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2024 DIGILAW 1309 (CAL)

State of West Bengal v. Goutam Bhunia

2024-07-19

ARIJIT BANERJEE, PRASENJIT BISWAS

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JUDGMENT : PRASENJIT BISWAS, J. 1. The judgment and order dated 29.09.2022 passed by a learned Single Bench of this Court disposing of W.P.A. No. 15849 of 2018 is assailed in this appeal. 2. By passing the impugned order, learned Single Bench directed the District Magistrate, Paschim Medinipur to take necessary steps for payment of compensation to the writ petitioners at the present market rate within 3 months from the date of communication of that order. Being aggrieved by and dissatisfied with the said order the State of West Bengal and its concerned officers have preferred this appeal. 3. It is not in dispute that the State Government had vested 13.75 acres of land of the writ petitioners under the provision of the West Bengal Estates Acquisition Act. Thereafter the State Government distributed ‘Pattas’ amongst the landless persons/ tribal families who were in occupation of portions of the said land. The order of vesting was set aside by an order passed by the Appellate Authority. But the names of the writ petitioners were not incorporated in the record of rights by the concerned revenue Authority. The matter travelled to this Court and a learned Single Bench by passing an order dated 08.10.1996 in C.O. 15907(W) of 1996 directed that the vesting order having been set aside, all settlements/ ‘Pattas’ granted over the land of the writ petitioners should be annulled and the land should be returned to the owners/writ petitioners. A further attempt by the State authorities to vest the land of the writ petitioners was again set aside by a Division Bench of this Court on 21.02.2005 in connection with W.P.L.R.T 982 of 2002 whereby two orders, being an order dated 12th December, 2001 passed by the West Bengal Land Reforms Act and Tenancy Tribunal in O.A. 2377 of 2011 (LRTT) and an order dated 2nd August, 2002 passed by the said Tribunal in Misc. Case No. 86 of 2000 arising out of the said original application were set aside. The order passed by the Division Bench of this Court was assailed before the Hon’ble Apex Court but the said order was affirmed by the Apex Court. In compliance with the order of the Division Bench of this Court dated 21.02.2005, the record of rights was corrected in the names of the writ petitioners/respondents and corrected record of rights was issued in the year 2011. In compliance with the order of the Division Bench of this Court dated 21.02.2005, the record of rights was corrected in the names of the writ petitioners/respondents and corrected record of rights was issued in the year 2011. However, the State Government failed to hand over vacant possession of the land to the writ petitioners. As such the writ petitioners made representations with a prayer for returning the land, before different Authorities. 4. It is stated by the writ petitioners that the State Authorities induced them to sign on a letter of handing over possession but in fact actual possession was never handed over to them as the land was fully occupied by encroachers. It is further stated by the writ petitioners that the issue of return of land to the writ petitioners was taken up by the concerned B.D.O, Dantan - I in a meeting and a minutes was prepared wherein it was categorically recorded that around 59 families are residing on the plots in question for more than 30 years. It has been further stated by the writ petitioners that on the assurance meted out by the State Authorities, regarding return of the concerned land, they transferred some plots of land to the government for settlement in favour of the encroachers and also sold some other plots of land to the encroachers directly but unfortunately the concerned lands were not handed over to them. On the basis of the representation made by the present writ petitioners a report was prepared jointly by the Revenue Inspector and B.L & L.R.O, Dantan I and was submitted to the concerned B.D.O. It would appear from the said report that still there are encroachers on the land and it contains all the particulars of the encroachers. Finding no other alternative the writ petitioners again knocked the door of this Court by filing a writ petition being W.P.A. No. 15849 of 2018 and the said petition was disposed of in favour of the petitioners by the impugned order as stated earlier. 5. Mr. Suman Sengupta learned Advocate representing the State submitted that it is not in dispute that the State Authorities did not vest the land of the writ petitioners. 5. Mr. Suman Sengupta learned Advocate representing the State submitted that it is not in dispute that the State Authorities did not vest the land of the writ petitioners. It is stated that in compliance of the order passed by this Court the appellants rectified the record of rights in the name of the writ petitioners and possession was duly handed over to them and such possession was received by the petitioners without any objection thereto as would appear from the memo of possession issued by the State on 28.01.2013. It is further submitted on behalf of the appellants that the writ petitioners did not take any step since 28.01.2013 and filed the writ petition on 09.08.2018 after a gap of almost 6 years. By filing the said writ petition they are attempting to get the vacant possession of a portion of the land in question but in fact the possession was duly handed over by the State Authorities. 6. Mr. Sengupta further submitted that as the memo of possession was duly accepted by the petitioners by putting their signatures on it without raising any objection, hence, the government authorities became functus officio. At the time of hearing it was further argued by the learned Counsel that out of the said vested 1.73 acres of land the governmental authorities purchased 1.29 acres under the scheme ‘Nija Griha Nija Bhumi’ floated by the State Authorities but due to pendency of various civil suits some of the plots could not be brought under the said ‘N.G.N.B.’ scheme. It was stated by learned Counsel that some material facts have been suppressed by the petitioners as they did not disclose the fact that they have sold out at least 1.34 acres of land to different persons by dint of registered deeds of sale and now they are taking a short cut method bypassing the law with the motive of dispossessing/evicting the persons/tribal families who were on the land long before for 30-40 years and even before the vesting had taken place. So, the writ petitioners have taken contradictory stands in the fact that they have sold a portion of land in some plots in lieu whereof they have sought rent compensation/damages. So, the writ petitioners have taken contradictory stands in the fact that they have sold a portion of land in some plots in lieu whereof they have sought rent compensation/damages. As per submission of the learned Counsel that question of compensation ought not to be decided in favour of the writ petitioners as they are not entitled to get it and such compensation cannot be for 3.47 acres of land as alleged in the writ petition as they have already sold out the major portion of land to different persons. 7. Mr. Sengupta, learned Counsel further contended that the writ petition filed by the petitioners is not at all maintainable due to non-joinder of the parties who the writ petitioners claim to be in unlawful occupation of their lands and those persons/tribal families have not been arrayed as party respondents in the said writ petition. As per submission of the learned Counsel, the petitioners/respondents are not entitled to get any compensation as the principle of compensation is for use and occupation and payable by the occupier to the land lord as enunciated by the Hon’ble Apex Court in the case of Atma Ram Properties (P) Ltd. Reliance has been placed by the learned Counsel on the following decisions rendered by the Hon’ble Apex Court: (I) Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 (II) Amar Sing Vs. Union of India and Others, (2011) 7 SCC 69 (III) Olga Tellis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545 8. Lastly, Mr. Sengupta, learned Counsel submitted that the appellants being State, cannot evict and/or dispossess the persons/tribal families alleged to be in unlawful occupation without due process of law. Even if their possession is found to be illegal, they cannot be removed or evicted by force as has been settled by a Constitution Bench of the Hon’ble Apex Court in Olga Tellis case. It was submitted by the learned Counsel that the impugned order passed by the learned Single Bench is not maintainable in the eye of law and it should be set aside. 9. Per contra, Mr. Ayan Banerjee learned Counsel appearing for the respondents/writ petitioners submitted before us interalia that despite the order passed by this Court, the State Authorities failed to hand over vacant possession of the plots in question to the petitioners as there are encroachers on those plots of land. 9. Per contra, Mr. Ayan Banerjee learned Counsel appearing for the respondents/writ petitioners submitted before us interalia that despite the order passed by this Court, the State Authorities failed to hand over vacant possession of the plots in question to the petitioners as there are encroachers on those plots of land. It was submitted that on the assurance and request made by the government officials, his clients transferred some of the plots to the Government for settlement to the encroachers and sold some of the plots of land to the said encroachers directly and legal notice was served intimating the sale of those lands to the State Authorities. As the State Authorities failed to deliver vacant possession of the purportedly vested land to the writ petitioners they made several representations before several Authorities. Our attention was drawn by the learned Counsel to the report prepared by the Revenue Inspector and B.L & L.R.O. Dantan I which contains all particulars of encroachers on the said plots of lands. It was submitted by the learned Counsel that a writ petition was filed with a prayer for return of land and notice of the said writ petition was served upon the S.D.O. who in turn initiated proceedings for removal of the encroachers from the said plots of land but failed to obtain vacant possession of the said land. Our attention was further drawn to the letter of the S.D.O. dated 30.05.2017 from which it would appear that the lands have not been vacated. We were shown that at paragraphs 5 to 10 of their affidavit-in-opposition the State Authorities have admitted that the land of the writ petitioners was never vacated and there is a clear admission in paragraph 10 of the affidavit-in-opposition wherein State has admitted interalia that “in those circumstances, the possession of vacant land could not be handed over to the petitioners as yet. However, the respondent Authorities are still trying to resettle the encroachers who are occupying the petitioners’ land by providing them other lands for their suitable rehabilitation and handed over the vacant possession of the land in question to the petitioners.” As per submission of the learned Counsel, on the basis of various documents on record and categorical admission by the State Authorities in their affidavit-in-opposition and the report prepared by the Revenue Inspector and B.L & L.R.O. Dantan I as well as letter of S.D.O. Kharagpur, the learned Single Bench came to the specific finding that the State has not handed over peaceful vacant possession of the land to the writ petitioners. The learned Counsel submitted that there is no illegality or irregularity in the impugned order and there is no reason to interfere with the said order. 10. We have anxiously considered the submissions advanced by learned Counsel of both the parties. 11. After several rounds of litigation the matter in issue in this case is confined to whether vacant possession of the lands in question were handed over to the petitioners and if not, then whether the order passed by the learned Single Bench for payment of compensation to the petitioners at the present market rate is justified or not. 12. Undisputedly, lands of the petitioners were vested under the provisions of the West Bengal Estates Acquisition Act and the said order of vesting was set aside by the Appellate Authority. As the record of rights was not rectified/corrected in the names of the present writ petitioners, the matter travelled to this Court. A learned Single Bench of this Court by passing an order dated 08.10.1996 in C.O. 15907(W) of 1996 directed that the vesting order having been set aside, all the settlements/pattas granted by the State Authorities over the land in question should be annulled and further directed that the land should be returned to the owners. Thereafter another attempt was made by the State Authorities to vest the land but the said order passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A 2377 of 2001 (LRTT) was set aside by a Division Bench of this Court and that order of the Division Bench was affirmed by the Hon’ble Apex Court. Thereafter another attempt was made by the State Authorities to vest the land but the said order passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A 2377 of 2001 (LRTT) was set aside by a Division Bench of this Court and that order of the Division Bench was affirmed by the Hon’ble Apex Court. It is not in dispute that in compliance of the order of the Division Bench of this Court, the Authorities have incorporated the names of these writ petitioners in the record of rights. The State has taken a plea that the plots of land in question were already handed over by issuing a memo of possession after taking counter signature on the said memo but it would transpire from the report dated 20.04.2016 prepared by the Revenue Inspector and B.L & L.R.O Dantan I which contains all the particulars of encroachers, that there are encroachers on the plots in question and vacant possession was never handed over to these writ petitioners. This would also get support from the letter of the S.D.O. dated 30.05.2017, which reflects that the land in question have not been vacated. 13. Moreover, it would appear from the affidavit-in-opposition filed by the State that though it had issued memo of possession but admitted that the land of the writ petitioners was never vacated. It would appear from paragraph 10 of the affidavit-in-opposition filed by the State Authorities that possession of vacant land could not be handed over to the writ petitioners. The impugned order has been passed directing the Authority to pay compensation in respect of the land in question at the present market rate but it has not awarded rent compensation. The payment of compensation is different from rent compensation as the awarded compensation at the present market rate is in respect of land which cannot be returned. The principles as laid down by the Hon’ble Apex Court in the case of Atma Ram Properties (P) Ltd. deal with the occupational charges payable for stay of eviction of decree but there is no question of eviction decree in the present case. So, the principles as enunciated in the said case and cited on behalf of the appellant have got no relevance at all in the present matter. 14. So, the principles as enunciated in the said case and cited on behalf of the appellant have got no relevance at all in the present matter. 14. It was repeatedly submitted by learned Counsel for the appellants that the petitioners have distorted facts and suppressed material information relating to their sale of portion of land to various occupiers and due to such suppression of material facts at the time of filing of the writ petition they were not entitled to any equitable relief from this Court in view of the observations of the Hon’ble Apex Court in the case of Amar Sing, supra. We are told that suggestions from the State Authorities came to the petitioners for selling of portion of land to the encroachers at a negotiable rate and on the assurance given by the State Authorities and on their request the petitioners transferred some of the plots of land to the Government for settlement of the encroachers and some lands was sold to the encroachers directly. It would appear from the notice dated 27.11.2015 issued by the Advocate of the petitioners to the State Authorities that they intimated to the Authorities about the sale of certain plots of land on the assurance given and the request made by the State Authorities. Despite such sale, the problem of handing over vacant possession of land to the petitioners was not solved/finalized. Thereafter, the petitioners submitted different representations before different Authorities and on the basis of those representations a report was prepared by the Revenue Inspector and B.L & L.R.O Dantan I dated 20.04.2016 which indicates that there are different encroachers on the land in question and vacant possession of those lands was never handed over to these petitioners and this would get support from the letter of the S.D.O. dated 30.05.2017 which says that the dispute regarding handing over vacant possession of land has not been disposed of. 15. From the aforesaid sequence of events it would appear that despite passing of orders by this Court, possession of vacant land has never been handed over in favour of these petitioners and they have been deprived of their property by virtue of a vesting proceeding. We have already mentioned that this Court has passed order declaring the vesting order as illegal. We have already mentioned that this Court has passed order declaring the vesting order as illegal. This Court has already directed that the ‘pattas’ granted in respect of the land of the petitioners should be annulled and possession of the land should be handed over to the petitioners but the State Authorities are avoiding their obligation by not doing so and they are merely holding meetings and drawing up minutes without complying with court orders, thereby causing loss and prejudice to the respondents/writ petitioners. It is to be kept in mind that the appellants being State, they cannot take possession of a citizen’s land and hold on to such possession for eternity without following due process of law. These petitioners have a right to get back possession of their property immediately as they cannot be deprived of their right to property except by due process of law. A citizen’s right to property may not be a fundamental right any more, but it is still an important and valuable constitutional right recognized by Article 300A of the Constitution and has come to be recognized as a human right. 16. In this case undisputedly the State vested land of the petitioners under the relevant provision of the West Bengal Estate Acquisition Act and after taking possession it distributed the pattas amongst landless persons of the tribal families who are now in occupation of some portions of the said lands. In spite of annulment of such allotments by an order of this Court no steps have been taken by the State Authorities to return the land to the petitioners which, in our view, is an arbitrary and illegal act of the State. Hence, the State Authorities are duty bound to hand over vacant possession of the land in question to the petitioners forthwith. Since the State is not in a position to do so, it must compensate the writ petitioners appropriately for the loss of their valuable property. 17. Hence, the learned Single Bench rightly directed the State Authorities to take necessary steps for payment of compensation to the petitioner at the present market rate. From the documents on record it would appear that the State Authorities have failed to hand over/return vacant possession of the concerned land to the petitioners. 17. Hence, the learned Single Bench rightly directed the State Authorities to take necessary steps for payment of compensation to the petitioner at the present market rate. From the documents on record it would appear that the State Authorities have failed to hand over/return vacant possession of the concerned land to the petitioners. Merely by issuing memo of possession it would not suffice for the State Authorities to say that they have returned vacant possession of the land to the owners. The order of vesting was set aside by the Court. So, we find no illegality or infirmity in the impugned order passed by the learned Single Bench of this Court and there is no reason to interfere with the said order. We find that the present appeal is devoid of merit and is liable to be dismissed. 18. Accordingly the present appeal being no. M.A.T. 71 of 2024 is dismissed but without any order as to costs. 19. The entire exercise as directed by the learned Single Bench of this Court in the impugned order shall be completed within four months from the date of this judgment and order. I agree - Arijit Banerjee, J.