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2023 DIGILAW 1010 (CAL)

Bishnu Kumar Chettri v. Union of India

2023-06-27

JAY SENGUPTA

body2023
JUDGMENT : Jay Sengupta, J. 1. This is an application under Article 226 of the Constitution of India, praying for a direction upon the respondent authorities to stop illegal digging or any other construction work in the land of the petitioners, to pay compensation to the petitioners for the damage caused and to restore possession of the land and in the alternative, to pay compensation to the petitioners for the land taken over at the present market value. 2. Mr. Subba, learned appearing on behalf of the petitioners, submitted as follows. The petitioner no. 1 became the owner of about 1.82 acres of land as contained in plots that were conveyed by a deed of purchase dated 19.03.2007. By a deed of gift dated 06.10.2007, some portion was then conveyed to the petitioner nos. 2 and 3. All of a sudden the petitioners found that the Army authorities were digging up their land and doing construction work there with the help of cranes and machinery without any prior notice to or consent of the petitioners. The petitioners protested and the work stopped for the time being. The valuation of the said plot was purportedly Rs. 25 lakhs at that time. In view of the above, the petitioners prayed for release of their land and if the same was found impossible because of utilisation, for compensation under the new Act of 2013 as also for the damage suffered by the petitioners in the meantime. 3. Mr. Tiwari, learned counsel for the respondent no. 5, submitted as follows. The initial road sector Damdim Gorubathan measuring 13.100 kms. was constructed by the West Bengal Public Works Department. The road sector was handed over to the Border Road Organization during October, 1968 after the heavy floods and consequent damages to the word sector. From Gorubathan to Algarh, there was a mule track. The road was improved to CL-9 specifications by the Border Road Organization after 1968. The old road Kalimpong Lahasa Trade Route via Jelepa was developed to class 9 specification upto Rishi by the West Bengal Public Works Department during 1963-1964. The road, Damdim Algarh was a vital line of communication of Army convoy during emergencies. The road was an alternative route to Gangtok and served as main line of communication of civil population of West Bengal and all parts of State Sikkim during road blocks on NH-31A (Sevoke Gangtok Road). The road, Damdim Algarh was a vital line of communication of Army convoy during emergencies. The road was an alternative route to Gangtok and served as main line of communication of civil population of West Bengal and all parts of State Sikkim during road blocks on NH-31A (Sevoke Gangtok Road). The road was very important for the national security and integrity of the Union of India and it served the purpose of effective defence. The existing land width available, i.e. road reserve land as per the register of GREF, which was a part of auditable documents, was 80 feet for the particular road from KM 0.00 to 68.00. Construction/improvement of the road Damdim Algarah Rishi from class 9 to National Highway double lane specifications was required due to increase in the volume of traffic intensity, requirements of Sikkim Government and strategic importance of China Border. The road was also used for plying to Sikkim when NH was blocked due to heavy landslide during monsoon season. The land acquisition for the improvement of road between km. 20.00 to km. 49.00 had been jointly carried out with the Land Acquisition Department, Darjeeling (West Bengal) during the year 2009. Based on the survey a proposal for acquisition of 27.86 acres of land for widening of road Damdim to Algarh, the tentative estimate amount of Rs. 2,45,17,160/-(Rupees two crores forty five lakhs seventeen thousand one hundred and sixty only) had been reimbursed and same was remitted to the office of the Collector, Darjeeling, Land Acquisition Department, Government of West Bengal vide 87 RCC letter No. 2681/24/E2 dated 19th December 2011 through Defence Cheque bearing No. K-912374 dated 15th December 2011, for further disbursement of affected land owners. In order to expedite payment to land owners, all efforts had been taken and further the correspondence made with the District Magistrate, Darjeeling. In different paragraphs of the opposition filed by the Department, it was stated that the Department showed its bonafide and approached the authority to expedite the procedure. The claim of the petitioner and factual aspect was not matching and the same was discussed in detail at paragraph no. 12 of the opposition filed by the Department. The remedy of the petitioner lay before the LA Collector and not before this Court. The claim of the petitioner and factual aspect was not matching and the same was discussed in detail at paragraph no. 12 of the opposition filed by the Department. The remedy of the petitioner lay before the LA Collector and not before this Court. The Department had already paid the compensation amount estimated by the Land Acquisition Department long back in 2011 for disbursement to the effected land owners. The Land Acquisition Collector also issued a receipt for the same. The Department had no other option than to start the work as the road was having high strategic importance due to Indo China Border Road for movements of tank, heavy vehicles etc. of Army. The Department should have completed the acquisition procedure in 2011 but due to their own mistake, the Department created this problem and at this juncture, State Government was giving proposal of direct purchase from the affected land owners and practically forcing the Department to pay again for the same land. The money was paid to the Land Acquisition Department, Government of West Bengal in 2011 as per their own calculation in terms of Act of 1984 and subsequently 2013 Act came. The money was paid from public exchequer and direct purchase would amount to great loss to the Department as well as it would be misuse of tax payers’ money. This procedure could have audit objections as the money was already paid in 2011. In 2023, the State Government ought not come up with a new proposal. 4. Mr. Bandopadhyay, learned counsel appearing on behalf of the respondent no. 6, submitted as follows. The prayer of the petitioner in the aforementioned writ application, inter alia, was for restraining the authorities from digging and making construction on the said plot of land and for issuance of mandate by this Hon’ble Court for payment of compensation. The first part of the prayer had become infractuous as a road by the BRO (Requiring Body) had already been constructed. In the affidavit-in-opposition filed by the respondent nos. 1 to 5, it was stated that the subject matter related to the widening and improvement of a road sector (Damdim to Algarah measuring about 13.100 kms.) which was initially constructed by the Public Works Department, West Bengal, and which was made over to the Border Road Organization (BRO) in 1968 and the road was improved up to Cl-9 specification by the BRO. The said road was vital line of communication of Army convoy, important for national security and as the main line of communication of the civil population to Sikkim during road blocks. The land acquisition was jointly carried out with the Land Acquisition Department, Government of West Bengal, during the year 2009 and a tentative estimated value of the said land was Rs. 2,45,17,160/-was reimbursed and remitted to the office of the Collector on 19.12.2011 and it was the duty of the Land Acquisition Collector, Darjeeling, to provide the land for construction of road and disburse the compensation to the affected land owners. No authority of the State Government was made party in the writ petition initially. It was by an Order dated 11.09.2014 passed by this Court, that the Land Acquisition Collector, Darjeeling, was added as a party respondent. According to the State respondent an initial proposal was made by the Officer Commanding of 87 Road Construction Company (RCC) of the Border Road Organization (BRO) being the Requiring Body, for widening of 27.86 acres of Damdim Algarah road was received by the office of the Land Acquisition Department, Darjeeling, on 23.12.2009 and a tentative rough estimate of the cost of acquisition was calculated as per Point No. 5(B)(IV)(iii) of G.O. No. 1702-LA-3M-07/06 dated 06.06.2006. Although the value of the said plot of land was fixed at Rs. 1,22,67,580/-but, later on, it was revalued to Rs. 2,45,17,160/-. The same amount was deposited in the PL Account of Land Acquisition Collector, Darjeeling. The proposal was required to be sent as per Section 4 of the Land Acquisition Act, 1894 for administrative approval before publication of notification and, before that, the Full Land Acquisition Plan, corresponding land acquisition maps in ammonia print, estimated cost of project, 50% of the tentative cost of acquisition, resettlement and rehabilitation package for affected families below poverty line, draft notification etc. was to be prepared. After preparation of draft notification, three major discrepancies were discovered in the draft proposal of the Border Road Organisation –(i) The area to be acquired did not tally with the alignment drawn on the provided map; (ii) Some of the plots shown on the map were not mentioned in the Land Acquisition plan; and (iii) Land Acquisition plan was prepared on the basis of Land Reforms Map but the printed mouza map furnished was not duly authenticated by the requiring body. Acquisition proceeding on the basis of a defective list would have caused immense loss to the affected persons whose rights have not been correctly reflected in the list of the Border Road Organization and they were requested on 28.12.2011 to rectify the same and resubmit the proposal as soon as possible but upto May, 2014 no revised proposal was received from the requiring body and a meeting was convened with the requiring body on 14.06.2014 and a decision was taken up for physical verification on the plots. On 18.06.2014 Joint Verification was started. On 25.06.2014 a rectified proposal was received from the requiring body, but the same also contained 5 major errors. A joint verification was completed on 02.09.2014. After the affirmation of affidavit of the District Magistrate, Darjeeling, on 15.01.2015, it was sent to the Joint Secretary, Land and Land Reforms Department for Cabinet and Administrative approval vide Memo No. 122/LA dated 04.03.2015. In the meantime, the said Act of 1894 under which the said land was to be acquired lapsed. The Assistant Secretary, Land and Land Reforms Department, Government of West Bengal, informed the District Magistrate, Darjeeling vide his Memo dated 15.07.2016 that since the Rules and Procedures under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 were yet to be notified, the requiring body might consider to go for direct purchase of land it was duly communicated to the Officer Commanding, EE(CIV), Rongli, East Sikkim, vide Memo No. 208/3/LA dated 20.07.2016. The suit plot of land was now looked after by the Officer Commanding, 87 Road Construction Company, GREF, Melli. On 25.02.2016 the Direct Purchase Policy of the State of West Bengal came into being filed separately with instructions. Initially, as stated above, the Officer Commanding, EE(CIV), Rongli, East Sikkim, vide Memo No. 208/3/LA dated 20.07.2016 was requested to purchase the land directly through the Direct Purchase Policy. Subsequently, letter was issued by the Land Acquisition Collector, Darjeeling, on 19.07.2022 as addressed to the Major Officer Commanding, 87, Road Construction Company, GREF, Melli, reiterating that the concerned office might consider for direct purchase of land after fulfilling necessary provisions filed separately with instructions. Subsequently, letter was issued by the Land Acquisition Collector, Darjeeling, on 19.07.2022 as addressed to the Major Officer Commanding, 87, Road Construction Company, GREF, Melli, reiterating that the concerned office might consider for direct purchase of land after fulfilling necessary provisions filed separately with instructions. In reply to the said letter dated 19.07.2022 the Officer Commanding sent a letter dated 19.12.2022 by stating therein that the cost of land acquisition had already been paid to the office of the Collector, Darjeeling, in the year 2011, the procedure of direct purchase could not be initiated by the Department. First of all, no land of the petitioner was ever acquired by the Government of West Bengal under any Act or Rule. Entire exercise made by the requiring body without following the provisions of the Land Acquisition Act, 1894 and all actions taken by the said requiring body are unauthorized. The said land acquisition proceeding had not been started at all the Land Acquisition Collector, Darjeeling, Government of West Bengal, in absence of administrative approval from the appropriate authority due to the non-submission of rectified acquisition proposal of the Border Road Organisation and whatever steps had taken by the Land Acquisition Collector only to protect the rights of land loosers and it was timely informed the authorities of the Border Road Organisation to rectify their mistakes. Whatever steps taken by the respondent nos. 1 to 5 were in complete violation of the Land Acquisition Act, 1894 and the Rules made there under and the said Requiring Body was solely responsible as they had done at their own risk and peril. Therefore, there were no laches on the part of the State or State respondent as far as land acquisition proceedings were concerned. Due to several discrepancies and non-submission of rectified proposal the acquisition could not be completed and in the absence of land acquisition proceeding the State Respondent was not in a position to compensate the writ petitioner. 5. Mr. Pan, learned amicus curiae, submitted as follows. The writ petitioners alleged the forcible dispossession by the respondents without any notice and accordingly, prayed for damages and restoration of possession. Apparently, as per the opposition of the respondent no. 5. Mr. Pan, learned amicus curiae, submitted as follows. The writ petitioners alleged the forcible dispossession by the respondents without any notice and accordingly, prayed for damages and restoration of possession. Apparently, as per the opposition of the respondent no. 5, all steps were being taken as per Land Acquisition Act and the existing Rules of the Government of West Bengal in respect of the land in question and compensation amount was deposited with the District Collector, Darjeeling for payment to the respective land-loosers. But, the LA Department was allegedly sitting idle and ignoring the strategic project. It was a duty of the LA Collector, Darjeeling to provide land for construction of the road and disburse the compensation to the affected land owners. But, from the report of the District Magistrate it appeared that in view of continuous noncompliance by the BRO/GREF being the Requiring Body in the matter of submission of the rectified proposal as was asked for by the District Magistrate and Land Acquisition Collector, Darjeeling, no proceeding under the provisions of Land Acquisition Act, 1894 could be initiated and all actions of the BRO/GREF were unauthorized. Admittedly, the land of the writ petitioners had been utilized by the respondents, however, without initiation of any proceeding under the Land Acquisition Act, 1894. The road had been constructed which was permanent in nature. So, all these actions taken by the BL & LRO/GREF being the Requiring Body were unauthorized. Further, the stand taken by the respondent nos. 1 to 5 in their affidavit-in-opposition that all necessary steps had been taken as per the LA Act, 1894 and the existing Rules of the Government of West Bengal and the compensation amount was deposited to the District Collector, Darjeeling for payment to the land-owners but in spite of taking any steps the LA Department were sitting idle and ignoring the strategic project in support of their illegal acts and activities, was not sustainable in the eye of law in as much as compensation was never determined upon initiating a proceeding under the LA Act, 1894 and therefore, deposit of the compensation amount with the concerned authority did not and could not arise at all. In the facts and circumstances, there was a gross violation of Articles 14, 21 and 300A of the Constitution of India. In the facts and circumstances, there was a gross violation of Articles 14, 21 and 300A of the Constitution of India. It was a clear case of depriving of property without any authority of law and accordingly, the respondents ought to be directed to initiate proceeding under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) for the purpose of determining compensation in question and payment thereof. 6. I heard the learned counsels for the parties and perused the writ petition, the affidavits, the reports and the written notes of submissions. 7. It is an admitted position that the land in question was taken over by the Requiring Body the BRO/GREF. They claimed that the land in question was required for construction and widening of road which was of immense strategic importance. They also claimed that an ad hoc compensation amount was deposited with the District Collector, Darjeeling for payment to the respective land loosers. They further alleged that LA Department of the State was sitting idle and ignoring the strategic project. This compelled them to go ahead with the construction of the road. 8. On the other hand, the report of the District Magistrate claimed that in view of the continuous non-compliance by the Requiring Body in the matter of submission of rectified proposal as asked for, no proceeding under the Land Acquisition Act 1894 could be initiated. The State goes on to term the actions of the Requiring Body in taking over such land and making construction on it as unauthorised. 9. Whoever may be responsible with for the present fiasco, it is the land owners/petitioners who have lost out for no fault of their own. In fact, it appears that both the Central and the State authorises are responsible for the imbroglio. It was not for them to sit tight over the matter for so long or to subsequently foist lame excuses of audit objection. If one is to believe the explanation of the State, the requiring body failed to come up with a rectified proposal. The authorities may fairly fight over their respective contributions to the mess, but the land losers cannot be made to suffer for this. 10. The bottom line is that the land of the petitioners were utilised by the respondents/Requiring Body without initiation of any proceeding under the Land Acquisition Act, 1894. The authorities may fairly fight over their respective contributions to the mess, but the land losers cannot be made to suffer for this. 10. The bottom line is that the land of the petitioners were utilised by the respondents/Requiring Body without initiation of any proceeding under the Land Acquisition Act, 1894. The road was constructed, which is of permanent nature. Moreover, the money deposited was only on an ad-hoc estimate. 11. In the circumstances it is abundantly clear, as pointed out by the learned amicus, that the respondents have caused gross violation of the petitioners’ rights guaranteed by Articles 14, 21 and 300A of the Constitution of India. The petitioners have been deprived of their property without due process of law. Therefore, there is no other alternative available to the respondents other than initiating a fresh proceeding under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the Act of 2013, for short) for the purpose of determining compensation in question and payment thereof. 12. In view of the above, the respondents are directed to initiate a fresh proceeding under the Act of 2013 for acquisition of the land already taken over by the respondents BRO/GREF for construction of road and pay appropriate compensation to the petitioners in respect of the land taken over, within a period of four months from the date of communication of this order. The amount already deposited by the Requiring Body with the District Collector, Darjeeling may be utilised in paying part of the compensation assessed. 13. With these directions, the writ petition is disposed of. 14. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.