997 and in order to continue with the acquisition of the requisition land, West Bengal Land (Amendment) Act, 1996 was introduced intending to incorporate sub-section (3A) and (3B) to Section 9 of Act 1 of 1894. 13. Under the aforesaid sub-section, two eventualities was conceived of, firstly, where no acquisition proceedings was initiated under Section 4 of the Act II of 1948, such proceedings can be started by issuing a notice and thereafter the compensation shall be determined by the Collector under Act I of 1894. Secondly, where a notice under Section 4(1a) of Act II of 1948 was published but the award could not be made, the acquisition proceedings can be continued by issuing a further notice and thereafter the award is to be made within the stipulated time. If those eventualities were saved by virtue of an amendment brought in 1997, it would be hardship on the person to be deprived of his statutory right which is otherwise conferred under Act I of 1894 being not available to him. 14. This Court, therefore, feels that it is such a case where the petitioner should be extended remedy and, therefore, the authority cannot deprive and deny the petitioner of his valuable right. 15. The right under Section 28A of Act I of 1894 did not ripe as the reference was pending before the LA Court and such right only accrued in the year 2002 when such reference was answered and the award was made by the Collector. If the right accrued after the lapse of Act II of 1948 it would cause injustice to the aggrieved person who wanted to be similarly treated with the person who was benefited by an award of the LA Court/Tribunal. 16. If the right accrued after the lapse of Act II of 1948 it would cause injustice to the aggrieved person who wanted to be similarly treated with the person who was benefited by an award of the LA Court/Tribunal. 16. It appears that the application filed by the father was well within the period of limitation provided under Section 28A of Act I of 1894. There is an apparent default on the part of the State in not proceeding with the said application and keeping the same in limbo for indefinite period of time. 17. This Court, therefore, directs the Collector to dispose of the said application within six weeks from the date of communication of this order in the light of the observations made hereinabove and keeping in mind the language used in Section 28A of the said Act. 18. The writ petition is thus disposed of. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties within three days from the date of communication of this order on the usual undertakings.