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2018 DIGILAW 882 (CAL)

Naihati Municipality v. Tarun Mukherjee

2018-12-04

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. Let the report in the form of an affidavit filed in Court today on behalf of the State be taken on record. 2. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 3. The instant appeal arises out of a judgment and order dated 18th July, 2018, passed by a learned Single Judge in W. P. 9640 (W) of 2016 (Sri Tarun Mukherjee & Ors. vs. State of West Bengal & Ors.). 4. By the impugned judgment and order, the learned Single Judge has been pleased to dispose of the writ petition as follows:- "An acquisition proceeding of land belonging to the predecessor-in interest of the petitioners was started, challenged, quashed and carried to the Supreme Court where the orders of this court sitting singly as also the Division Bench were set aside and the writ petition challenging acquisition was dismissed. The State of West Bengal has filed a report in court as recorded by an order dated August 24, 2016 which is however not found in the record, but a copy of it has been shown by learned advocate for the petitioners. Learned advocate for the petitioners shall make a copy this report for being retained with the records. He has also filed an exception to the report. From the records it is clear that the State accepts that the writ petitioners were not satisfied with the amount of compensation and sought reference but cannot inform the court about the particulars of the reference application or the status of the said reference application. The writ petitioners do not know the fate of the application for reference under section 18 of the 1894 Act. Because the State misplaced the records, the writ petitioners' statutory right to remedy cannot be taken away. In such view of the matter, the State cannot sit tight over the question of compensation. Let the compensation assessed by the State to be paid to the writ petitioners, if not already paid, without prejudice to the respective rights and contentions of the writ petitioners. In such view of the matter, the State cannot sit tight over the question of compensation. Let the compensation assessed by the State to be paid to the writ petitioners, if not already paid, without prejudice to the respective rights and contentions of the writ petitioners. Inasmuch as the State is not in a position to give the particulars of the reference case and does not know the particulars either, I appoint the Hon'ble Justice Jayanta Kumar Biswas (Retd.), a retired Judge as special referee to decide the question of compensation to be paid to the petitioners at a remuneration of Rs.50,000 to be paid in equal shares by the petitioners and the municipality. The writ petitioners and the State and the municipality shall be entitled to produce all the documents before the learned special referee on the date fixed by the special referee with notice to all sides. In the event the special referee chooses to enhance the compensation that shall be deemed to be the compensation payable under section 18 of the 1894 Act. The entire proceedings shall be completed by the special referee within a period of three months from documents being submitted before him. The compensation already assessed by the State shall be paid to the writ petitioners within a period of one months from the date of communication of this order which the parties shall accept without prejudice subject to the result of the writ petition before the special referee. The writ petition is accordingly allowed. No costs." 5. The present appeal has been preferred by the concerned municipality, namely, Naihati Municipality. The main grounds for preferring of the appeal appear to be that the learned Single Judge has erred in law and in facts in the circumstances of the present case while allowing the writ petition on a misconception of law inasmuch as the learned Single Judge had failed to apply the settled provisions of law and proper legal tests. One of the other grounds appears to be that the learned Single Judge erred in law and in facts in the circumstances of the present case while appointing a Special Referee in order to decide the reference case and thereby failed to consider the factual matrix of the case in its true perspective. One of the other grounds appears to be that the learned Single Judge erred in law and in facts in the circumstances of the present case while appointing a Special Referee in order to decide the reference case and thereby failed to consider the factual matrix of the case in its true perspective. It has also been contended on behalf of the appellant that there was no provision in the statute for appointing any Special Referee with regard to any dispute relating to acquisition of plot and compensation to be paid, which is required to be decided by the Reference Court. The other ground which appears to have been taken by the appellant is that the acquisition of the landing-question was under the provision of the Land Acquisition Act, 1894, whereas the respondents/writ petitioners have claimed compensation under the Right to Fair Compensation and Trnasparency and Resettlement Act, 2013. According to the appellant, the learned Single Judge ought to have directed reconstruction of the Reference Case, which had been filed under section 18 of the 1894 Act, instead of appointing a Special Referee. 6. We had earlier directed the State to file a report in the form of an affidavit stating therein specifically as to where the reference application which was filed under section 18 of the 1894 Act, is presently lying. 7. The answer appears to be in the report in the form of an affidavit filed in Court today, relevant portion whereof set out hereinbelow:- "On scrutiny of available records at this Office, it is evident, that, the 'Awards' and 'Payments' relates to 1978, when the District of 24-Parganas remained undivided, with it's Head Quarters at Alipore. However, the 'Award List' prepared in favour of instant litigants, including the Legal Heirs of the original litigants, are found to include notings of 'Reference Petitions' filed by Smt. Chinmoyee Debi and Smt. Santi Rani Debi, being Reference Nos. 86 & 87 of 1978-79. On scrutiny of available records, which were transferred from the erstwhile undivided District of 24 Parganas to this North District in 1986, the fate of the said Reference Petitions could not be ascertained due to it's non-availability. The most probable event which could have taken place, was, that, after the demise of Chinmoyee Debi and Santi Rani Debi, the successors-in-interest were not substituted properly. The most probable event which could have taken place, was, that, after the demise of Chinmoyee Debi and Santi Rani Debi, the successors-in-interest were not substituted properly. Hence, it is palpably comprehensible, that, the present Petitioners, all sons of Late Joydeb Mukherjee, must be well aware of the fate of the said Reference Petitions filed at the District Court, Alipore, and should ventilate the precise status of the same to the Hon'ble High Court in their own interest. However, if the instant Petitioners do possess any 'Order for Enhancement of Compensation' by the LA Judge, Alipore, the same might be considered on a priority basis by this Office, if approached. Fact remains that, no such approach had been preferred by the instant Petitioners with relevant Documents till date before the LA Collector, North 24-Parganas to warrant any salutary action at this end. However, the said solicitation never posed as an impediment to the prospect of the instant matter, since, it is quite evident from the Notices issued u/s 12(2) of Act-I of 1894 to the potential 'Awardees', duly proves the awareness of the 'Predecessor-in-interest' of the instant litigants about the compensation payable. The said Notices were served between 18.02.1978 and 20.02.1978, which means that the predecessor 'Awardees' were duly knowledgeable about the 'Award' at least since 20.12.1978. However, the instant litigants, being, the Legal Heirs of the 'Predecessor Awardees' preferred a suit, being C. R. No.2030 (W) of 1978 in the Hon'ble High Court, which was ultimately elevated to the Division Bench. The said Division Bench headed by Justice Chittatosh Mukherjee delivered a Judgement dated 26.07.1979 which aggrieved the Requiring Body, i.e. Naihati Municipality, wherein, the Notice and Declaration u/s 4 & 6 of ActI of 1894 was quashed and declared void. Thereafter, the said Municipality filed SLP before the Hon'ble Supreme Court of India, wherein, the Bench comprising of Justice K. Ramaswamy and Justice G. B. Pattanaik, quashed the High Court Order dated 26.07.1979 in C. A. No.3841 of 1983 on 06.08.1996, setting aside the same and dismissing the Writ Petition altogether. Soon after disposal of SLP (CA No.3841 of 1983), in affirming the 'Acquisition Proceeding' 'Possession' of the Acquired Land, with an area of 0.3903 acres were delivered to the Requiring Body on 11.02.1997 for placement of Howkers' Corner, comprised in RS Plot Nos. Soon after disposal of SLP (CA No.3841 of 1983), in affirming the 'Acquisition Proceeding' 'Possession' of the Acquired Land, with an area of 0.3903 acres were delivered to the Requiring Body on 11.02.1997 for placement of Howkers' Corner, comprised in RS Plot Nos. 413, 414, 416, 417, 419, 420, 423, 497, 419/2405, 420/2407, 421, 424, 426 and 420/2406." 8. There are two issues which require consideration by this Court. The first is, whether the learned Single Judge could have disposed of the writ petition with a direction for appointment of a retired Judge of this Court as a Special Referee to decide the question of compensation to be paid to the writ petitioners at a remuneration of Rs.50,000/- to be paid in equal shares by the petitioners and the municipality, in the absence of any statutory provision in this regard. 9. The answer to the first issue is that there is no statutory provision which allows determination of compensation by a Special Referee. Rather, the statute makes it clear that it has to be done by Reference Court and in the facts of the instant case we notice that two reference applications are pending. 10. The other issue is whether in the facts and circumstances of the instant case there is any scope of enhancement of compensation as directed by the learned Single Judge. 11. The answer to this issue is clearly in the negative. The reason is, the predecessors-in-interest of the respondents/writ petitioners challenged the award of compensation by preferring two reference applications, decades ago. The fate of the two reference applications, however, is not known since the records are not traceable. Whether the two reference applications were made within time or beyond also cannot be ascertained. 12. The other fact which also cannot be determined by the writ Court is with regard to the respondents/writ petitioners claiming to be the legal heirs of the deceased awardees. This can only be decided by the competent Court. In the facts of the instant case it is the Reference Court where the two reference applications are pending. 13. In such facts and circumstances as stated above, we are of the view that the impugned judgment and order passed by the learned Single Judge cannot be sustained and is liable to be set aside and is accordingly set aside. 14. 13. In such facts and circumstances as stated above, we are of the view that the impugned judgment and order passed by the learned Single Judge cannot be sustained and is liable to be set aside and is accordingly set aside. 14. We direct the concerned authority of the State, namely, the Special Land Acquisition Officer, South 24-Parganas, Alipore, to take immediate steps to trace out the records relating to the two Reference Petition Nos.86 and 87 of 1978-79 filed by Smt. Chinmoyee Debi, wife of Balaram Mukherjee and Santi Rani Debi, wife of Krishna Kishore Mukherjee respectively, in the light of the contents of a memo dated 26th November, 2018, issued by the Special Land Acquisition Officer, North 24-Parganas, a copy whereof was handed over to the Court by the learned advocate for the State, while this judgment was being dictated. The records would either be in Alipore, South 24-Parganas or in North 24-Parganas. In order to facilitate tracing out the two missing records, we also direct the Special Land Acquisition Officer, North 24-Parganas, to render full cooperation in the matter. Once the records are traced, further steps can be taken by the parties in accordance with law. The respondents/writ petitioner, who claim to be the legal heirs of the original awardees, are directed to render full cooperation to the Special Land Acquisition Officer, South 24-Parganas, Alipore, as well as the Special Land Acquisition Officer, North 24-Parganas, in order to help the two authorities to trace out the records which will enure to their own interest. Although, we do not fix any timframe for compliance of the above direction, it is expected that the authorities will ensure that the missing records are traced as expeditiously as possible, preferably within a period of three month from this date. 15. The appeal and the application for stay stand disposed of accordingly. 16. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Arindam Mukherjee, J.- I agree.