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2020 DIGILAW 555 (CAL)

Pankaj Kayal v. State Of West Bengal

2020-07-01

SUBRATA TALUKDAR

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JUDGMENT Subrata Talukdar, J. - The short point ventilated by the petitioner in this writ petition relates to the continuing inaction on the part of the State respondent authorities to compensate the petitioners, who invoke their title to the lands in issue through their common predecessors-in-interest, with regard to acquisition of such lands for construction of a pucca road called the Muchisha-Dighirpar Road (for short the said Road) in the District of South 24 Parganas. 2. The lands (hereinafter referred to as the said lands) comprise Plot Nos. 125, 128, 165 and 166 respectively measuring 0.30, 0.04, 0.16 and 0.290 acres. The said lands were owned by the father of the petitioner Nos. 1 and 2. The father of the petitioner No.3 was the owner of Plot No. 113 measuring about 0.46 acres (also hereinafter called the said lands). The said lands are located at Mouza- Lakhnagangadharpur, J.L. No.102, Police Station- Falta, District South 24 Parganas. 3. The petitioners through Mr. Pan, Learned Counsel, complain of the fact that although requisition for the said lands was initiated under the West Bengal Land (Requisition and Acquisition) Act, 1948 (for short Act II of 1948), such requisition bearing Case No. LA-II/I (A) of 1975-76 (for short the said LA Case) was not taken to its logical conclusion. 4. It is submitted that the possession of the said lands was taken over on 17th July, 1975 and it is not disputed that the said lands have been utilised for the purpose of construction of a permanent road. It is further submitted that although Act II of 1948 expired with effect from 31st March, 1997, the requisition and acquisition process initiated by the said LA Case was never completed. 5. It is pointed out by Mr. Pan that the first writ petition connected to the said lands, being WP No. 25532 (W) of 2006, was disposed of by the Hon''ble Court vide its order dated 13th December, 2007 by directing the Collector to conclude the acquisition proceedings within a specified period upon compliance with the requirement of Notice under Sections 9(3A) or 9(3B) of the Land Acquisition Act, 1894 (for short Act I of 1894). 6. 6. It is submitted that on 14th March, 2008 the petitioners appeared at a hearing pursuant to a notice from the concerned respondent authority dated 29th February, 2008 issued under Section 9(3B) of Act I. It is further submitted that for the first time at the hearing on 14th March, 2008, the petitioners were informed that the said lands were ultimately acquired under Act II pursuant to a Notice under Section 4 (1A) of Act II. Such Notice was dated 14th May, 1985. 7. The petitioners complain of the fact that the Notice under Section 4 (1A) of Act II dated 14th May, 1985 stood lapsed on 31st March, 1995 apropo the provisions of Section 7(A) of Act II. However, the concerned respondent authority refused to withdraw and/or rescind their action qua the Notice under Section 4 (1A) and hence this writ petition. 8. The petitioners submit that with the promulgation of the Land Acquisition (West Bengal Amendment) Act, 1997 (for short the Amendment Act of 1997) coming into effect from 1st April, 1997, all notices under Section 4 (1A) of Act II issued prior to 31st March, 1992, as in the present case and in respect of such notices no Award having been passed by 31st March, 1995, such notices stood lapsed by force of the Amendment Act of 1997. 9. It is submitted that the Notice under Section 9 (3B) of the Amendment Act 1997 dated 28th of February, 2008 cannot be sustained in the eyes of law since the notice under Section 4 (1A) of Act II lapsed on 31st March, 1995 and, in view of the provisions of Section 7A of Act II, no further Notice under Section 9 (3B) of the Amendment Act of 1997 could be issued. The petitioner''s arguments rest on the fact that only a valid notice and, not an expired notice, can be a condition precedent for issuing a notice under Section 9 (3B) (supra). It is thus submitted that the stand taken by the concerned respondent authority at the hearing held on the 14th of March, 2008 is unworthy of acceptance. The petitioners accordingly pray that the notice under Section 9 (3B) dated 28th February, 2008 (Annexure P4 to the writ petition) as well as the further notices also (marked Annexure P4 to the writ petition) be quashed. 10. Appearing for the State respondents, Mr. The petitioners accordingly pray that the notice under Section 9 (3B) dated 28th February, 2008 (Annexure P4 to the writ petition) as well as the further notices also (marked Annexure P4 to the writ petition) be quashed. 10. Appearing for the State respondents, Mr. Mahato, Learned Counsel, argues that no cause of action survives in this writ petition. It is submitted by Learned State Counsel that the order of the Hon''ble Court dated 13th December, 2007 in the first writ petition has been complied with by the respondents by issuing the notice under Section 9 (3B). Learned State Counsel submits that in view of the subsistence of the interim order granted by the Hon''ble Court in this writ petition staying all further proceedings in the said LA Case pending before the Collector, the State respondents were restrained from taking any other or further steps except to comply with the solemn order dated 13th December, 2007, which they have duly done. 11. In support of his arguments Mr. Mahato relies upon the authority of 2018 (3) SCC 412 at Paragraph 155. 12. Per contra, Mr. Pan, Learned Counsel, has relied upon the following legal authorities:- "2002 (1) SLT (High Court) 278; 2011 (3) CHN (Cal)-(FB) 555 and 2014 (4) WBLR (Cal) 996." 13. On the strength of the above authorities and particularly 2014 (4) WBLR (Cal) 996 at Paragraph 27 thereof, Learned Counsel for the petitioners points out that in view of the permanent utilisation of the said lands and the expiry of all the then applicable land laws on the moment this writ petition is being finally adjudicated, the compensation be now calculated and paid by applying the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the 2013 Act). 14. 14. Having heard the parties and considering the materials placed it would be apropo to this discussion to extract the relevant portion of the order dated 13th December, 2007 which, inter alia, reads as follows:- "In view of the above-noted situation, I dispose of the writ petition ordering that after issuing the requisite notice under S. 9(3A) or 9(3B) as the case may be (such notice shall be issued at once), and after following the procedures according to the provisions of the Land Acquisition Act, 1894, the Collector shall conclude the acquisition proceedings within a period of six months from the date of communication of this order to him. Within that period of Collector shall make and declare the award and tender the amount of compensation to the person or persons in whose favour the award will be made. There shall be no order for costs." 15. The order dated 13th December, 2007 has attained finality and the petitioners, as well as the State respondents accepted the position that it would be open to the Collector to conclude the acquisition proceedings within a period of six months from the date of communication of the order (dated 13th December, 2007) by issuing a notice under Section 9 (3A) or 9 (3B), as the case may be and thereafter following the procedure according to the provisions of Act I. 16. It is factually accepted by Learned State Counsel that the period of six months, as specified by the order dated 13th December, 2007, was complied with by the State respondents and the notice under Section 9 (3B) was issued on 29th February, 2008. It is also a factually accepted position that the petitioners appeared for the hearing before the Authority on 14th March, 2008. 17. The petitioners claim to have been first informed of the publication of the notice under Section 4 (1A) of Act II of 1948 on 14th May, 1985 by the notice under Section 9 (3B) dated 29th February, 2008. At this juncture it would be useful for this discussion to reproduce the interim order in this writ petition dated the 2nd of April, 2008 which reads as follows:- "02.04.08 W.P. No.5763 (W) of 2008 Pankaj Kayal & Ors. Versus State of West Bengal & Ors. The petitioners are questioning the s.9(3B) notices issued by the Collector in connection with the pending land acquisition case. Versus State of West Bengal & Ors. The petitioners are questioning the s.9(3B) notices issued by the Collector in connection with the pending land acquisition case. Their case is that on the facts of the case the Collector should have issued notices under s. 9(3A). It is submitted by counsel for the respondents that in view of order made by this court in the previous writ petition filed by the petitioners the Collector is to make the award within six months from the date the s. 9(3B) notices have been issued. It seems to me that the respondents should be called upon to file affidavit. In view of the situation I think it will be appropriate to make an interim order staying all further proceedings pending before the collector. For these reasons, I admit the writ petition and order that during its pendency the Collector shall not take any further step on the basis of the impugned s. 9(3B) notices. The respondents shall file opposition within five weeks; reply, if any, shall be filed by one week thereafter. This order shall be communicated to the respondents within a week and affidavit of service showing compliance shall be filed at the time of final hearing. List the writ petition for final hearing after seven weeks. Urgent certified Xerox copy of this order shall be supplied to the parties, if applied for, within three days ffrom the date of receipt of the file by the section connected." 18. From the interim order dated 2nd of April, 2008, which is claimed to be subsisting till date, there is force in the submission of Learned State Counsel that the authority could not have proceeded further on the issue. From the interim order dated 2nd of April, 2008 it can be also gathered that the petitioner upon first coming to know of the notice dated 14th May, 1985 under Section 4 (1A) of Act II of 1948 filed this writ petition questioning the Section 9 (3B) notice but, accepted the legal position that in the facts of the present case the Collector ought to have issued a Notice under Section 9 (3A). 19. The argument of the petitioners today is that since both Act I of 1894 and Act II of 1948 have lapsed during the pendency of this writ petition, the petitioners now deserve to be compensated under the 2013 Act. 19. The argument of the petitioners today is that since both Act I of 1894 and Act II of 1948 have lapsed during the pendency of this writ petition, the petitioners now deserve to be compensated under the 2013 Act. To the mind of this Court, the position of the petitioners through their arguments has widely shifted from the first writ petition read with its final order to the interim order in the present writ petition and to now. Justifiably however, while there is merit in the stand taken by Learned State Counsel that the final order in the first writ petition dated 13th December, 2007 (supra) has been acted upon by both the parties, at the same time notwithstanding the niceties of law involved in adjudicating the validity of the notice under Section 9 (3B) or, the propriety of a notice under Section 9 (3A), the foundations on which the said notices are founded, i.e. Act I of 1894 and Act II of 1948, stand long expired at the moment of the present adjudication. 20. Accordingly, the Special LA Collector District, South 24-Parganas the Respondent No.2 is directed to take steps to calculate and disburse compensation to the petitioners by applying the 2013 Act, preferably within a period of 16 (Sixteen) weeks from the date of communication of this order. 21. There will be no order as to costs. 22. W.P. No. 5763 (W) of 2008 stands thus disposed of. 23. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.