Calcutta High Court (Appellete Side)
Avijeet Daw & Ors vs Union Of India & Ors on 22 July, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
W.P.A. No.12349 of 2011
with
CAN 1 of 2012
Avijeet Daw & ors.
vs.
Union of India & ors.
For the petitioners : Mr. Debayan Bera,
Mr. Sakti Prasad Chakrabarty.
For the respondent Nos. 5 & 6 : Mr. Susanta Pal,
Mr. Ananda Dulal Sarkar.
For the State : Md. Galib,
Ms. Subhra Nag.
Hearing concluded on: 02.02.2021
Judgment on: 22.07.2021
Shampa Sarkar, J.:-
1. The predecessor-in-interest of the petitioner No. 1, as also the
petitioners No. 2 and 3 as joint owners of plot Nos. 43K, 43A and 43A/1A,
Narkeldanga Main Road, Kolkata - 700054, filed this writ petition being
aggrieved by a notification dated December 27, 2010, issued under Section
4(1) of The Land Acquisition Act, 1894 (hereinafter referred to as the said
Act) under Form 3D. The notice contained the substance of notification, for
acquisition of premises No. 43K, Narkeldanga Main Road, Kolkata
measuring about 0.1216 acres. The purpose of acquisition was to construct
the inlet and outlet of the Phoolbagan Metro Railway Station under the
"East-West Metro Corridor Project" (hereinafter referred to as the said
project). The facts of the case are narrated hereunder.
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2. The notification under Section 4(1) of the said Act was published in
two Bengali news papers Ganashakti and Aajkal on March 24, 2010 and
also in the Times of India on 26th March 2010. The Gazette Notification of
the same was made on April 9, 2010. Upon coming to know of the proposed
acquisition, the petitioners filed an objection dated July 14, 2010, under
Section 5A of the said Act, on various grounds.
3. Notice containing the substance of the notification under Section 4(1)
in Form 3D was served upon the petitioners on December 27, 2010 and the
public notice of the substance of the notification was displayed at a
convenient place in the locality on December 28, 2010. This was the last
date of publication. On being served with a copy of the Form 3D on
December 27, 2010, the petitioners filed another objection dated January
21, 2011, under Section 5A of the said Act.
4. A notice of hearing of the objection filed by the petitioners was served
upon them and March 2, 2011 was fixed for hearing. On March 2, 2011, the
petitioners attended the hearing and took an adjournment. The petitioners
then wrote a letter to the Managing Director of Kolkata Metro Rail
Corporation Limited (KMRCL) requesting inspection of the layout plan,
Inspection Book (IOB) and other documents which were relevant for the
hearing of their objection. The petitioners' letter dated March 8, 2011 was
not replied to by the metro railway authorities and the petitioners sent a
reminder on March 21, 2011.
5. March 29, 2011, was thereafter fixed for hearing of the objection and
on that day, the Learned Advocate of the petitioners prayed for an
adjournment. According to the petitioners, no further hearing was held. The
writ petition was then filed, alleging illegality in the proposed acquisition. It
was alleged that the notification under Section 4(1) of the said Act was
defective and non-supply of documents by the metro railway authorities
prior to the objections hearing, vitiated the process. It was the specific case
of the petitioners in the writ petition that their objections had not been
disposed of and was pending.
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6. The writ petition was filed on or about July 27, 2011. The writ petition
was first heard on August 17, 2011 by a coordinate bench, in the presence
of the learned Advocate for the State of West-Bengal. The petitioners were
directed to serve a copy of the writ petition upon the Union of India.
Thereafter the writ petition appeared on September 19, 2011. The learned
coordinate bench directed affidavit-in-opposition to be filed within November
18, 2011, reply within November 25, 2011. It was further ordered that the
pendency of the writ petition would not prevent the First Land Acquisition
Collector, Kolkata, that is, the respondent no.3 from disposing of the
objection filed by the petitioners under Section 5A of the said Act, by
passing a reasoned order in accordance with law, and after giving them an
opportunity of hearing. It was further directed that the action taken by the
respondents would abide by the result of the writ petition. The said order
was passed without prejudice to the rights and contentions of the parties
and subject to further orders. The order of this court was communicated to
the First Land Acquisition Collector, Kolkata and also to the Metro Railway
Authority.
7. The petitioners were not called for any further hearing of their
objection after March 29, 2011. The declaration under Section 6(1) of the
said Act was published in the Times of India on January 6, 2012, in
'Pratidin' on January 7, 2012 and in the Calcutta Gazette on March 5, 2012.
Public notice of the substance of declaration in Form 5B was made in the
locality on April 25, 2012. A notice under Section 9 of the said Act was
served upon the petitioners on August 17, 2012. On September 6, 2012 the
petitioners' advocate filed another objection before the Land Acquisition
Collector, Kolkata. A notice under Section 12 (2) of the said Act dated
September 13, 2012 was issued intimating the petitioners that an enquiry
under Section 11 of the said Act would be held on September 28, 2012. A
notice was hung in the premises on April 9, 2013, indicating that the award
had been declared on April 8, 2013. The petitioners did not attend the
hearing that was scheduled on September 28, 2012. A notice of taking over
possession was hung in the premises on April 9, 2013 and the possession
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was taken over on April 17, 2013. On May 17, 2013, the petitioners filed
their respective references under Section 18 of the said Act before the
Learned Special Land Acquisition Judge, Alipore (hereinafter referred to as
the learned L.A. Judge) without prejudice to their rights and contentions in
the writ petition. Records also reveal that the petitioners filed an application
before the Learned L.A. Judge for investment of the sum awarded in an
interest bearing fixed deposit in a nationalized bank, without prejudice to
their rights and contentions in the pending writ petition. By order dated
August 7, 2017, the said application was disposed of by the learned L.A.
Judge and the prayer was allowed without prejudice. Subsequently, the
original petitioner No.1 expired and his son Avijeet Daw, as the executor of
his Will was substituted in his place. The original respondent No.5 was also
substituted by Kolkata Metro Rail Corporation Limited (KMRCL) by an order
of this court. The petitioners were also granted leave by this Court to file a
supplementary affidavit to bring on record the subsequent events as
narrated hereinabove.
8. The respondents failed to file the affidavit-in-opposition as directed by
the court. The writ petition was pending before this court for a long time.
Thereafter, this court extended the time for filing the respective affidavits-in-
opposition. On March 4, 2019, the affidavit-in-opposition filed by the
KMRCL was taken on record. A prayer was made by the learned advocate for
the State of West Bengal for further extension of time for filing the affidavit-
in-opposition. The affidavit-in-opposition on behalf of State of West-Bengal
was filed on July 5, 2019, affidavit in reply of the petitioners was also filed
and the matter was heard at length.
9. The State of West-Bengal filed three affidavits-in-opposition. It was the
contention of the state respondents in their first affidavit, that the notice in
Form 3D dated December 27, 2010 was served upon the petitioners on
December 27, 2010 and displayed at a convenient place in the locality on
December 28, 2010. That the objection dated January 21, 2011 filed by the
petitioners under Section 5A of the said Act, was disposed of by the First
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Land Acquisition Collector, Kolkata on March 31, 2011 and a report with
the recommendation was forwarded for the decision of the government. The
contentions of the state respondents in the affidavit-in-opposition was that
the declaration under Section 6(1) was authenticated on December 28,
2011, and the entire process of acquisition as per Sections 8, 9 and 11 of
the said Act was complete. That the award was declared and the possession
of the land was taken on April 17, 2013. That the sum awarded was
remitted to the court of the learned L.A. Judge, Alipore as a civil deposit.
The order disposing of the objection and the recommendation of the First
Land Acquisition Collector were annexed to the affidavit-in-opposition.
10. It was contended by of the state respondents in their second affidavit
that the authentication of the declaration under Section 6(1) of the said Act
was made in the file by the Joint Secretary to the Government of West
Bengal on December 28, 2011 and the last date of public notice containing
the substance of notification under Section 4(1) of the said Act was
December 29, 2010 i.e. when the notice was served upon the Commissioner
Kolkata Municipal Corporation. The declaration under Section 6(1) of the
said Act according to the state respondents, was well within time. It was
further contended that as the petitioners had filed an application under
Section 18 of the said Act, challenging the quantum of the award before the
learned L.A. Judge and had also filed an application for investment of the
awarded sum in an interest bearing fixed deposit in a nationalized bank, the
petitioners had waived their right to challenge the acquisition proceeding,
more so, when the project was complete.
11. Strangely, when the writ petition was heard on August 17, 2011 and
thereafter on September 19, 2011, in the presence of the learned Advocates
for the state respondent, the fact that the objection dated January 21, 2011
filed by the writ petitioners, had been disposed of on March 31, 2011, much
prior to the first date of hearing of the writ petition had not been submitted
before the Court.
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12. Mr. Bera, learned Advocate appearing on behalf of the petitioners
restricted his arguments to non-compliance of the provisions of Section 5A
and Section 6(1) of the said Act. He submitted that the entire acquisition
proceeding was void ab initio for non-compliance of the above-mentioned
mandatory provisions of law.
13. Mr. Bera contended that the Land Acquisition Collector did not grant
a reasonable opportunity to the petitioners to place their objections
effectively. That the objection under Section 5A of the said Act was not
disposed of in accordance with law and the order was ante-dated. According
to him, had the objection been disposed of as early as on March 31, 2011,
the fact would have been disclosed before this Court by the learned
advocates for the state respondents on the first date of hearing. Rather, an
order was passed by this Court to the effect that the pendency of the writ
petition would not stand in the way of the state respondents, from disposing
of the said objection. He submitted that the order disposing of the objection
was also for the first time disclosed in the affidavit-in-opposition and had
not been served upon the petitioners. This amounted to violation of the
principles of natural justice. On the last date of hearing i.e. on March 29,
2010, the petitioners prayed for an adjournment. The objection had neither
been disposed of nor any hearing had taken place. He further submitted
that even assuming that the order was passed on March 31, 2011, none of
the points raised by the petitioners had been considered. He urged that the
objections with regard to the legality of the acquisition, description and
measurement of the land and the availability of other alternative sites etc.,
had not been dealt with by the First Land Acquisition Collector who was
required to dispose of each and every point raised in the objection, upon
making an enquiry. Once the above exercise was over, only then the
recommendations on such objections was to be made to the concerned
department of the government. On this issue he relied on the following
decisions:-
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(a) Daga Auto Service Pvt. Ltd. and another vs. The Land
Acquisition Collector (Special Railway Cell) reported in AIR 1978
Calcutta 1,
(b) Shri Mandir Sita Ramji vs. Governor of Delhi and others
reported in AIR 1974 SC 1868,
(c) Women's Education Trust and Another vs. State of Haryana
and Others reported in (2013) 8 SCC 99 and
(d) Surinder Singh Brar and Others vs. Union of India and Others
reported in (2013) 1 SCC 403.
(e) Gojer Brothers Private Limited and Another vs. State of West
Bengal and others reported in (2013) 16 SCC 660.
(f) Kedar Nath Yadav vs. State of West Bengal and Ors., reported
in (2017) 11 SCC 601. and
(g) Radhy Shyam (Dead) through LRS and ors. vs. State of Uttar
Pradesh and ors. reported in (2011) 5 SCC 553.
14. Mr. Bera next contented that in the affidavit-in-opposition dated July
5, 2019 filed by the First Land Acquisition Collector, it had been admitted
that the publication of the substance of notification in the locality was made
on December 28, 2010. According to Mr. Bera, the period of one year from
December 28, 2010 which was the last date of the publication, would end on
December 27, 2011. Even assuming that the authentication of the
declaration under Section 6(1) of the said Act, in the file of the State
Government was made by the Joint Secretary to the Government on
December 28, 2011, there was still a delay of one day in the authentication
of the declaration. Mr. Bera contented that the legislative intent was that the
declaration should be made within a period of one year from the last
publication of the substance of notification. In this case, the publication in
the locality was the last of such dates, i.e., December 28, 2010. He referred
to the relevant portions of the affidavit-in-opposition as also to the order of
the First Land Acquisition Collector dated March 31, 2011, disposing of the
objection of the petitioners under Section 5A of the said Act, where it had
been categorically mentioned by the said authority that the public notice in
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the locality at a convenient place as per Section 4(1) of the said Act was
made on December 28, 2010. He also referred to the affidavit-in-opposition
filed on behalf of KMRCL where these facts had also been admitted. He drew
the attention of the Court to a document dated January 10, 2012 which was
a letter written by First Land Acquisition Collector, Kolkata to the Joint
Secretary to the Government of West-Bengal, Land & Land Reforms
Department. By the said letter, the First Land Acquisition Collector, Kolkata
intimated the concerned department that the period of one year for making
the declaration had lapsed and no publication of the same could be done.
15. According to Mr. Bera, the plea of the acquiring body that the period
of one year should be calculated from December 29, 2010 that is, the date
when the Commissioner of the Kolkata Municipal Corporation received a
copy of the public notice was not acceptable in law. On the issue of lapse of
the acquisition proceeding in view of the expiry of the period of one year in
making the declaration under Section 6(1) of the said Act, Mr. Bera relied on
the following decisions:-
(a) Padmasundara Rao(Dead) and Others vs. State of T.N. and
others reported in AIR 2002 SC 1334,
(b) Ashok Kumar and Others vs. State of Haryana and Another
reported in AIR 2007 SC 1411.
(c) Krishi Utpadan Mandi Samiti and Anr. vs. Makrand Singh and
others reported in (1995) 2 SCC 497 and
(d) Eugenio Misquita and Others vs. State of Goa and Others reported
in (1997) 8 SCC 47.
16. Mr. Bera thus submitted that the land acquisition proceeding insofar
as, the land of petitioners is concerned, be set aside for non compliance of
the statutory provisions of Section 5A and Section 6(1) of the said Act. He
also submitted that the court should mould the relief in this case by
directing the state respondents to proceed afresh under the provisions of the
"The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to the Act of
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2013). He relied on the decision of K.B. Ramachandra Raje Urs (Dead) by
legal representative vs. State of Karnataka and Others, reported in
(2016) 3 SCC 422.
17. On the point of waiver, Mr. Bera submitted that where a proceeding
was vitiated and acquisition was declared to be mala fide, acquiescence by
the petitioners was of no consequence. He relied on the following decisions:-
(a) P.Dasa Muni Reddy vs. Appa Rao reported in AIR 1974 SC 2089,
(b) Vyalikaval House Building Co-op, Society vs. V. Chandrappa
and Others reported in AIR 2007 SC 1151.
18. He submitted that the petitioners filed the reference under Section 18
of the said Act before the learned L.A Judge, and had prayed for investment
of the awarded amount in an interest bearing fixed deposit in a nationalized
bank, without prejudice to their rights and contentions in the writ petition.
In support of his contention, he relied on the decision of the Hon'ble Apex
Court in Superintendent (Tech. I) Central Excise, I.D.D Jabalpur and
others vs. Pratap Rai reported in AIR 1978 SC 1244.
19. Mr. Susanta Paul learned Advocate appearing on behalf of the Kolkata
Metro Rail Corporation Limited (KMRCL) contented that once the acquisition
was complete, the award had been declared, the money had been deposited
in court, the construction of inlet and outlet of Phoolbagan Metro Railway
station on the said premises in question was over and the petitioners had
filed an application for enhancement of the awarded sum before the learned
L.A. Judge by filing an application under Section 18 of the said Act, nothing
remained to be decided in the writ petition. He submitted that when the
petitioners move the learned L.A. Judge for an order for investment of the
sum awarded in an interest bearing fixed deposit in a nationalized bank,
they had accepted the acquisition proceeding, and the writ petition had
become infructuous. According to Mr. Paul, the grievance of the petitioners
with regard to taking over the passage comprising premises No. 43A/1A
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Narkeldanga Main Road Kolkata by KMRCL ought to be decided by a civil
court.
20. Mr. Galib, learned Advocate appearing on behalf of the state
respondents vehemently denied the allegations that the order disposing of
the objection filed under Section 5A of the said Act was ante-dated. He
denied that the order was passed in violation of the principles of natural
justice and stated that the order was well reasoned. He urged that the
question of violation of principles of natural justice by the First Land
Acquisition Collector did not arise, as the petitioners by asking for repeated
adjournments had deprived themselves of the right to be heard. He
submitted that the petitioners intentionally took adjournments at the
hearing only to frustrate the entire purpose of the land acquisition. The
intention was to delay so that the process would automatically lapse. In
support of this contention, he relied on the decision of Apex Court in
Aircraft Employees' Housing Cooperative Society Ltd. vs. Secretary,
Rural Development and Panchayat Raj, Govt. of Karnataka, Bangalore
and Others. reported in (1996) 11 SCC 475. He submitted that the
petitioners had proceeded before the Learned L.A. Judge, under Section 18
of the said Act and prayed for deposit of the awarded sum in an interest
bearing fixed deposit in a nationalized bank, which amounted to waiver of
their right to challenge the acquisition proceeding itself.
21. Mr. Galib submitted that no useful purpose would be served at this
stage in remitting back the matter to the First Land Acquisition Collector,
Kolkata to hear out the objections once again, as the project for which the
land had been acquired was complete. Fresh hearing would only be a mere
ritual as the acquisition was a foregone conclusion. He relied on the decision
of the Apex Court in Dharmapal Satyapal Limited vs. Deputy
Commissioner of Central Excise, Guhati and others, reported in (2015)
8 SCC 519, in this regard.
22. Mr. Galib further submitted that the respondents were not bound by
law to dispose of numerous objections filed by the petitioners. Disposal of
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one such objection would amount to compliance of the requirement of the
statute. He contended that the scope and ambit of objections under Section
5A of the said Act was limited and restricted to the questions as to whether
the premises were required for a public purpose or not. The objections with
respect to legality of the acquisition, description of the land, the availability
of other alternative land, were not matters to be decided at the stage of
disposal of the objections but were to be decided during the proceedings,
under Sections 9 and 10 of the said Act. Mr. Galib submitted that the
Hon'ble Apex Court in the decision of Executive Engineer, jal Nigam
Central Stores Division, U.P. Vs. Suresha Nand Juyal alias Musa Ram
(Decesased) by LR's and others., reported in AIR 1997 SC 2180, held
that where an award had been made and symbolic possession had been
taken by the State, the High Court ought not to interfere with such
acquisition proceedings. He relied on the decision of the Apex Court in
Abdul Hussain Tayabali and others vs. State of Gujarat and Others.
reported in AIR 1968 SC 432, in support of his contention that neither
Section 5A nor any other provision of the said Act laid down that a second
opportunity of hearing should be given while disposing of the objection filed
by the petitioners.
23. According to Mr. Galib, the allegation of violation of the principles of
natural justice was baseless as the procedure prescribed by law had been
followed by the state respondents. He relied on decision of the Allahabad
High Court in Chandan Singh Gosain vs State of U.P and another
reported in AIR 1980 All 106, in support of his contention that Section 5A
did not require the Collector to pass any positive order either accepting or
rejecting the objection. The scope and the object of Section 5A of the said
Act, was limited to determination of the purpose of acquisition.
24. Mr. Galib relied on the decisions of the Apex Court in Manimegalai
vs. Special Tahasildar (Land Acquisition Officer) Adi Dravidar Welfare
reported in AIR 2018 SC 2020 and decision of this Court in Saktipada
Mandal & Others vs. Collector, District Hooghly and Others., reported
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in AIR 1976 Cal 282, in support of his contention that the expression
'public purpose' was not capable of a precise definition and it was not for the
court to decide whether the particular purpose for which the acquisition was
proposed was a public purpose or not. It was not within the competence of
the court to decide what would be 'public purpose'.
25. Mr. Galib next urged that a declaration under Section 6(1) of the said
Act could be challenged only on the ground of mala fide and not on the
ground of delay or otherwise. He relied on the decision of Apex Court in
Ganesh Jha and others vs. State of Bihar and Others., reported in AIR
1976 SC 923.
26. With regard to delayed declaration under Section 6(1) of the said Act,
Mr. Galib submitted that the period of one year should be calculated from
December 29, 2010 i.e. the date when the Commissioner of Kolkata
Municipal Corporation was served with the notice under Section 4(1) of the
said Act. The authentication of the declaration having been made in the files
of the concerned department on 28th December 2011, there was no delay in
making the declaration under Section 6(1) of the said Act. He contended that
there was a presumption of correctness in the acquisition proceeding which
was done by the government in exercise of the power conferred by the
statute. He further submitted that publication of declaration in the
newspaper and in the Gazette were ministerial acts and minor irregularities
were not relevant for the purpose of the calculation of period of one year as
envisaged under Section 6(1) of the said Act. He relied on the decisions
passed in Venkataswamappa v. Special Deputy Commissioner (Revenue)
reported in (1997) 9 SCC 128 and Land Acquisition Collector and anr. v.
Durga Pada Mukherjee and ors., reported in (1980) 4 SCC 271, in
support of his contention that a declaration could be challenged only on the
ground of mala fide and colourable exercise of power.
27. Next, Mr. Galib submitted that the petitioners had waived their right
to challenge the acquisition proceeding as the filing of an application before
the learned L.A Judge, under Section 18 of the said Act, would mean that
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the petitioners were aggrieved by the quantum of the awarded sum and not
by the acquisition itself. He further contented that when the petitioners
asked for investment of the awarded amount in an interest bearing fixed
deposit in a nationalized bank so that it may earn interest, such action itself
proved that the petitioners were only interested in enhancement of the
awarded amount. He submitted that the petitioners could not be allowed to
carry on parallel proceedings in two different fora. On the point of waiver Mr.
Galib relied on the decision of Hon'ble Apex Court in Provash Chandra
Dalui and another vs. Biswanath Banerjee and another reported in AIR
1989 SC 1834.
28. I have heard the rival contentions of the parties. The provisions of the
said Act which are relevant in this case are Sections 4(1), 5A and 6(1).
Section 4(1) of the said Act is quoted herein below for convenience:-
"4. Publication of preliminary notification and powers of officers
thereupon.-
(1) Whenever it appears to the [appropriate Government] that land
in any locality [is needed or] is likely to be needed for any public
purpose [or for a company], a notification to that effect shall be
published in the Official Gazette [and in two daily newspapers
circulating in that locality of which at least one shall be in the
regional language], and the Collector shall cause public notice of
the substance of such notification to be given at convenient
places in the said locality [(the last of the dates of such
publication and the giving of such public notice, being hereinafter
referred to as the date of the publication of the notification)].
29. This sub-section provides that the substance of the notification
should be published in the official gazette and in two daily newspapers
circulating in the locality of which at least one should be in the regional
language and the Collector should also cause public notice of the substance
of such notification in the concerned locality at a convenient place. In this
case as per the records disclosed in the affidavit-in-opposition, the date of
publication of the substance of notification in the locality as it appears from
the records was 28th December 2010. This was the last date of series of
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publications under Section 4(1) of the said Act and thus the date of
publication of the notification.
30. In the decision of Ajay Krishan Shinghal and others vs. Union of
India and Others reported in (1996) 10 SCC 721, the Apex Court
reiterated the settled principle of law that publication of the notification
under Section 4(1) in the gazette and publication of substance at a
convenient place in the locality were mandatory requirements and once the
publication was done in the locality, the second limb of the requirement
under Section 4(1) stood complied with.
31. Section 5A(1) of the said Act gives the right to the land owner to object
to the notification. Section 5A(1) is quoted below for convenience:-
"5-A. Hearing of objections.
(1) Any person interested in any land which has been notified
under section 4, sub-section (1), as being needed or likely to be
needed for a public purpose or for a company may, [within thirty
days from the date of the publication of the notification], object to
the acquisition of the land or of any land in the locality, as the
case may be."
32. Here, as soon as the notification under Section 4(1) of the said Act
was made in the official gazette, the petitioners had filed an objection even
before notice of the substance of the notification under Section 4(1) in Form
3D was served upon the petitioners. The respondent did not respond to such
objection. Thereafter upon receipt of the Form 3D, again the petitioners on
January 21, 2011 filed their objections primarily on the following points:-
(a) The description of the plot of the land to be acquired did not tally with
the measurement and as such the notification suffered from incorrect
description of the land.
(b) That alternative lands were available for the construction of the inlet
and outlet of Phoolbagan metro railway station.
(c) The Greek Cemetery land which was no more in use, could be used for
the same purpose.
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(d) To prevent undue hardship, the premises of the petitioners proposed
to be acquired which primarily served the purpose of ingress and
egress to their dwelling house, should not be acquired before the
availability of the alternative lands was enquired into.
(e) Under the garb of acquiring premises No. 43K Narkeldanga Main
Road, Kolkata, the respondents were also acquiring the premises No.
43A/1A which was an exclusive property of the petitioners.
(f) The possession plan differed from the execution plan of the project.
33. The writ petition was filed on or about July 27, 2011 and was first
heard on August 17, 2011 by a coordinate bench. The petitioners were
directed to serve a copy upon the Union of India. The learned advocate for
the state respondents was present on August 17, 2011. Thereafter, the writ
petition appeared on September 19, 2011 and a learned coordinate bench
directed affidavit-in-opposition to be filed within November 18, 2011, reply
thereto within November 25, 2011. It was further directed that the pendency
of the writ petition would not prevent the First Land Acquisition Collector,
Kolkata, the respondent no.3 herein, from disposing of the objection filed
under Section 5A of the said Act by passing a reasoned order, in accordance
with law after giving the petitioners an opportunity of being heard. It was
further directed that the action taken by the respondents would abide by the
result of the writ petition. The said order was passed by this court without
prejudice to the rights and contentions of the parties and subject to further
orders that may be passed. The order dated March 31, 2011, disposing of
the objection under Section 5A of the said Act had been annexed to the
affidavit-in-opposition filed by state respondent. That was the first time that
the writ petitioners came to know of the order and got a copy thereof. Even
during the hearing of the writ petition on August 17, 2011 and September
19, 2011, the state respondents did not disclose the fact that the First Land
Acquisition Collector by an order dated March 31, 2011 had already
disposed of the objection filed by the petitioners. Thus, there appears to be
arbitrariness in the action of the state respondents in disposing of the
objection. The respondents have not disclosed any document showing that
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the said order dated March 31, 2011, had ever been served upon the
petitioners. The petitioners were entitled to a copy of the said order and non-
service of the copy of the said order upon the petitioners amounts to
violation of the principles of natural justice. Due to lapse of time, the said
project was complete. Thus, the petitioners were deprived of an opportunity
to challenge the order disposing of their objection. In the decision of
Managing Director ECIL Hyderabad and others vs. B. Karunakar and
others reported in (1993) 4 SCC 727, the Hon'ble Apex court held that non
service of any order passed pursuant to any enquiry or proceeding, upon the
person affected by that order, would amount to violation of the principles of
natural justice.
34. The petitioners were called for hearings on March 2, 2011 and March
29, 2011. On March 2, 2011, the petitioners' prayer for adjournment was
allowed. On March 29, 2011, the petitioners' prayer for adjournment was
rejected. The petitioners' request before the metro railway authority to allow
them to see the inspection book (IOB), site plan and maps were also not
entertained. However, records do not reveal that a proper hearing on the
objections had taken place on March 29, 2011. It is also not recorded
whether the petitioners' learned advocate had refused to participate in the
hearing. Strangely, the order mentions that the hearing was concluded on
March 29, 2011 and the order was passed on March 31, 2011. The
petitioners were completely unaware of such order. No order was
communicated to the petitioners. Neither any submissions of the petitioners'
advocate nor any proceedings have been recorded. None of the grounds of
objection have been individually dealt with. This is omission goes to the very
root of the proceeding.
35. The order passed by the First Land Acquisition Collector, Kolkata,
dated March 31, 2011 is not in conformity with the provisions of Section
5A(2). The objection of the petitioners with regard to the description,
measurement of the plot of the land and availability of the Greek Cemetery
as an alternative site for the construction of inlet and outlet of Phoolbagan
17
metro railway station, had not been considered. The objection of the
petitioners that under the garb of acquiring premises No. 43K Narkeldanga
Main Road, the respondents were also acquiring premises No. 43A/1A which
was an exclusive property of the petitioners was also not addressed. No
enquiry on the objections was made. No recommendation on the objections
was also made in terms of the statute. The decision of the appropriate
government on such objections has also not been disclosed before this
court. The respondent no.3 made a general recommendation for publication
of the declaration. These factual objections required an enquiry by the First
Land Acquisition Collector which had not been done. The merits of the
objection should have been considered. The cogent reasons for not accepting
the alternative sight should have been recorded as held in Daga Auto
Services (supra).
36. Although, the ultimate decision was to be made by the State
Government, it did not relieve the Collector of his statutory duty to enquire
into the factual aspects of the objection and make the recommendation. The
compliance of the procedure laid down by the statute before depriving a
person of his property was necessary, in order to generate the feeling that
rule of law prevailed in any state action. The relevant provisions of the law is
quoted below:-
"5-A(2)
(1) ....................
(2) Every objection under sub-section (1) shall be made to the
Collector in writing, and the Collector shall give the objector an
opportunity of being heard [in person or by any person authorised
by him in this behalf] or by pleader and shall, after hearing all
such objections and after making such further inquiry, if any, as
he thinks necessary, [either make a report in respect of the land
which has been notified under section 4, sub-section (1), or make
different reports in respect of different parcels of such land, to
the appropriate Government, containing his recommendations on
the objections, together with the record of the proceedings held by
him, for the decision of that Government]. The decision of
the [appropriate Government] on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to
be interested in land who would be entitled to claim an interest in
compensation if the land were acquired under this Act.]"
18
37. It is settled law that the purpose of giving a hearing to the persons
whose property was sought to be acquired was that such persons should
have a right to try and convince the acquiring authority that alternative site
for the public purpose was available and the proposed acquisition would
cause undue hardship to them. Right of a citizen who is a land loser to
convince the government to leave aside their property and to acquire
similarly available unused property which would serve a similar purpose,
has been legally recognized. Mr. Galib's contention that only the nature of
the 'public purpose' could be decided in the proceeding under Section 5A of
the said Act, is not accepted. Such proposition is contrary to the provisions
of Section 5A of the said Act. His further contention that the petitioners only
had a right to convince the First Land Acquisition Collector that the purpose
involved was not public purpose is also not accepted. In this case, the order
passed was cryptic. The relevant portion of the order is set out below which
would indicate that the proceeding was vitiated due to non-compliance of
the provision of Section 5A(2):-
"On 29-03-11 the C.R. is put up after filing of hazira by Sri Arun Kr.
Daw and his Ld. Advocate Sri Achintya Kumar Dutta.
Heard the party present. Ld. Advocate made submission that the
planning of the project made by K.M.R.C.L. might be inspected by
them. They have submitted a letter to the Chief engineer K.M.R.C.L.
praying appointment which is shown to me. They have prayed time
for another two months for showing the I.O.B. report. They are
advised to show the said I.O.B. report in the next stage or hearing
u/s 9 & 10 of the L.A. Act 1894 (Act-I of 1894). They also stated that
no question of title is disputed now.
No time is allowed. Considering all objections the undersigned opines
to take further course of actions u/s 6 of the said Act.
The case is recommended. Let the report be forwarded to the Govt. In
L & L.R. department for consideration and further actions."
38. In Usha Stud & Agricultural Farms (P) Ltd. v. State of
Haryana reported in (2013) 4 SCC 210, the Hon'ble Apex Court observed
as follows:-
19
"30.The ratio of the aforesaid judgments is that Section 5-A(2), which
represents statutory embodiment of the rule of audi alteram partem,
gives an opportunity to the objector to make an endeavour to convince
the Collector that his land is not required for the public purpose
specified in the Notification issued under Section 4(1) or that there are
other valid reasons for not acquiring the same. That section also
makes it obligatory for the Collector to submit report(s) to the
appropriate Government containing his recommendations on the
objections, together with the record of the proceedings held by him so
that the Government may take appropriate decision on the
objections. Section 6(1) provides that if the appropriate Government is
satisfied, after considering the report, if any, made by the Collector
under Section 5-A(2) that particular land is needed for the specified
public purpose then a declaration should be made. This necessarily
implies that the State Government is required to apply mind to the
report of the Collector and take final decision on the objections filed
by the landowners and other interested persons. Then and then only,
a declaration can be made under Section 6(1)."
39. In the decision of Shri Mandir Sita Ramji (supra), the Hon'ble Apex
Court held that, when objections were filed before the Land Acquisition
Collector raising questions of fact, the Land Acquisition Collector should
enquire into such objection and then make his recommendations. In the
case in hand, the failure of the Land Acquisition Collector to enquire into the
objection after giving the objector an opportunity of being heard, would
indicate that he declined to exercise his jurisdiction under the law.
Moreover, the application of mind by the State Government on the
recommendation has also not been produced before this Court. The
authorities failed to exercise the jurisdiction vested upon them by law.
40. In my view, non-consideration of the objections filed under Section 5A
both by the collector as also the appropriate government has resulted in
denial of an effective opportunity of hearing to the petitioners. The manner
in which the Land Acquisition Collector, Kolkata recommended the
acquisition of the property is reflective of total non- application of mind and
non-compliance of the statutory provisions by the competent authority. The
recommendation made by the Land Acquisition Collector is couched in
general terms and not on the objections of the petitioners. The questions of
facts raised by the petitioners were ignored and the recommendation had
20
not been preceded by an enquiry. The final decision of the government on
the objection and recommendation is also not on record.
41. Even if the acquisition is a foregone conclusion, non-observance of the
statutory provisions would vitiate the proceedings. The casual observation of
the authority that the objections would be relevant at the stage of
proceedings under Section 9 and 10 of the said Act, cannot, in my opinion,
be a compliance of the provisions of Section 5A of the said Act.
42. In Surinder Singh Brar (supra) the Apex Court held as follows:-
"83. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai [(2005) 7 SCC 627], this Court analysed Section 5-A in the
following words: (SCC pp. 637-38, paras 15-16 & 19)
'15. Section 5-A of the Act is in two parts. Upon receipt of objections,
the Collector is required to make such further enquiry as he may
think necessary whereupon he must submit a report to the
appropriate Government in respect of the land which is the subject-
matter of notification under Section 4(1) of the Act. The said report
would also contain recommendations on the objections filed by the
owner of the land. He is required to forward the records of the
proceedings held by him together with the report. On receipt of such a
report together with the records of the case, the Government is to
render a decision thereupon. It is now well settled in view of a catena
of decisions that the declaration made under Section 6 of the Act need
not contain any reason....
16. However, considerations of the objections by the owner of the land
and the acceptance of the recommendations by the Government, it is
trite, must precede a proper application of mind on the part of the
Government....
***
19. Furthermore, the State is required to apply its mind not only on
the objections filed by the owner of the land but also on the report
which is submitted by the Collector upon making other and further
enquiries therefor as also the recommendations made by him in that
behalf. The State Government may further inquire into the matter, if
any case is made out therefor, for arriving at its own satisfaction that
it is necessary to deprive a citizen of his right to property.'
84. What needs to be emphasised is that hearing required to be given
under Section 5-A(2) to a person who is sought to be deprived of his
land and who has filed objections under Section 5-A(1) must be
effective and not an empty formality. The Collector who is enjoined
with the task of hearing the objectors has the freedom of making
further enquiry as he may think necessary. In either eventuality, he
has to make report in respect of the land notified under Section 4(1) or
make different reports in respect of different parcels of such land to
the appropriate Government containing his recommendations on the
objections and submit the same to the appropriate Government along
with the record of proceedings held by him for the latter's decision.
The appropriate Government is obliged to consider the report, if any,
made under Section 5-A(2) and then record its satisfaction that the
particular land is needed for a public purpose. This exercise
culminates into making a declaration that the land is needed for a
public purpose and the declaration is to be signed by a Secretary to
the Government or some other officer duly authorised to certify its
orders. The formation of opinion on the issue of need of land for a
public purpose and suitability thereof is sine qua non for issue of a
declaration under Section 6(1). Any violation of the substantive right
of the landowners and/or other interested persons to file objections or
denial of opportunity of personal hearing to the objector(s) vitiates the
recommendations made by the Collector and the decision taken by the
appropriate Government on such recommendations. The
recommendations made by the Collector without duly considering the
objections filed under Section 5-A(1) and submissions made at the
hearing given under Section 5-A(2) or failure of the appropriate
Government to take objective decision on such objections in the light
of the recommendations made by the Collector will denude the
decision of the appropriate Government of statutory finality. To put it
differently, the satisfaction recorded by the appropriate Government
that the particular land is needed for a public purpose and the
declaration made under Section 6(1) will be devoid of legal sanctity if
statutorily engrafted procedural safeguards are not adhered to by the
authorities concerned or there is violation of the principles of natural
justice. The cases before us are illustrative of flagrant violation of the
mandate of Sections 5-A(2) and 6(1). Therefore, the second question is
answered in the affirmative."
43. In Gojer Brothers (supra), the Hon'ble Apex Court held as follows:-
"20. If the report prepared by the Land Acquisition Collector is
scrutinised in the light of the principles laid down in the
aforementioned judgments, we do not find any difficulty in holding
that the learned Single Judge and the Division Bench of the High
Court committed serious error by approving the acquisition
proceedings ignoring that the report was prepared in clear violation of
mandate of Section 5A and the State Government mechanically
accepted the report leading to the issue of declaration issued under
Section 6(1). In the original and supplementary objections find by it,
the appellant had claimed that the entire exercise of acquisition was
vitiated due to mala fides and colourable exercise of power. The
history of litigation between the parties was also cited by the appellant
to substantiate its plea that the acquisition proceedings were initiated
only after the management of the School lost legal battle up to this
Court. It was also pleaded that the acquisition was meant to bypass
the direction given by this Court to the management of the School to
hand over the possession of the School. Unfortunately, the Land
Acquisition Collector did not deal with any of the objections and
summarily rejected the same as if compliance with section 5A(2) was
an empty formality. The State Government also did not apply mind
and mechanically approved the one-line recommendation made by the
Land Acquisition Collector.
21. In our view, non consideration of the objections filed under section
5A(1) has resulted in denial of effective opportunity of hearing to the
appellant. The manner in which the Joint Secretary to the
Government approved the recommendation made by the Land
Acquisition Collector favouring acquisition of the property is reflective
of total non-application of mind by the competent authority to the
recommendation made by the Land Acquisition Collector and the
report prepared by him.
22. In the result, the appeals are allowed, the impugned order as also
the one passed by the learned Single Judge in Gojer Bros. (P) Ltd. v.
State of W.B. and are set aside."
44. In Daga Auto Service (supra), the Hon'ble Apex Court held that the
main purpose of making a report under Section 5-A of the Act was to find
out whether the proposed purpose was a 'public purpose' and whether there
was any objection to the acquisition of the land for the said purpose. It was
held that an enquiry as to whether there was any alternative land which
could be acquired or the purpose of acquisition would be better served by
acquisition of any other property, were relevant to the extent that the order
and the report had the chance of becoming vulnerable on the ground of
arbitrariness, if those aspects were not enquired into.
45. In the decision of Women's Education (supra), the Hon'ble Apex
Court held that it was unfortunate that despite repeated judicial
pronouncements, the executive authorities entrusted with the task of
acquiring private land for any specified public purposes had time and again
exhibited total lack of seriousness in the performance of their duties under
the statute.
46. In Kedar Nath Yadav (supra), the Hon'ble Apex Court held as
follows:-
"141. In Raghbir Singh Sehrawat v. State of Haryana it was observed
thus:
'39. In this context, it is necessary to remember that the rules of
natural justice have been ingrained in the scheme of Section 5-A with
a view to ensure that before any person is deprived of his land by way
of compulsory acquisition, he must get an opportunity to oppose the
decision of the State Government and/or its
agencies/instrumentalities to acquire the particular parcel of land. At
the hearing, the objector can make an effort to convince the Land
Acquisition Collector to make recommendation against the acquisition
of his land. He can also point out that the land proposed to be
acquired is not suitable for the purpose specified in the notification
issued under Section 4(1). Not only this, he can produce evidence to
show that another piece of land is available and the same can be
utilised for execution of the particular project or scheme.'
142. In Kamal Trading (P) Ltd. v. State of W.B. (2012) 2 SCC it was
held thus:
'25. According to the appellant, the notification under Section 4 of the
LA Act was not served on the owner companies. However, upon
coming to know of this notification, the appellant vide their letter
dated 8-9-1997 submitted objections running into four pages
containing 8 paragraphs. We have already noted that the Second Land
Acquisition Officer adjourned the hearing on one occasion as
requested by the appellant. He, however, refused to adjourn the
matter any further. The second request was rejected. We feel that
looking to the nature of the issues involved, the Second Land
Acquisition Officer could have adjourned the proceedings after putting
the appellant to terms because hearing the representative of the owner
companies was mandatory. In any event, if he did not want to adjourn
the proceedings and wanted to consider the objections in the absence
of the counsel for the owner companies and assuming such a course
is permissible in law, he should have dealt with the objections
carefully and not in such a light-hearted manner because a heavy
responsibility rested on his shoulders.'
143. In Surinder Singh Brar v. Union of India it was observed thus:
'76. Section 5-A, which embodies the most important dimension of the
rules of natural justice, lays down that any person interested in any
land notified under Section 4(1) may, within 30 days of publication of
the notification, submit objection in writing against the proposed
acquisition of land or of any land in the locality to the Collector. The
Collector is required to give the objector an opportunity of being heard
either in person or by any person authorised by him or by pleader.
After hearing the objector(s) and making such further inquiry, as he
may think necessary, the Collector has to make a report in respect of
land notified under Section 4(1) with his recommendations on the
objections and forward the same to the Government along with the
record of the proceedings held by him. The Collector can make
different reports in respect of different parcels of land proposed to be
acquired.'
'84. What needs to be emphasised is that hearing required to be given
under Section 5-A(2) to a person who is sought to be deprived of his
land and who has filed objections under Section 5-A(1) must be
effective and not an empty formality. The Collector who is enjoined
with the task of hearing the objectors has the freedom of making
further inquiry as he may think necessary. In either eventuality, he
has to make report in respect of the land notified under Section
4(1) or make different reports in respect of different parcels of such
land to the appropriate Government containing his recommendations
on the objections and submit the same to the appropriate Government
along with the record of proceedings held by him for the latter's
decision. The appropriate Government is obliged to consider the
report, if any, made under Section 5-A(2) and then record its
satisfaction that the particular land is needed for a public purpose.
This exercise culminates into making a declaration that the land is
needed for a public purpose and the declaration is to be signed by a
Secretary to the Government or some other officer duly authorised to
certify its orders. The formation of opinion on the issue of need of land
for a public purpose and suitability thereof is sine qua non for issue of
a declaration under Section 6(1). Any violation of the substantive right
of the landowners and/or other interested persons to file objections or
denial of opportunity of personal hearing to the objector(s) vitiates the
recommendations made by the Collector and the decision taken by the
appropriate Government on such recommendations. The
recommendations made by the Collector without duly considering the
objections filed under Section 5-A(1) and submissions made at the
hearing given under Section 5-A(2) or failure of the appropriate
Government to take objective decision on such objections in the light
of the recommendations made by the Collector will denude the
decision of the appropriate Government of statutory finality. To put it
differently, the satisfaction recorded by the appropriate Government
that the particular land is needed for a public purpose and the
declaration made under Section 6(1) will be devoid of legal sanctity if
statutorily engrafted procedural safeguards are not adhered to by the
authorities concerned or there is violation of the principles of natural
justice the cases before us are illustrative of flagrant violation of the
mandate of Sections 5-A(2) and 6(1). Therefore, the second question is
answered in the affirmative'."
Thus the state respondents acted in a casual and cavalier manner while
disposing of the objection of the petitioners and even failed to supply a copy
of the same to the aggrieved party. The provisions of law has not been
complied with. The application of mind of the state government on the
objections and the recommendations is absent.
47. The decision of the Hon'ble Apex Court in Dharampal Satyapal
(supra) cited by Mr. Galib, is not relevant in this context.
48. The facts in the decision of the Apex Court in Aircraft Employees'
(supra) are different inasmuch as, in that case the Apex Court held that the
objector denied himself of the opportunity of being heard as despite three
adjournments at his behest, neither the objector nor his counsel was
present on the fourth day when the objection was fixed for hearing and
disposed of. This is not a case in which the order itself suffered from non-
application of mind.
49. In this case, even if the adjournment was not allowed and the
proceedings continued, the First Land Acquisition Collector was duty bound
to deal with the objections raised by the petitioners. Before the declaration,
the appropriate government also has to arrive at a satisfaction on the
materials on record that, the acquisition of the premises concerned was
justified in order to achieve the public purpose. No such order of the state
government has been disclosed.
50. Chandan Singh (supra), does not apply to the facts of this case
inasmuch as, what fell for decision before the learned Court was whether
the Land Acquisition Collector was required to pass a positive order either
accepting or rejecting the objections raised under Section 5A of the said Act.
The court held that the obligation upon the Collector was to hear the
objection, hold an enquiry and thereafter submit a report after making his
recommendations on the objections. Although Mr. Galib cited the said
decision, I find that the decision rather supports the contention of the
petitioners as the Court held that hearing, enquiry and recommendation on
the objections were sine qua non for the purpose of disposal of proceedings
under section 5A of the said Act.
51. In Patel Gandalal Somnath and others vs. State of Gujarat and
others reported in AIR 1963 Gujarat 50, it was held as follows:-
"12. The other equally important purpose which the enquiry was
intended to serve was to give an opportunity to persons interested in
the land to put forward their point of view supported by such material
as they liked to show that the land was not needed for a public
purpose and that the proposal for acquisition initiated by the
Government by issue of the notification under Section 4(1) should not
culminate into any definite proceeding for acquisition of the land but
should be dropped. It is only fair and just that before persons
interested in the land are deprived of their interest in the land they
should have an opportunity of showing that the land is not needed for
public purpose or for a Company and that notification under Section
6(1) should not be issued for the acquisition of the land. The inquiry
under Section 5A affords such an opportunity to persons interested in
the land. If there were no provision, for an inquiry and the notification
under Section 6(1) could be issued without an inquiry merely on the
basis of the subjective satisfaction of the Government, persons
interested in the land would not have an opportunity as of right to
place before the Government their point of view supported by such
materials as they can produce relating to the matter in respect or
which the Government has to arrive at a satisfaction and without
such point of view being brought to the notice of the Government and
such material being placed before the Government, it is possible that
the Government might wrongly arrive at the satisfaction that the land
is needed for a public purpose or for a Company and issue the
notification under Section 6(1) entailing deprivation of the property to
the petitioners, which the Government would not have done if all the
material facts had come to its knowledge. The Legislature, therefore,
provided a safeguard in the shape of an inquiry under Section
5A enabling persons interested in the land to make objections to the
acquisition and providing for hearing of such objections at the inquiry
so that persons interested in the land can place before the
Government their point of view regarding the matter on which the
Government has to arrive at a satisfaction together with such material
as they like in support of their point of view in order that the
Government may be apprised of all the facts and circumstances
relating to such matter and the Government may not erroneously
arrive at a satisfaction leading to the issue of the notification
under Section 6(1) for the acquisition of the land."
52. Manimegalai (supra) and Saktipada (supra) are not dealt with as it
was no body's case that the purpose for which the lands were acquired was
not a 'public purpose'.
53. The decisions of the Apex Court in Bharat Singh and others vs.
State of Haryana and others reported in (1988) 4 SCC 534 and Banku
Behari Dutt, vs. State of West Bengal reported in AIR 1976 Calcutta
393, cited by Mr. Galib are distinguishable on facts. The Land Acquisition
Collector in the case in hand not to only failed to give a proper opportunity
to the petitioners to place their objections but also did not proceed in
accordance with the statutory provisions by holding an enquiry on the
factual objections, before making the recommendation. The grounds of
objections were not considered. Moreover, the order dated March 31, 2011
by which the objection was disposed of was not served upon the petitioners
and the petitioners came to know of the same as late as in July 2019, when
the affidavit-in-opposition was filed by the state respondents. By that time,
the acquisition was complete and the said project was also near completion.
The respondents have thus acted in violation of the principles of natural
justice and also contrary to the provisions of Sections 5A(2) and 6(1) of the
said Act.
54. In view of the judicial pronouncements which are discussed above
and the facts of this case, I am of the view that the order dated March 31,
2011 is bad in law and was passed in violation of the principles of natural
justice. The authorities concerned before making a declaration under
Section 6(1) of the said Act were required to take an appropriate decision on
the objections. The said order does not reflect any consideration of the
objections raised by the petitioners. The order also does not reflect that the
petitioners were allowed to argue their case. The adjournment prayed for by
the petitioners was refused but there is no material before the court which
would show that an enquiry as required under Section 5A of the said Act on
the objection made by the petitioners had been made and that the
recommendation was made by the First Land Acquisition Collector, Kolkata
to the department concerned, after dealing with all the objections raised by
petitioners. At the same time, the appropriate government did not record
any final decision on the objections or the recommendation as required by
law. At least, no such document has been disclosed before this court.
55. Now the contention with regard to the delay in making the
declaration is taken up. With regard to the declaration under Section 6(1) of
the said Act, the statute provides that the declaration should be made
within one year from the date of the publication of the notification under
Section 4(1).
56. Section 6 (1) of the said Act quoted herein below for convenience:-
"6. Declaration that land is required for a public purpose.-
(1) Subject to the provisions of Part VII of this Act, [when
the [appropriate Government] is satisfied, after considering the
report, if any, made under section 5A, sub-section (2)], that any
particular land is needed for a public purpose, or for a Company,
a declaration shall be made to that effect under the signature of
a Secretary to such Government or of some officer duly
authorised to certify its orders [and different declarations may be
made from time to time in respect of different parcels of any land
covered by the same notification under section 4, sub-section (1),
irrespective of whether one report or different reports has or have
been made (wherever required) under section 5A, sub-section (2)]:
[Provided that no declaration in respect of any particular land
covered by a notification under section 4, sub-section (1),-
(i) published after the commencement of the Land Acquisition
(Amendment and Validation) Ordinance, 1967 (1 of 1967), but
before the commencement of the Land Acquisition (Amendment)
Act, 1984, shall be made after the expiry of three years from the
date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition
(Amendment) Act, 1984, shall be made after the expiry of one year
from the date of the publication of the notification:]
[Provided further] that no such declaration shall be made unless
the compensation to be awarded for such property is to be paid by
a Company, or wholly or partly out of public revenues or some
fund controlled or managed by a local authority.
[Explanation 1.- In computing any of the periods referred to in the
first proviso, the period during which any action or proceeding to
be taken in pursuance of the notification issued under section 4,
sub-section (1), is stayed by an order of a Court shall be excluded.]
[Explanation 2.- Where the compensation to be awarded for such
property is to be paid out of the funds of a corporation owned or
controlled by the State, such compensation shall be deemed to be
compensation paid out of public revenues.]"
57. To appreciate the question as to the date from which the time of one
year to make a declaration under Section 6(1) of the said Act, should be
computed, some relevant dates are required to be taken note of. The
notification under Section 4(1) of the said Act with the proposal of acquiring
the said land for construction of Phoolbagan Metro Station under "East-
West Metro Corridor" Project was published in two bengali news papers on
March 24, 2010 and then published in the official gazette on April 9, 2010.
Public notice of the substance of the notification under Section 4(1) in Form
3D was served upon the petitioner on December 27, 2010 and displayed in
the locality on December 28, 2010. December 28, 2010 is the date of
publication of the notification according to the said section. The provision of
Section 4(1) is clear and unambiguous. In this case, the last date of public
notice of the substance of such notification in the locality at a convenient
place, should be reckoned as the starting point for computation of the
period of one year within which the declaration under Section 6(1) should be
made.
58. By a letter dated January 10, 2012 the First Land Acquisition
Collector, Kolkata intimated the Joint Secretary to the Government of West-
Bengal, Land & Land Reforms Department, that the authentication of the
declaration had lapsed and no publication of the same could be done. The
letter is annexed to the affidavit-in-opposition filed by KMRCL.
59. Relevant paragraph of the letter dated January 10, 2012 is quoted
herein below for convenience:
"It reveals that in the instant L.A. Case the publication of Declaration
u/s. 6 will have to be made in all respect i.e. in the E.O. issue of the
Kolkata Gazette, News Papers and on the Spot within 27.12.2011 but
the Declaration u/s. 6 of the L.A. Act-I of 1894 being No. JS-1827/L.A.
dt.28.12.2011 has been authenticated on 28.12.2011 and as such the
said Declaration now appears to have been lapsed.
Under such circumstance, it is not understandable how such
declaration will be published in the above mentioned of L.A.
Proceedings within 27.12.2011."
60. In the order dated March 31, 2010 the First land Acquisition Collector
has stated as follows:-
"The substance of Notification u/s 4 of the L.A. Act-I of 1894 in form
3D has been displayed on the spot at conspicuous place near the
land proposed to be acquired vide this office Notice No.235 dt. 27-12-
2010 and also served upon the interested persons inviting objections
if any, to the acquisition thereof 30 days from the date public notice
of the substance of the Notification was displayed on 28-12-10 in the
locality."
61. Thus, accepting the contention of the state respondents in their
affidavits-in-opposition that the declaration was authenticated within the
period of one year, that is, on December 28, 2011 as the date of
communication of the substance of notification to the Kolkata Municipal
Corporation, that is, December 29, 2010, would be the last date of
publication of the notification under Section 4(1) of the said Act, would
amount to rewriting the statute. It is a well settled principle of law that
nothing could be read into a statutory provision which was plain and
unambiguous. A statute was an edict of the legislature. The language
employed in a statute was the determinative factor of legislative intent. The
first and primary rule of construction is that the intention of the legislation
must be found in the words used by the legislature itself. Thus there is no
scope of reading something else into the provision of Section 4(1) of the said
Act with regard to the last date of the notifications and computation of one
year from that date. In Krishi Utpadan Mandi Samiti (supra), and
Eugenio Misquita (supra), the last date in the series of publications made
under Section 4(1) of the said Act was held to be the relevant date to reckon
the starting point of limitation for the purpose of Section 6(1)(ii). The
communications to local authorities, police etc. do not form a part of the
publication under Section under 4 (1) of the Act.
62. Reference is made to paragraph 13 of the decision of the Five Judge's
Bench of the Hon'ble Apex court in Padmasundara Rao (Dead) (supra),
which is quoted below:-
"11. The rival pleas regarding rewriting of statute and casus omissus
need careful consideration. It is well settled principle in law that the
Court cannot read anything into a statutory provision which is plain
and unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that
the intention of the legislation must be found in the words used by the
Legislature itself. The question is not what may be supposed and has
been intended but what has been said. "Statutes should be construed
not as theorems of Euclid". Judge Learned Hand said, "but words
must be construed with some imagination of the purposes which lie
behind them." (See Lenigh Valley Coal Co. v. Yensavage, 218 FR 547).
The view was reiterated in Union of India and others v. Filip Tiago De
Gama of Vedem Vasco De Gama (AIR 1990 SC 981)."
63. It has been held by the Hon'ble Apex Court in Ashok Kumar (supra),
that the proviso appended to sub-section (1) of Section 6(1) was in negative
terms. It was therefore mandatory in nature and any declaration made after
the expiry of one year from the date of publication of the notification under
Section 4(1) of the said Act would be void and of no effect. Thus the decision
in Durga Pada Mukherjee (supra) does not apply.
64. The decision of Hon'ble Apex Court cited by Mr. Galib in Ganesh Jha
(supra) does not help the respondents, inasmuch as, the decision was given
only on the point whether the acquisition was mala fide or not and the
questions of non compliance of statutory provisions were not the subject
matter of challenge.
65. Moreover it is also seen that not only the Kolkata Municipal
Corporation but also the Officer in Charge of the local police station and
other authorities were served with a copy of the notification subsequent to
the publication in the locality. Service of copies of such notifications upon
the local authorities cannot be treated as the publication and or public
notice as envisaged under Section 4(1) of the said Act. The last date of
publication of the substance of the notification in the locality will be the date
of the publication of the notification. Thus, December 28, 2010, is the date
from which the period of one year from making the declaration should be
computed. The period of one year ended on December 27, 2011.
66. It has been held by the Hon'ble Apex Court in Sriniwas Ramnath
Khatod v. State of Maharashtra and ors. reported in (2002) 1 SCC 689,
that the relevant date for declaration would be the date on which the same
was made in the file and not when published. The earlier decisions of the
Hon'ble Apex Court rendered in Eugenio (supra) and Krishi Utpadan
(supra), with regard to the date of declaration was overruled. In this case
the last publication of the substance of notification under Section 4(1) of the
said Act in the locality was on December 28, 2010. The declaration under
Section 6(1) of the said Act was authenticated in the file of the state
respondents on December 28, 2011. Even if this date is to be taken into
consideration, then the declaration had been made one day after the period
of one year from the last date of publication of the substance of the
notification under Section 4(1) of the said Act had expired. The declaration
has not been made according to the statutory requirement. It is not a
ministerial irregularity but violation of a mandatory provision of the statute.
67. Mr. Galib cited the decision of Hon'ble Apex Court, in Executive
Engineer, Jal Nigam (supra), which does not appear to be relevant in this
context as in that case, the decision pre-supposed a valid acquisition.
68. Now, the contentions of the respondents that the petitioners had
waived their right to challenge the acquisition proceeding is taken up. In the
decision of P.Dasa Muni (supra), the Hon'ble Apex Court held that, 'Waiver'
sometimes was in the nature of an 'election'. It had to be consensual in
nature. It implied meeting of the minds. This court has to assess as a rule of
judicial policy whether from the facts of the case and the documents which
are part of the records, the petitioners were taking inconsistent stands or
not. The court does not find that the petitioners had consciously chosen to
give up or relinquish their challenges to the acquisition proceedings as
contained in this writ petition. The writ petition had been pending before
this court and could not be disposed of within a specific time. In the
interregnum, acquisition had been completed and the award had been
declared. Proceedings were initiated under Section18 of the said Act by the
petitioners but without prejudice to their rights and contentions in the writ
petition, as would be evident from the applications filed before the learned
L.A. Judge itself. Their prayer before the learned L.A Judge for investment of
the award in an interest bearing fixed deposit in a nationalized bank was
also without prejudice to their rights and contentions in the writ petition
and the learned L.A. Judge allowed the same without prejudice and subject
to the decision in the writ petition.
69. The decision of Hon'ble Apex Court in Provash Chandra (supra) cited
by Mr. Galib on the point of waiver is not accepted as in the instant case,
there was no voluntary and intentional relinquishment of a known right.
70. In the decision of Superintendent (Tech. I) (supra), the Hon'ble Apex
Court held that an action of a party without prejudice would mean that no
rights or privileges of the said party concerned were to be considered as
thereby waived or lost. The correct understanding of an action of a party,
"without prejudice", would mean that the said party had not given up any
claim or any challenge before any court of law by performing certain acts
'without prejudice'.
71. In the decision of Vyalikaval House Building Co-op, Soceity
(supra), the Hon'ble Apex Court held that if acquisition had been found to
be totally mala fide or in violation of any statute, any settlement between the
parties on the basis of the tainted notification was of no consequence and
could not validate the illegal notification. When the notification on the basis
of which the land was sought to be acquired stood vitiated, then whatever
money the authorities had paid, was at their own risk, and nothing turned
on the question of delay and acquiescence. No benefit could be derived from
such notification, inasmuch as, once the acquisition was found to be illegal
nothing further remained. The respondents published the award at their
own risk. The proceedings stand vitiated for non-compliance of the statutory
provisions.
72. In Chandrakant Adinath Utture vs. State of Maharashtra and
others reported in (2016) 6 SCC 150, the Hon'ble Apex Court held that
passing of the award by itself did not mean that any illegality in the
proceeding could not be addressed. Thus, the question of waiver does not
arise at all.
73. The acquisition, insofar as, it relates to the lands of the petitioners
covered by the impugned notice under Section 4(1) is illegal and liable to be
set aside. The next question is how the petitioners can be compensated for
having been deprived of their property on the basis of an illegal acquisition.
In view of the fact that the public purpose in this case is of national
importance, namely, construction of the inlet and outlet of Phoolbagan
metro railway station as an integral part of the "East-West Metro Corridor
Project" and the project has been completed, this court does not consider it
justifiable to set aside the acquisition proceeding although, the same has
been found to be bad in law due to statutory non-compliances. However, in
granting relief at the end of a protracted litigation, as in the present case,
the Court cannot be unmindful of facts and events that may have occurred
during the pendency of the litigation. It may at times become necessary to
balance the equities having regard to the fact situation and accordingly
mould the relief(s). How the relief is to be moulded in the light of all the
relevant facts, essentially lies in the realm of the discretion of the courts
whose ultimate duty is to uphold and further the mandate of law.
74. In the decision of Hon'ble Apex Court in Gauri Shankar Gaur and
Others vs. State of U.P. and Others reported in (1994) 1 SCC 92, the
Apex Court having found the proceedings to be invalid, shifted the date of
the notification to the date when the belated declaration was made. As the
project had been completed, the Apex Court directed that the compensation
be calculated on the market value of the land which has considerably
increased after three years. The Hon'ble Apex Court was of the view that an
enhanced amount should be paid to the land loser.
75. In the decision of Ujjain Vikas Pradhikaran vs. Raj Kumar Johri
and Others along with other matters reported in (1992) 1 SCC 328, the
date was shifted to a period of 3 years beyond the original date of
notification as in view of the Hon'ble Apex court, substantial improvement to
the land had been made and the land owners were to be compensated by an
enhanced amount.
76. In the decisions of Hon'ble Apex Court in Haji Saeed Khan and
Others vs. State of U.P. and Others reported in (2001) 9 SCC 513 and in
Competent Authority vs. Barangore Jute Factory and Others reported in
(2005) 13 SCC 477, it was held that the date of notification under Section
4(1) should be shifted to the date when possession of the land was taken by
the authorities.
77. Thus, when the public purpose sought to be achieved had been
implemented and larger public and social interest were involved, the Apex
Court held that the equities were to be adjusted and instead of setting aside
the entire acquisition proceedings, the land owners should be adequately
compensated by shifting the date of notification to a future date as
applicable in each case, on the facts. Such shifting would fetch enhanced
compensation calculated on the basis of the market value of the land on the
date to which the notification was shifted. Such amount was usually higher
as the market value of such land had naturally increased due to passage of
time.
78. The decisions of the Hon'ble Apex Court cited by Mr. Bera, namely,
Soorajmull Nagarmull vs. State of Bihar and Others reported in (2015)
10 SCC 270 and State of Uttar Pradesh and Others vs. Abdul Ali and
Others reported in (2017) 3 SCC 108 are not applicable to the facts of this
case. In Abdul Ali and others (supra), no facts were discussed by the
Hon'ble Apex Court, as to whether possession of the land had been taken
and whether the project had been completed or not. In Soorajmull (supra)
the State was already proposing to initiate a fresh acquisition proceeding as
the earlier proceeding had lapsed and thus the Hon'ble Apex Court directed
that fresh proceedings should be initiated within a particular time frame.
The decision of the Apex Court in K.B. Ramachandra Raje (supra) does
not squarely apply in the facts of this case, insofar as, shifting the date of
the notification to the date of the order of the learned Single Judge is
concerned. The developmental work had not been done. Large part of the
land had been encroached and some parts were vacant. Here, the
construction of the inlet and outlet of the Phoolbagan Metro Railway Station
was completed long time ago and the purpose of the acquisition was of
much greater public interest. The entire acquisition and the construction
was completed during the pendency of the writ petition. The equities must
be balanced and hardship of both the parties should be minimized.
79. In situations similar to the facts of this case, where the acquisition
proceedings were found to be illegal on account of statutory non-
compliances but the project, that is, the public purpose for which the
acquisitions had been done was complete, the Hon'ble Apex Court shifted
the date of the notification under Section 4(1) of the said Act to a future
date, and directed payment of enhanced compensation at the market price
prevailing on such future date. This was done in order to avoid further
complications and problems that would be created in case the proceedings
were set aside. Therefore, weighing the individual interest of the land owners
with the public interest of large number of persons who would be benefited
from such a project, an equitable approach was always adopted by the
Hon'ble Apex Court. Larger social interest, therefore, required the court to
mould the relief in such a manner that would be just and proper. This case
also fits into such a situation.
80. On 1st January 2014, the Act of 2013 came into force. The Land
Acquisition Act, 1894 had been repealed. The acquisition of premises
concerned in this case had been initiated under a law which has since been
repealed and has lost its force. Therefore, in this case, the equities can be
adjusted by directing that the compensation to the land owners be paid as
per the Act of 2013, assuming that the notification under Section 4(1) was
made on the date the "Act of 2013" had come into force i.e. January 1, 2014.
81. In cases where an award pursuant to an acquisition proceeding
initiated under the said Act of 1894 had not been made, the proceedings
could still continue under the Act of 2013. Thus in my opinion, equity would
be balanced if the date of the notification under Section 4(1) of the said Act
is shifted to the date of coming into force of the Act of 2013 i.e. January 1,
2014. The date of taking possession in this case, would not be relevant as
the possession was also taken on 17th April 2013 when the repealed Act was
in force. Once the said Act had been repealed, all further proceedings have
to be followed under the Act of 2013 and as such the date of notification is
shifted to January 1, 2014 and the respondents are directed to pay the
compensation to the petitioners, in terms of the Act of 2013 by calculating
the market value of the property as on January 1, 2014. The claim of
interest and solatium on the amount of compensation so awarded is to be
decided in accordance with the prevailing law that is, the Act of 2013. The
entire exercise should be completed within four months from date of
communication of this order.
82. The awarded amount already deposited before the Learned L.A. Judge
by way of compensation and now invested in an interest bearing fixed
deposit together with the interest accrued, shall be adjusted. I express no
opinion about other statutory rights, if any, available to the parties in this
behalf and the parties will be free to exercise the same, in accordance with
law.
83. The writ petition and the connected application are disposed of. There
shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be
given to the parties, on priority basis.
(Shampa Sarkar, J.)
