The State Of West Bengal & Ors vs Prime Tradecom Pvt. Ltd. & Ors
2022 Latest Caselaw 1656 Cal

           IN THE HIGH COURT AT CALCUTTA
                   Civil Appellate Jurisdiction
                          (Appellate Side)

                          F.M.A 1793 of 2018
                                 With
                        IA No. C.A.N. 2 of 2017
                      (Old C.A.N 11091 of 2017)

                  The State of West Bengal & ors.

                                  Vs.

                 Prime Tradecom Pvt. Ltd. & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                    &
         The Hon'ble Justice Kausik Chanda

For the Appellants/State          : Mrs. Chama Mookherjee, Adv.
                                    Ms. Sucharita Roy, Adv.


For the Respondents               : Mr. Abhrajit Mitra, Ld. Sr. Adv.

Ms. Rajshree Kajaria, Adv.

Mr. Satadeep Bhattacharyya, Adv.

Heard On                          : 02.03.2022, 09.03.2022, 23.03.2022,
                                   24.03.2022

CAV On                           : 24.03.2022

Judgment On                      : 30.03.2022


Arijit Banerjee, J.:

1. This is an appeal against a judgment and order dated July 14, 2017,

whereby W.P. No. 8538 (W) of 2015 was disposed of by directing the First

Land Acquisition Collector, Kolkata, to assess the compensation for the

concerned acquisition afresh under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (in short the '2013 Act') within a period of 8 weeks

from the date of communication of the order.

2. The brief facts of the case are that proceedings were initiated under

the Land Acquisition Act, 1894 (in short 'LA Act'), at the instance of the

Kolkata Metro Rail Authorities (requiring body), for acquiring Premises no.

156B Manicktala Main Road, Kolkata - 700054. The purpose of acquisition

was to utilise the land for setting up an electric sub-station. Notification

under Section 4 of the LA Act was issued on July 8, 2009. Declaration under

Section 6 of the LA Act was made on December 11, 2009.

3. The said acquisition proceedings were challenged by one Anant Shri

Sukhramji Trust and its trustees who were the owners of Premises no. 156B

Manicktala Main Road, Kolkata- 700 084, by filing W.P. No. 175 of 2010. In

the course of hearing of the writ petition, 8 private limited companies which

were obviously under the control and management of the writ petitioners,

filed an application being G.A. No. 1989 of 2010 for being added as party

respondents in the writ petition. The said companies offered Premises no.

157A Manicktala Main Road, Kolkata, for acquisition in the place and stead

of Premises no. 156B. The learned Single Judge added the said companies

as party respondents. The Metro Rail Authorities and CESC limited

inspected Premises no. 157A and were satisfied that the same was suitable

for an electric sub-station to be set up thereat. The learned Single Judge, by

an order dated November 29, 2010, disposed of the writ petition by inter

alia, observing as follows:-

(i) The alternate land being premises no. 157A Manicktala Main

Road, has been inspected both by the Kolkata Metro Railway

Authorities and the CESC Authorities and has been approved by

both the said authorities.

(ii) The Kolkata Metro Railway Authorities and the CESC

Authorities have no objection if Plot no. 157A Manicktala Main

Road, which is adjacent to plot no. 156B Manicktala Main Road, is

offered as an alternate plot for setting up a receiving sub-station of

CESC.

(iii) The Land Acquisition Collector shall take necessary steps for

acquisition of Premises no. 157A Manicktala Main Road

immediately and shall withdraw the notification dated July 8,

2009, and the declaration dated December 11, 2009, in respect of

Premises no. 156B Manicktala Main Road.

(iv) The added respondents shall satisfy the respondent authorities

of their title to the alternate plot before the plot in respect of which

acquisition proceedings have already been initiated, is released.

(v) It is recorded that the writ petitioners and the added

respondents have no objection to the respondent authorities taking

immediate possession of the alternate plot, i.e., Premises no. 157A

Manicktala Main Road, and to immediately commence work of

installation of the electric sub-station thereat.

(vi) In the event it is found that the added respondents do not have

clear title to the alternate plot, the order shall stand vacated.

(vii) The acquisition proceedings shall be completed as

expeditiously as possible.

(viii) Status quo in respect of plot no. 156B shall be maintained till

possession of the alternate plot is made over to the respondent

authorities.

(ix) Subject to the added respondents having clear title over

Premises no. 157A Manicktala Main Road, the respondent

authorities shall take over possession thereof from the writ

petitioners and/or added respondents within 30 working days from

the date of communication of the order.

(x) The order is passed at the suggestion of the parties to the writ

application including the added respondents.

4. There were certain inadvertent errors in the said order which were

corrected by a subsequent order dated January 14, 2011. However, the

substance of the order remained the same as summarised above.

5. As per the direction of the learned Single Judge, proceedings were

initiated by the LA Collector for acquiring Premises No. 157A under the

provisions of the LA Act. Section 4 notification was issued on January 31,

2012. Section 6 declaration was made on April 12, 2013.

6. Notice under Section 9 of the LA Act was served on the owners of the

property under acquisition being the said companies on January 30, 2014.

It appears that the said companies responded to such notice and attended a

couple of hearings before the LA Collector. However, on June 18, 2014, the

said companies made a representation to the LA Collector for assessment of

the compensation payable to them, in terms of the provisions of the 2013

Act which had come into force on January 1, 2014. Alleging that the

Collector was sitting on such representation without considering the same,

the owners of the property approached this Court by filing W.P. No. 4937 (W)

of 2015. The said writ petition was disposed of by an order dated February

24, 2015, the operative portion whereof reads as follows:-

"In such view of it, there is no point in keeping the writ petition

pending in this Court and the same is disposed of by directing the

1st Land Acquisition Collector, Kolkata i.e. the respondent no. 3

herein, to consider and dispose of the representation of the

petitioners dated June 18, 2014 which has been annexed to the

writ petition as 'Annexure P-13' positively within a period of four

weeks from the date of communication of this order according to

the law applicable to the facts of the present case. The respondent

no. 3 shall also verify the stand of the petitioners whether any

award had at all been declared in this case and he shall also

communicate his decision to the petitioners within a week after it

is taken."

7. Pursuant to such order, the Collector gave a hearing to the owners

and passed an order on March 19, 2015, which was communicated to the

owners on March 30, 2015, rejecting the claim of the owners for assessment

of compensation under the provisions of the 2013 Act. The operative portion

of the Collector's order reads as follows:-

"It is obvious that acquisition of 157A, Manicktala Main Road

was initiated consequent to the alternative proposal of the writ

petitioners and consideration of the same by the Hon'ble High

Court in its order dated 14.01.2011 and the said acquisition

proceeding could not be concluded within 31.12.2013. But the

said process of LA is going on and completed up to Section 10 of

the Act I of 1894. The delay made herein is absolutely due to the

petitioners alternative proposal and pendency of the Writ before

the Hon'ble High Court, Calcutta. The earlier plot for acquisition

i.e. 156B, Manicktala Main Road was withdrawn from acquisition

vide Gazette notification dated 12.06.2014 under Section 48 of LA

Act - I of 1894.

In the above context, the claim of the Writ Petitioner in respect

of 157A, Manicktala Main Road demanding higher compensation

as per new Act of 2013 is not at all justified of ethical because the

said plot was proposed for acquisition exchanging the earlier plot

for acquisition i.e. 156B, Manicktala Main Road only as per

proposal of the Writ Petitioners themselves. The delay made herein

is absolutely due to the petitioners alternative proposal and

pendency of the Writ Petition before the Hon'ble High Court,

Calcutta. Their representation dated 18.06.2014 is therefore,

considered and rejected."

8. The aforesaid order of the Collector was challenged by the owners of

the property under acquisition being the said private limited companies by

filing W.P. No. 8538 (W) of 2015 which was disposed of by the order dated

July 14, 2017, which is the subject matter of challenge in this appeal. The

learned Single Judge set aside the Collector's order dated March 19, 2015,

and as indicated above, directed the Collector to assess compensation under

the provisions of the 2013 Act.

9. Appearing for the State of West Bengal, Mrs. Mukherjee, learned

Advocate, submitted that an estimated Award was prepared and

communicated to the owners of the property on August 11, 2014. Thereafter

a final Award was made on April 13, 2015. She submitted that Section 25 of

the 2013 Act prescribed a period of 12 months from the date of publication

of the declaration under Section 19 of the 2013 Act for publication of the

Award. In the present case, the 12 months should be taken to be running

from January 1, 2014, when the 2013 Act came into force. The estimated

Award was prepared within such time period. Publication of the final Award

got delayed because of the initiation of legal proceedings by the owners of

the property. There were no laches or lack of diligence on the part of the

State. The owners of the property being responsible for the delayed

publication of the Award and the Writ Court being a Court of equity, the

owners should not be permitted to take advantage of their own wrong.

10. In support of her submission that the compensation payable to the

owners of the property under acquisition has to be assessed under the

provisions of the LA Act, and not in terms of the provisions of the 2013 Act,

Mrs Mukherjee relied on a decision of the Hon'ble Supreme Court in the case

of Executive Engineer, Gosikhurd Project Ambadi, Bhandara,

Maharashtra Vidarbha Irrigation development Corporation v. Mahesh

& Ors. reported at (2022) 2 SCC 772. I shall revert back to this decision

later in this judgment.

11. Mrs. Mukherjee further submitted that the owners of the property

have accepted the Award published by the Collector as would be evident

from the fact that they have applied under Section 18 of the LA Act before

the Collector for reference of the matter to the concerned Civil Court for

enhancement of the compensation amount. Hence, the owners cannot now

turn around and claim compensation under the provisions of the 2013 Act.

12. Appearing for the respondents, Mr Abhrajit Mitra, learned Senior

Counsel, submitted that the order under appeal is unexceptionable. The

acquisition process was started under the LA Act by issuing Section 4

notification on January 31, 2012. As on January 1, 2014, when the 2013

came into force, no Award under Section 11 of the LA Act had been made.

Accordingly, as per Section 24(1)(a) of the 2013 Act, all the provisions of the

2013 Act relating to determination of compensation shall apply. There is no

error in the order of the learned Single Judge.

13. Mr. Mitra further submitted that the reference case filed by the

respondents herein before the Collector on May 27, 2015, was without

prejudice to their rights and contention in W.P. No. 8538(W) of 2015 which

was pending before the learned Single Judge. He said that the respondents

herein filed such reference case by way of abundant caution before the time

period prescribed therefor in Section 18(2) of the LA Act ran out.

14. I have given my anxious consideration to the rival contentions of the

parties.

15. It is not in dispute that Premises no. 157A Manicktala Main Road has

been acquired by the State. It is not of much relevance any further that

initially Premises no. 156B was sought to be acquired. The parties agreed

that the acquisition should shift from Premises no. 156B to Premises no.

157A and the former plot should be released from acquisition, which has

since been done. It also cannot be in dispute that the respondents, who are

the owners of the acquired property, are entitled to receive compensation for

acquisition of the property. The only question is, how is such compensation

to be assessed? The State says that the compensation should be as per the

provisions of the LA Act and in fact an Award has been made under Section

11 of the LA Act, by the Collector. The respondents contend that assessment

of compensation should be in accordance with the provisions of the 2013

Act. I have already noted the arguments advanced by the respective parties

in support of their respective contentions.

16. Section 24 of the 2013 Act, in so far as the same is material for the

present purpose, reads as follows:-

"(1) Notwithstanding anything contained in this Act, in any case of

land acquisition proceedings initiated under the Land Acquisition

Act, 1894 (1 of 1894);-

(a) Where no award under Section 11 of the said Land

Acquisition Act has been made, then, all provisions of this Act

relating to the determination of compensation shall apply; or

(b) Where an award under said Section 11 has been made,

then such proceedings shall continue under the provisions of

the said Land Acquisition Act, as if the said Act has not been

repealed."

17. Admittedly, the acquisition proceedings in the present case were

initiated under the LA Act by issuance of notification under Section 4 of that

Act on January 31, 2012. The 2013 Act came into effect on January 1, 2014.

It is not in dispute that as on that date no Award under Section 11 of the LA

Act had been made by the Collector. It would inevitably follow that all

provisions of the 2013 Act relating to determination of compensation shall

apply in the present case.

18. Learned Advocate for the State/Appellant relied on the recent

Supreme Court decision in the case of Executive Engineer, Gosikhurd

Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation

Development Corporation (supra). With great respect, that decision does

not help the appellant in any manner whatsoever. The question that fell for

determination in that case as noted in paragraph 1 of the reported

Judgment, was:-

"Whether the two-year period specified under Section 11-A of

the Land Acquisition Act, 1894 ("the 1894 Act" for short) will apply

even after the repeal of the 1894 Act, or the twelve-month period

specified in Section 25 of the 2013 Act will apply for the awards

made under clause (a) of Section 24 (1) of the 2013 Act?"

19. The question was answered in Paragraph 31 of the reported judgment

which reads as follows:-

"31. Consequently, we hold that in cases covered by clause (a) to

Section 24(1) of the 2013 Act, the limitation period for

passing/making of an award under Section 25 of the 2013 Act

would commence from 1-1-2014, that is, the date when the 2013

Act came into force. Awards passed under Clause (a) to Section

24(1) would be valid if made within twelve months from 1-1-2014.

This dictum is subject to the caveat stated in paras 20 to 23

(supra) that a declaration which has lapsed in terms of Section 11-

A of the 1894 Act before or on 31-12-13 would not get revived."

20. Paragraphs 13, 14, 18 and 19 of the said judgment are also very

relevant and are hence reproduced hereunder:-

"13. Sub-Section (1) to Section 24 of the 2013 Act is a non

obstante clause. It confers the provision with an overriding status

over other provisions. Accordingly, in terms of Section 24(1) of the

2013 Act, Section 114 of the 2013 Act as well as Section 6 of the

General Clauses Act will not apply to the extent hindered by

Section 24 (1) of the 2013 Act. The reason is that Section 114 of

the 2013 Act, while accepting the applicability of Section 6 of the

General Clauses Act, makes its application subject to "save as

otherwise provided" in the 2013 Act. Further, Section 6 of the

General Clauses Act itself states that the general savings will not

apply when the legislative intent is contrary.

14. Section 24(1) deals with two specific situations where the

land acquisition proceedings were initiated before the repeal of the

1894 Act, namely: (i) where an award has been made, and (ii)

where an award has not been made. As per Clause (b) to Section

24(1) where an award under Section 11 of the 1894 Act has been

made, the proceedings would continue under the repealed 1894

Act, notwithstanding its repeal. In such cases, the 2013 Act will

not apply. Clause (b) to Section 24 (1) is not applicable in the case

at hand as it is admitted that no award was made on or before 31-

12-2013.

......................................................................

18. In para 295 of Indore Development Authority, the

Constitution Bench held that the 2013 Act operates prospectively.

Further, Section 114 of the 2013 Act effects a repeal but with

certain savings, in accordance with Section 24. Thus, the

acquisition proceedings are preserved under the 1894 Act till the

stage of making of the award. Where an award is not made, the

provisions relating to determination of compensation under the

2013 Act would apply; where the award is made, proceedings

would continue under the provisions of the 1894 Act as if the said

Act has not been repealed. Our interpretation of Section 24(1) of

the 2013 Act respectfully follows this precedent.

19. Clearly, Section 11-A of the 1894 Act and Section 25 of the

2013 Act prescribe two different periods of limitation with adverse

consequences, as on failure to make the award the acquisition

proceedings lapse. The choice is between Section 11-A of the 1894

Act and Section 25 of the 2013 Act. Absence of precise words or

express declaration would not inhibit us from interpreting and

exercising the right choice, keeping in view the language as also

the object and purpose of Clause (a) to Section 24(1) of the 2013

Act. In other words, we have to give effect and meaning to the

underlying intention of Parliament in the words "all the provisions

relating to determination of compensation" under the 2013 Act."

21. Thus, there is no doubt at all that Section 24(1) of the 2013 Act as

interpreted by the Hon'ble Supreme Court, mandates that in the case of

acquisition of land initiated under the LA Act, if no Award has been made by

the Collector Under Section 11 of that Act, prior to the 2013 Act coming into

force, determination of compensation will be in terms of the provisions of the

2013 Act.

22. The State argued that the delay in publication of the Award by the

Collector is attributable to the conduct of the respondents. By challenging

the acquisition proceedings initiated in respect of Premises No. 156B

Manicktala Main Road and later again by challenging the Collector's order

holding that compensation was to be determined in terms of the LA Act, the

respondents delayed the process of finalisation and making of the Award.

There was no delay or laches on the part of the State.

23. With great respect, this argument is wholly unacceptable. Premises

no. 157A was substituted as subject matter of acquisition in the place and

stead of Premises no. 156B by agreement of the parties. The State cannot

complain of it now. Further, the initial challenge by the respondents by filing

W.P. no. 175 of 2010 culminated in the judgment and order dated November

29, 2010 (certain inadvertent errors in the order were corrected by an order

dated January 14, 2011 which did not alter or touch the substance of the

parent order). The said order was passed at the suggestion of the parties.

The order directed that the acquisition proceedings shall be completed as

expeditiously as possible. However, Section 4 notification was not issued

until January 31, 2012, i.e. about 14 months after the court's order. It took

the State another 14 months or more to make the declaration under Section

6 of the LA Act which was made on April 12, 2013. This definitely does not

indicate that the State moved diligently or with any sense of urgency, to

complete the acquisition proceedings on an early date. I am of the view that

the respondents were in no way responsible for the delay in making of the

Award by the Collector.

24. The reliance placed by the State on Section 25 of the 2013 Act is

misconceived. Section 25 merely prescribes the period within which an

Award has to be made under the 2013 Act, which is 12 months from the

date of publication of the declaration under Section 19 of that Act, failing

which, the acquisition proceedings shall lapse. Of course, the appropriate

Government has been given the power to extend the period of 12 months if

in its opinion, circumstances exist justifying the same. Such decision to

extend the time period has to be recorded in writing, has to be notified and

uploaded on the website of the concerned authority. Section 25 of the 2013

Act has been interpreted by the Hon'ble Supreme Court in the case of

Executive Engineer, Gosikhurd Project Ambadi, (Supra) to the effect that

in cases covered by Section 24(1)(a) of the 2013 Act, the limitation period for

making of an Award under Section 25 of the 2013 Act would commence from

1.1.2014. Awards passed under Section 24(1)(a) would be valid if made

within 12 months from 1.1.2014.

25. The other argument of the State that the respondents accepted the

final Award that was made on April 13, 2015, also does not impress me. The

writ petition in which the order impugned in this appeal was passed was

filed on or about April 10, 2015, challenging the Collector's order dated

March 19, 2015, rejecting the contention of the respondents herein that the

provisions of the 2013 Act would apply for determination of the

compensation payable to them. The unequivocal case of the respondents

herein who were the writ petitioners was that the compensation should be

assessed in terms of the relevant provisions of the 2013 Act. Immediately

after filing of such writ petition, on April 13, 2015, the final Award was made

by the Collector following the provisions of the LA Act. The respondents

herein filed a reference case before the Collector on May 27, 2015 raising a

dispute as regards the quantum of the Award. This they did without

prejudice to their rights and contentions in the writ petition that was

pending in the High Court as would appear from Paragraph 37 of the

reference petition which has been brought on record by the State by way of a

supplementary affidavit. Such an act was not unreasonable on the part of

the respondents as the limitation period for filing such reference case

prescribed under Section 18 of the LA Act was running out. The explanation

furnished by the respondents in the course of hearing that the reference

case was filed by way of abundant caution, in case their contention

regarding applicability of the provisions of the 2013 Act for determining the

compensation amount failed, is quite acceptable. It cannot be said that by

filing the reference petition under Section 18 of the LA Act, in the facts and

circumstances of the case, the respondents accepted the Collector's Award

made under Section 11 of the LA Act.

26. It was also contended on behalf of the State that notice under Section

9 of the LA Act was served on the respondents who attended the hearing

before the Collector pursuant to such notice. Even if the respondents did

respond to the Section 9 notice by presenting themselves before the

Collector, that per se cannot be construed to be an act of waiver of their

claim that the compensation in the present case requires to be determined

in terms of the provisions of the 2013 Act. An Act of waiver is required to be

clear and unequivocal and cannot be lightly inferred.

27. I am conscious of the fact that the compensation determined in

accordance with the provisions of the 2013 Act would be significantly higher

than the final Award made by the Collector under Section 11 of the LA Act.

This will impose some financial burden on the State. However, the

concerned officers of the State could have avoided such predicament by

moving with more speed. I have noticed in many cases that officers of the

State holding very responsible positions, discharge their duties indifferently,

perfunctorily, and lackadaisically, causing loss to the State Exchequer. It is

high time that such indolent officers are taken to task by their superiors so

that the other officers in the administration pull up their socks and

discharge their duties diligently and sincerely.

28. I do not find any reason to interfere with the order under appeal which

is hereby affirmed. The First Land Acquisition Collector is directed to assess

and tender for payment the compensation payable to the respondents in

terms of the provisions of the 2013 Act within a period of ten weeks from the

date of communication of this order to him.

29. The appeal and the connected application are accordingly dismissed.

There will be no order as to costs.

30. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(ARIJIT BANERJEE, J.)

I agree.

(KAUSIK CHANDA, J.)