Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 66 (CAL)

Nasiruddin Ahmed v. State of West Bengal

2018-01-09

MIR DARA SHEKO

body2018
JUDGMENT : 1. Heard Mr. Bhattacharya, learned counsel being assisted by Mr. Yasin Ali, learned counsel representing the writ petitioner. Though State of West Bengal remains unrepresented, but Mr. Dipak Mukherjee, learned counsel representing the respondent-BSNL authority is present. The matter is now taken up for delivery of judgment. 2. On perusal of the materials on record including affidavit-in-opposition and affidavit-in-reply thereto, it reveals that the writ petitioner was the owner of plot no. 690 of Khatian no. 416/2 under J.L. no. 86 within Mouza Latifpur, district Howrah. Mr. Bhattacharya submitted that the Calcutta Telephones being requiring body requisitioned 46 decimals of said plot and accordingly it was acquired under L.A. Case no. 15 of 1987-88 initiated under Act II of 1948 on 6th April, 1988. Admittedly, possession of said land was taken by L.A. Collector on 18th April, 1988 without payment of award. At that juncture the writ petitioner in the Original Side filed a writ petition, being W.P. No. 4122 of 1988, which was dismissed, since the writ petitioner wrongly mentioned the number of plot. Mr. Bhattacharya however apprised the Court that against said dismissal order the writ petitioner did not proceed further. 3. Mr. Bhattacharya further submitted that the writ petitioner filed another writ petition, being W.P. No. 10985(W) of 1999 since no award was passed despite submission of representation, and, this Court disposed of said writ petition on 13th June, 1999 with direction upon the concerned L.A. Collector to consider the representation. In turn, the L.A. Collector, Howrah by Memo no. 1177(2)LA(G) dated 24th August, 1999 in compliance to the order of this Court, disposed of the matter on 6th September, 1999. In turn, the L.A. Collector, Howrah by Memo no. 1177(2)LA(G) dated 24th August, 1999 in compliance to the order of this Court, disposed of the matter on 6th September, 1999. For future reference and for convenience of discussion hereafter, the operative portion of the order of the L.A. Collector is set out: “Considering all arguments, the statement and procedure, papers and documents of all concerned parties, the writ application in respect of Annexure I, J, K, this is to order that the petitioner is entitled to get requisition compensation at the rate of 6% over market value of land from the date of possession up to the date of restoration by switching over the L.A. proceeding under the Amendment Act, 1996 and the requiring body is hereby ordered to state either their submission of fresh proposal of acquisition alleged land under the Amendment Act, 1997, if they require the same at present or initiate proposal for the de-requisition of the said plot in accordance with law by giving back for possession of the land to the petitioner within a considerable period after giving proper requisition compensation and the prayers of the petitioners as stated in annexures are hereby allowed. As concerned parties are requested to take necessary measure for immediate relief of the writ petitioner in respect of getting compensation in accordance with law, this order is declared by the undersigned in presence of all concerned parties and they are entitled to get copy of the same as per their proper requisition.” 4. Mr. Bhattacharya further submitted that despite such reasoned order passed by L.A. Collector, the relief of the writ petitioner having remained unattended, for which again he had to move the writ petition, being W.P. No. 20989(W) of 2000 and in that occasion this Court disposing of said writ petition on 15th January, 2001 directed the concerned L.A. Collector to take necessary steps to award money and in turn, to pay the same to the writ petitioner within the stipulated period. In the order dated 15th January, 2001 it was also indicated, “if the Union of India for the purpose of which the acquisition notice was issued and the possession has been taken by the L.A. Collector, the L.A. Collector would take necessary steps.” 5. During course of hearing, Mr. In the order dated 15th January, 2001 it was also indicated, “if the Union of India for the purpose of which the acquisition notice was issued and the possession has been taken by the L.A. Collector, the L.A. Collector would take necessary steps.” 5. During course of hearing, Mr. Mukherjee, learned counsel representing the Calcutta Telephones apprised the Court that the department already took possession of that requisitioned land for taking necessary steps of their part and the department also placed fund for the same. 6. Mr. Bhattacharya inviting attention of this Court to the Gazette Notification dated 27th September, 1993 submitted that so far as acquisition of the plot of land belonging to the writ petitioner the proceeding was started under Act II of 1948 for the purpose of construction of Telephone Exchange Tower and inviting also attention to the form of notice issued under Section 12(2) of the Act I of 1894, submitted that although the award was assessed at the time to the tune of Rs. 1,00,932/-, but it was never paid to the writ petitioner despite several persuasions and submission of representations. 7. Mr. Mukherjee pointed out that in the month of November, 2002 there was a letter addressed to the L.A. Collector, Howrah by the writ petitioner by which he had declined to accept and withdraw the amount awarded by way of compensation, against which, of course, Mr. Bhattacharya reiterated that it was not accepted due to pendency of the instant writ petition. 8. Be that as it may, from the facts and circumstances of the case on hand it appears that though the L.A. Case no. 15/1987-88 was initiated under Act II by the L.A. Collector, Howrah for acquisition of the land measuring 46 decimals appertaining to plot no. 690 belonging to the writ petitioner to sub-serve the requisition of the requiring body of the Calcutta Telephones and in effect it was handed over to the requiring body after taking over possession, but such proceeding could not be held to be complete, since the award money was not assessed within the stipulated period after initiation of the L.A. proceeding vis-à-vis handing over or depositing the award money, so that the said L.A. proceeding could have been deemed as complete in the eye of law, and, Section 7A of the Act II of 1948 may be relevant to refer to justify the above observation. In further scrutiny of the materials on record, as it has also been pointed out by Mr. Bhattacharya, that the subsequent pro forma notice dated 19th April, 2001 under sub-sections 3(A) and 3(B) of Section 9 of the Land Acquisition (West Bengal Amendment) Act, 1997 was issued to show that said L.A. proceeding was converted under Act I of 1894, presumably for the reason that the proceeding of the Act II of 1948 could not be made complete within the stipulated period. 9. The grievance is that despite order dated 6th September, 1999 passed by the L.A. Collector and also the order passed by this Court in WP 20989(W) of 2000 (supra), the L.A. Collector issued a de novo notice with reference to L.A. Case no. 15(Act II)/87-88 (West Bengal Amendment Act, 1999), asking the writ petitioner to accept the payment, if he was willing. Challenging the said notice and seeking other necessary relief, the instant writ petition has been filed for which Mr. Bhattacharya submitted that due to non-compliance of the entire proceeding of requisition and acquisition of land, the same has been lapsed by operation of law and therefore, the order should be passed either to restore the land in favour of the writ petitioner, or alternatively, to invoke the new provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 10. It has not gone out of notice that negating the relief under such new Act already there is a judgment of the Division Bench of this Court which also should be taken into consideration before passing order in this case. In the case of the State of West Bengal & Ors. –vs- Niladri Chatterjee & Ors., on the basis of the requisition of land possession was handed over some time in the year 1978 to the requiring body after publication of the notice under section 3 and gazette notification was also published under section 4(1a). In that case the requiring body did not place fund. So, payment after acquisition could not be made. The said writ petition was filed in the year 2014, whereas L.A. case was initiated in 1976-77. In that facts and circumstances of the case lis was whether compensation could be paid under the new Act, 2013. In that case the requiring body did not place fund. So, payment after acquisition could not be made. The said writ petition was filed in the year 2014, whereas L.A. case was initiated in 1976-77. In that facts and circumstances of the case lis was whether compensation could be paid under the new Act, 2013. The Division Bench held that though the proceeding of the L.A. case under Act I of 1894 was initiated in the year 1976-77 but since there was delay and laches on the part of the writ petitioner, the benefit of Sections 24 and 26 of the new Act was negated. 11. In the case on hand, the L.A. case was initiated in the year 1987-88 and since thereafter, there was persuasion by filing writ petitions, one after another, apart from representations submitted from 1988 till 2000 and lastly in the year 2001 after getting the notice dated 19th April, 2001. Therefore, the facts and circumstances as were dealt with by the Division Bench, for which delay and laches were taken note of to negate the proposed relief is not same and similar to the present case. Therefore, the case of State of West Bengal & Ors. –vs- Niladri Chatterjee & Ors. (supra) is distinguished. 12. It has been indicated already that the L.A. case which was initiated under Act II of 1948, was ultimately converted to Act I of 1894. Now, the preamble of sub-section (1) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, shortly to be called on hereafter as the Act 2013 is set out to consider as to whether the provision of such new Act will be applicable or not: “24. Land acquisition process under Act no. Land acquisition process under Act no. 1 of 1894 shall be deemed to have lapsed in certain cases – (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894) – (a)where no award under section 11 of the said Land Acquisition Act has been made, then all provisions of this Act relating to the determination of compensation shall apply; or (b) Notwithstanding anything contained in sub-section (1), incase of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act. Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. 13. Therefore, the status of the L.A. proceeding having been given under Act I of 1894 by conversion and even if it is accepted that the requiring body had deposited the assessed amount to the exchequer of the State, but since the said proceeding could not be made complete within the stipulated period again under Act I of 1894, there can be no doubt about it that by operation of law the said proceeding would have been deemed to have lost, and thereby, the provisions laid down under sections 24 and 26 of the New Act, 2013, shall be applied. 14. 14. Though in the writ petition the main relief was sought for restoration of land, but as the Court is apprised of that as per requiring body the land had already been handed over to the requiring body and the Calcutta Telephones enjoyed it’s possession for inputting its infrastructure, the writ Court should not pass any order even under Article 226 of the Constitution of India, which may make the authority impossible to pursue and comply, specially when there is alternative remedy open before the Court, by which the writ petitioner may be adequately relieved. 15. Though Mr. Bhattacharya to justify his client’s main relief relied upon the decision reported in 2013(1) CHN (Cal) 444 and 2013(1) CHN (cal) 458, but I refrained to act on the same in view of the reasons assigned above. However, the writ petition stands allowed with direction upon the respondent nos. 1, 6 and 7 to take all necessary steps in terms of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in respect of the subject plot no. 690, as referred to in the writ petition and for making the award money strictly in terms of Section 25 of the said Act, so that the writ petitioner on the self-same cause of action may not be compelled to come again to the Court for seeking relief, or alternatively, the Court may not be compelled to record any harsh order taking note of inaction against the delinquent officer responsible for non-compliance of such order. 16. Since it is a long pending matter, the entire process including payment in terms of provisions of such new Act 2013 shall be completed within a period of only 1 year from the date of communication of this order. 17. No order as to costs. 18. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.