Reliance Projects And Property ... vs District Magistrate And ...
2022 Latest Caselaw 1146 Cal

                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                              (Appellate Side)

                                                    MAT 218 of 2022
                                                        With
                                                     CAN 1 of 2022

                                                    (Through Video Conference)

                                                    Reserved on: 01.03.2022
                                                    Pronounced on: 11.03.2022


Reliance Projects and Property Management Services Limited

                                                                     ...Appellant

                                      -Vs-

District Magistrate and Collector, Nadia, Land Acquisition Section (NHAI) & Ors.

                                                                     ...Respondents

Present:-

Mr. Mainak Bose, Mr. V.V.V. Sastry, Mr. Tridib Bose, Mr. Sourav Roy, Advocates ... for the appellant

Mr. Jahar Lal De, Mr. Supratim Bhar, Advocates ... for the State Mr. Shamit Sanyal, Ms. Manika Roy, Advocates ... for the NHAI

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. This appeal is at the instance of the writ petitioner challenging the

order dated 07.02.2022 passed by the learned Single Judge in W.P.A. 7315

of 2021.

2 MAT 218 of 2022

2. Appellant had approached the writ Court challenging the order dated

5th of February, 2021 passed by the respondent No. 2 and also seeking

quashing of the report dated 21st of January, 2021 issued by the BL&LRO.

3. The brief facts are that the petitioner had purchased a part of a four

storeyed building situated at Mouza - Pumlia pertaining to R.S., L.R.

Khatian No. 1383, L.R. Dag No. 271 under Tatla - 2 Gram Panchayat from

Debashis Chakraborty by conveyance executed on 5th of February, 2015

but prior to that sometime in the year 2010 out of the total area of 7 decimal

of land, highway authority had already acquired 3 decimal of land. Since,

the appellant had purchased the acquired area, therefore, proceedings were

initiated. Original owner Debashis Chakraborty had filed the writ petition

W.P.A. 10416 of 2020 which was withdrawn without any liberty to file a

fresh petition. Debashis Chakraborty was paid compensation for the entire

area acquired from him. The appellant had initially filed W.P. No. 24357

(W) of 2019 which was disposed of by order dated 30th of December, 2019

directing the Additional District Magistrate (Land Acquisition), Nadia to

decide the representation of the appellant after giving opportunity of

hearing to the concerned parties and to take a reasoned decision and also

directing the parties to maintain status quo till the decision is taken. The

competent authority thereafter had passed the order during that the disputed

portion was acquired and, therefore, directing eviction of the appellant from

that portion. The appellant had questioned the order dated 11th of

November, 2020 passed by the competent authority by filing W.P.A. No.

9435 of 2020. The writ petition was allowed and order dated 11th of

November, 2020 was set aside because the report of measurement could not

be produced before the Court. The writ Court had again directed the

competent authority to reconsider the matter after hearing both the sides 3 MAT 218 of 2022

and to decide after considering all the relevant material by a reasoned order

in accordance with law. The competent authority thereafter had passed the

order which was subject matter of challenge in the writ petition. The

competent authority found that the encroachment lies on the acquired area

of 330.20 sq.ft. (0.76 decimal) by way of permanent structure. The said

order also reveals that the identification of the encroached construction was

done after verification of the plot on 21.01.2021 in the presence of all the

parties. Accordingly, the direction was issued to remove/demolish the

permanent structure on an area about 330.20 sq.ft. (0.76 decimal) which

was an encroachment over the acquired land of 0.0301 acre under plot No.

271. This order was impugned in the writ petition and learned Single Judge

by assigning detailed reasons has disposed of the petition.

4. Submission of the learned Counsel for the appellant is that while

carrying out the measurement only the alleged acquired portion has been

measured, but the unacquired portion has not been measured, therefore,

correct position has not been ascertained. He has further submitted that the

writ Court could have gone into the disputed questions of facts to ascertain

that constructed area is on unacquired land and in this regard he has relied

upon the judgment of the Hon'ble Supreme Court in the matter of Hari

Krishna Mandir Trust vs. State of Maharashtra and Others, (2020) 9

SCC 356.

5. Learned Counsel for the State has opposed the petition by submitting

that the land in question was already acquired in the year 2010, due

compensation was paid and in the verification of spot, construction in

question has been found to be on the acquired land, therefore, the order of

the learned Single Judge does not suffer from any error.

4 MAT 218 of 2022

6. Learned Counsel for the NHAI has also submitted that because of the

present dispute the project has been held up and that the due measurement

on the spot has been done by the competent authority and has referred to

the alignment line in the map to show that the construction in question falls

in the acquired area.

7. Having heard the learned Counsel for the parties and on perusal of the

record, it is noticed that learned Single Judge has examined each and every

aspect of the matter in detail. 3 decimal of land out of 7 decimal was

acquired from the original owner Debashis Chakraborty and due

compensation was paid to him in the year 2010. The writ petition filed by

the original owner has also been dismissed as withdrawn without any

liberty to file a fresh petition.

8. In the earlier two rounds of litigation requisite directions were issued

to decide the petitioner's representation and also to do measurement in the

presence of all the parties. In compliance thereof the measurement has been

done by the competent authority and the encroached area falling in the

acquired area has been ascertained. No error has been committed by the

learned Single Judge in taking the view that the issue raised by the

appellant questioning the report and the impugned order of the competent

authority on the ground that the area purchased by him was not acquired, is

a factual dispute which need not be gone into in the writ jurisdiction. So far

as the reliance of the learned Counsel for the appellant in the case of Hari

Krishna Mandir Trust (supra) is concerned, there is no dispute to the

proposition that in appropriate case the High Court can entertain the

petition under Article 226 involving disputed questions of facts but present

is not one such case. It is also worth noting that on account of the repeated 5 MAT 218 of 2022

rounds of litigation by the appellant, the project has been held up and

public interest is adversely affected.

9. In the above circumstances, learned Single Judge has committed no

error in refusing to set aside the order of the competent authority as well as

the report. We find no illegality in the order of the learned Single Judge.

The petition is accordingly dismissed.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE

Kolkata 11.03.2022 ________ PA(SS)

(A.F.R. / N.A.F.R.)