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2019 DIGILAW 490 (CAL)

Deb Kumar Mukherjee v. State of West Bengal

2019-04-16

PROTIK PRAKASH BANERJEE

body2019
JUDGMENT : 1. Four writ petitions have come before this Court involving similar facts and circumstances and thus, the same point of law. I therefore heard the writ petitions together and intended to pass a common judgment which would have governed all of them. After completing the judgments, however, the matter was mentioned before me on April 11, 2019 by the common learned advocate for the writ petitioners appearing in all the cases. He apprised me of the death of the writ petitioner in WP No.20536 (W) Of 2012 even before I had heard the cases. Accordingly, I direct that WP No.20536 (W) of 2012 be delisted and a separate order be recorded therein, allowing steps to be taken in accordance with law, if so advised. A photocopy of this order shall be retained in the file of WP No.20537(W) of 2012 and WP No.20538 (W) of 2012. Therefore, the present judgment will govern only the present WP No.20533 (W) of 2012 and also WP No.20537 (W) of 2012 and WP No.20538 (W) of 2012. In each of the writ petitions, the order dated May 12, 2012 passed by the respondent no. 6, the General Manager of the Satgram Area of the respondent no. 4 has been challenged. In each of the writ petitions a prayer has been made for appointment of the concerned writ petitioner as a land loser (spelt "land looser" in the petitions). A copy of this order countersigned by the court officer shall be retained in the files of the said other three writ petitions. 2. By the said order dated May 12, 2012 the claims of all the four petitioners in the respective writ petitions for employment under the respondent no. 4 was rejected on the sole ground that the lands in question were "divested/transferred after the date of acquisition by ECL, so it is not legal. It is further mentioned that there is no relationship between land owner and the land losers which is the prime criteria for employment under land loser scheme. Hence the offering employment under land loser scheme in the instant case is not maintainable as per the Co.'s guidelines. Therefore, the employment claim of the above petitioners is rejected." 3. It is further mentioned that there is no relationship between land owner and the land losers which is the prime criteria for employment under land loser scheme. Hence the offering employment under land loser scheme in the instant case is not maintainable as per the Co.'s guidelines. Therefore, the employment claim of the above petitioners is rejected." 3. It is not in dispute that the lands in question belonged to one Narayandas Bandyopdhyay who transferred it by registered instruments to Deb Kumar Mukherjee on December 16, 1981, Satyajit Bandyopadhyay on December 11, 1981, and to Sk. Imadul Haque and Ajit Kumar Mondal by two several deeds dated December 14, 1981. It is also not in dispute that Deb Kumar Mukherjee was the beneficiary of a further 2.08 acres of land under a probated will of the said Narayandas Bandyopadhyay making him the owner of 3.08 acres of land after adding the 1 acre purchased by him as above. 4. What the respondents no.4 and 6 have contended is that they got the possession certificate in respect of the concerned lands in Mouza Salchurafrom the Land Acquisition Collector, Bankura, pursuant to a requisition under Act II of 1948 on December 4, 1981. This is Annexure R/2 to each affidavit-in-opposition. It clearly states that this is pursuant to the ACT II Case No.17/81-82 for the "purpose of acquisition of land for Kalidapur Coal Project." The respondents No.4 and 6 have admitted that this requisition was for the purpose of mining activities, at paragraph 3d of the affidavit-in-opposition, for which the respondent no. 1 had initiated acquisition proceedings, being LA Case No.7/80-81 and LA Case No.17/1981-82. They rely upon this certificate to allege that once they got possession pursuant to the proceedings in the said acquisition case, the property vested in the respondent no. 4, and any transfer after that date (December 4, 1981) was "post-vesting" and thus did not confer any title on the transferee. 5. They rely upon this certificate to allege that once they got possession pursuant to the proceedings in the said acquisition case, the property vested in the respondent no. 4, and any transfer after that date (December 4, 1981) was "post-vesting" and thus did not confer any title on the transferee. 5. It is tragic that even in 2019, such a submission was made with a straight face before this Court which shows complete ignorance of the law of the land and the provisions of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948) and when acquisition was complete under the said Act, not merely on the part of the respondent authorities of the Eastern Coalfields Limited, but also their drafting advocate and legal advisors. 6. In order to cut this sorry story short, I think the best course would be to quote the provisions of Sections 3 and 4 of the said Act II of 1948. Section 3: Power to requisition.- (1) If the State Government is of the opinion that it is necessary so to do for maintaining supplies and services essential to the life of the community or for increasing employment opportunities for the people by establishing commercial estates and industrial estates in different areas or for providing proper facilities for transport, communication, irrigation or drainage, or for the creation of better living conditions in rural or urban areas, not being an industrial or other area excluded by the State Government by a notification in this behalf, by the construction or reconstruction of dwelling places in such areas or for purposes connected therewith or incidental thereto, the State Government may, by order in writing, requisition any land and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning: Provided that no land used for the purpose of religious worship or used by an educational or charitable institution shall be requisitioned under this section. (1A) A Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta when authorised by the State Government in this behalf, may exercise within his Jurisdiction the powers conferred by sub-section (1). (1A) A Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta when authorised by the State Government in this behalf, may exercise within his Jurisdiction the powers conferred by sub-section (1). (2) An order under sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier, not being the owner of the land, also on such occupier. (3) If any person fails to comply with an order made under sub-section (1), the Collector or any person authorised by him in writing in this behalf shall execute the order in such manner as he considers expedient and may,- (a) if he is a Magistrate, enforce the delivery of possession of the land in respect of which the order has been made to himself, or (b) if he is not a Magistrate, apply to a Magistrate or, in Calcutta as defined in clause (11) of section 5 of the Calcutta Municipal Act, 1951, to the Commissioner of Police, and such Magistrate or Com-missioner, as the case may be, shall enforce the delivery of possession of such land to him.". This of course, was repealed by Act 14 of 1994 with effect from April 1, 1994. Section 4:Acquisition of land 1(1) Where any land has been requisitioned under section 3, the State Government may use or deal with such land for any of the purposes referred to in sub-section (1) of section 3 as may appear to it to be expedient. 2(la) The State Government may acquire any land requisitioned under section 3 by publishing a notice in the Official Gazette that such land is required for a public purpose referred to in sub-section (1) of section 3. (2) Where a notice as aforesaid is published in the Official Gazette, the requisitioned land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the 3[State] Government free from all in cumbrances and the period of requisition of such land shall end. 7. Thus, it is clear, on the face of the statute, that the land vested in the State of West Bengal under Act II of 1948 from the date of publication in the Official Gazette of the notice under Section 4(1) of the said Act but not before that date. 7. Thus, it is clear, on the face of the statute, that the land vested in the State of West Bengal under Act II of 1948 from the date of publication in the Official Gazette of the notice under Section 4(1) of the said Act but not before that date. Unlike Act 1 of 1894, here possession of the land was not the starting point of vesting, but publication of a Gazette Notification of the acquisition notice under Section 4(1) by virtue of Section 4(1a) of Act II of 1948. 8. In the instant case, the writ petitioners have all disclosed at Annexure P/3 the notice under Section 5(3) of Act II of 1948 where the respondent no. 1 has admitted, as the acquiring authority, that the Gazette Notification of the notice dated August 26, 1983 for acquisition, was published on September 5, 1983. However, in the order impugned the respondent no. 6 has accepted that all the acquisitions were under the self-same LA Case No.7/1980-81 and LA Case No.17/1981-82 including expressly the land in respect of which WP No.20536 (W) of 2012 had also been filed. Thus, even that is on the same footing as that of the other petitioners. 9. Once the respondent no. 1 has admitted that the acquisition was pursuant to a notification published in the Official Gazette only on September 5, 1983, of a notice dated August 26, 1983, it is clear that the land vested in the State of West Bengal only on and from September 5, 1983. If the land vested in the State of West Bengal on September 5, 1983, then the title of the land still remained with Narayandas Bandyopadhyay prior to that date, including the dates on which he executed registered deeds in favour of the writ petitioners. Mere delivery of possession by the respondent no.1 through its authority to the respondent no. 4 on December 4, 1981, did not divest the transferor of his title under Act II of 1948. In fact, the status of the writ petitioners as landlosers, as also certified by the respondent no. 3, which is disclosed in the writ petitions, is unassailable. Since the respondent no. 1 itself acquired title to the said lands only on September 5, 1983, it could not have transferred title to the respondent no. 4 before that date - it could only transfer possession, which it did. 10. 3, which is disclosed in the writ petitions, is unassailable. Since the respondent no. 1 itself acquired title to the said lands only on September 5, 1983, it could not have transferred title to the respondent no. 4 before that date - it could only transfer possession, which it did. 10. Despite the aforesaid position on facts and in law, the respondents no.4 to 7, in their affidavit-in-opposition have alleged at paragraph 3l that the transfer of the land was effected after the date of acquisition and have alleged that the acquisition proceedings had started in the year 1980 and possession of the land was handed over by 4th December, 1981. They have not been able to show if the land was not acquired under Section 4 of Act II of 1948, then under what law it was. Such allegation as in paragraph 3l and denial as in paragraph 5 as the reason for refusal of the claim of the writ petitioner to obtain employment under the land loser scheme in paragraph 3o of the affidavit-in-opposition is therefore not only misconceived, but frivolous and shows an arrogance and ignorance of law for which the writ petitioners had to move this Court time and again. 11. At the risk of repeating a clich, requisition is like obtaining an enforced tenancy from the owner of property -it preserves title while obtaining possession. It is only when an acquisition is resorted to - in this case under section 4 of Act II of 1948 as it then was - that the title vests in the acquiring authority and thus to anyone it chooses to transfer it to, in turn. Delivery of possession, in the context of Act II of 1948, particularly when it is pursuant to requisition, and before the notice of acquisition is published in the Official Gazette, is irrelevant to determine when the land vests in the State of West Bengal or for that matter, the person to whom it delivered possession. 12. In such view of the matter, the order dated May 12, 2012 represents a decision where the decision-making process is fatally flawed by being contrary to Section 4(1a) of Act II of 1948 under which vesting occurred and it is clear that it was rendered contrary to the materials on record, including the date when the acquisition occurred, and is thus perverse within the meaning of law. It cannot therefore be sustained and is therefore quashed. In addition, since this was the only reason for denying employment to the writ petitioners, and since the respondent no. 6 has not recorded a finding that the writ petitioners or any of them was otherwise ineligible to be employed as a land-loser under the respondent no. 4's land-loser scheme, there shall also be a direction on the respondents to give appointment to the writ petitioners in the land-loser category according to the respondent no. 4's land loser scheme within a period of four weeks from the date of communication of this order. 13. I was tempted to impose costs upon the respondents no.4 to 7 for their act in depriving the writ petitioners of both their land and livelihood by ignoring the statute under which the acquisition was made, but Mr. Majumder, learned Counsel appearing for the respondents no.4 to 7 pointed out that the notice to the writ petitioners to accept compensation had been issued under Section 12(2) of Act 1 of 1894 and thus the respondent no. 6 had taken this point of acquisition having been made on the date that the possession has been handed over in terms of Section 16 of Act I of 1894. I find that under Section 7(2)(aa)(ii) of Act II of 1948, the notice to be issued by the Collector to the persons interested in the land has been explained by the Explanation to Section 8(2) of Act II of 1948 to be deemed to be a notice under Section 12(2) of Act I of 1894. In such view of the matter the reason for the assumption as submitted by Mr. Majumder cannot arise. Once again it seems that the provisions of Act II of 1948 was not looked into by any of the persons concerned or their learned advocates, neither in 2012 nor when drafting the affidavit-in-opposition and not even when arguing the matter. Having said that, and appreciating that one can hardly blame the respondents no.4 to 7 when even their learned advocates appeared to know no better, I content myself by allowing the writ petitions as above, without imposing any order as to costs.