Calcutta High Court (Appellete Side)
Ajet Ali Baidya Alias Ajet Baidya ... vs The State Of West Bengal And Others on 20 May, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
M.A.T. No. 202 of 2022
With
I.A. No. C.A.N. 1 of 2022
AJET ALI BAIDYA ALIAS AJET BAIDYA AND OTHERS
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS
For the appellants : Mr. Siddhartha Ruj, Adv.
For the State : Mr. Lalit Mohan Mahata, Adv.,
Mr. Prasanta Behari Mahata, Adv.
Hearing concluded on : 28.02.2022
Judgment on : 20.05.2022
2
Kausik Chanda, J.:-
This appeal is arising out of an order dated December 22, 2021, whereby
a learned Single Judge has dismissed the writ petition.
2. In the writ petition, the writ petitioners prayed, inter alia, for a
declaration that the Land Acquisition Case No.4/34 of 1999-2000 stood lapsed
and prayed for a direction to put the petitioners in possession of their
respective plots of land. In the alternative, it was prayed that the respondents
be directed to acquire the petitioners' land and to pay compensation in terms of
the "present Land Acquisition Act."
3. The petitioners made out a case that they were settled with different
plots of vested land by the State of West Bengal. The petitioners alleged that
the said lands of the petitioners along with other contiguous plots were
acquired by the State under the Land Acquisition Act, 1894. The petitioners
claimed that though they were "Raiyats", no award was published in their
name and no compensation was paid to them.
4. The writ petition was dismissed by an order dated July 4, 2016, by a
learned Single Judge of this Court observing, inter alia, that such dismissal will
not cause prejudice to the rights of the petitioners in pursuing their respective
claims in accordance with law before the appropriate forum.
3
5. The writ petitioners challenged the said order before a Division Bench by
preferring an appeal being M.A.T. 1368 of 2016, which was disposed of on
November 2, 2017.
6. The operative part of the said order dated November 2, 2017, is quoted
below:
"Section 18 of the Land Acquisition Act, 1894
provides for such a reference at the instance of any
person interested who has not accepted the award.
Such interested person may, by written application to
the Collector, require that the matter be referred by
the Collector for the determination of the Court,
whether his objection be to the measurement of the
land, the amount of compensation, the persons to
whom it is payable, or the apportionment of the
compensation among the persons interested.
"Person interested" has been defined in Section
3(b) of the Land Acquisition Act, 1894 which runs as
follows:-
"Section 3(b) - the expression "person
interested" includes all persons claiming an
interest in compensation to be made on account
of the acquisition of land under this Act; and a
person shall be deemed to be interested in land
if he is interested in an easement affecting the
land."
In view of the said definition clause, we have no
hesitation to hold that the writ petitioners/appellants
being persons interested can apply for such a
reference under Section 18 of the Land Acquisition
Act, 1894. However, since the time limit for seeking
such reference before the Collector has already
expired, we, by relaxing such time limit, permit the
writ petitioners/appellants to submit such an
application before the concerned Collector within four
weeks from date and in the event, such an application
is submitted by the writ petitioners/appellants before
the concerned authority within the time as fixed above,
4
the concerned authority will consider the same in
accordance with law within four weeks from date."
7. The writ petitioners, thereafter, sought a review of the said order by filing
a review application being R.V.W. 272 of 2017.
8. The said review application was disposed of by an order dated September
25, 2019, directing the writ petition to be heard again to examine afresh as to
whether the Land Acquisition Case No.4/34 of 1999-2000 stood lapsed.
9. It was observed in the said review order dated September 25, 2019, as
follows:
"...
7. We find from the order passed by the learned Single
Judge as well as the order passed by the coordinate
Bench under review that there has been no
determination in respect of prayer "a" quoted supra
seeking declaration that Land Acquisition Case being
L.A. 4/34 of 1999-2000 stood lapsed.
8. Mr. Mahata, learned advocate for the respondents
concedes that it is only the High Court that can grant
the declaration as prayed for if an appropriate case is
set up therefor and that such a declaration cannot be
had from the forum under section 18.
9. The basic question raised by the petitioners with
regard to validity of the proceedings not having been
addressed by the learned Single Judge as well as the
coordinate Bench, we are of the considered opinion
that the petitioners have set up sufficient ground for
review of the order dated 2nd November, 2017. ..."
10. The learned Single Judge recorded the contention of the writ petitioners
to the effect that they acquired right, title, and interest over the plots in
question by virtue of settlement deeds executed by the Government of West
5
Bengal in their favour on April 25, 1984. The lands in question were acquired
in Land Acquisition Case No.4/34 of 1999-2000 for the purpose of construction
of a leather complex though the possession of the land was taken in the year
1993. The petitioners were not served with any notice under Section 9(3A) of
the Land Acquisition (West Bengal Amendment) Act, 1997 or Section 12(2) of
the Land Acquisition Act, 1894, and no compensation was also paid to them.
The Land Acquisition Case No.4/34 of 1999-2000, therefore, stood lapsed in
view of Section 11A of the Act of 1894. The petitioners, therefore, are entitled to
be compensated at the present market value of the land in terms of the extant
land acquisition Act being Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013.
11. The State filed a report in the form of an affidavit before the learned
Single Judge.
12. The said report suggests that the land was initially for the purpose of
establishment of Calcutta Leather Complex and a notice of requisition under
Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948
was issued on November 17, 1993. The possession of the land was also taken
and made over to the requiring body on November 26, 1993. After the issuance
of notice under Section 3(1) of the West Bengal Land (Requisition and
Acquisition) Act, 1948, a further notice was issued under Section 4 (1a) of the
said Act to acquire the said land. The said proceedings, however, could not be
completed in view of a writ petition filed by one Ziad Ali Molla. Subsequently,
the present Land Acquisition Case No.4/34 of 1999-2000 was initiated and a
6
notice under Section 9(3A) of the Land Acquisition (West Bengal Amendment)
Act, 1997 was issued on August 12, 1999, following which enquiry under
Section 9 (3A) of the said Act was conducted locally on 21 st, 22nd, and 29th
September, and 24th, 26th, and 29th November 1999.
13. Thereafter, the award was published and payment was made to the
awardees in the month of January 2001, except the serial nos. 66, 67, and 70
of the award. The State has, further, disclosed in the affidavit that some
interested persons raised objections with regard to the compensation and as
such, the compensation money, amounting to Rs. 5,03,981.14/-, was not paid
and deposited in the Court of learned Land Acquisition Judge, Alipore on
March 10, 2006. The rest of the awardees were paid compensation. The
petitioners did not submit any objection against such payment. Objections
were received from the petitioners after the date of payment and deposition of
compensation money to the Court of the learned Land Acquisition Judge,
Alipore. The petitioners made their first attempt to get compensation by way of
an application under the Right to Information Act, only on May 28, 2015. The
petitioners did not produce their patta claiming their right to get compensation
in respect of the lands in question, which are vested land of the Government
and they also failed to raise any objection prior to making payment of
compensation of money to the awardees. At such a belated stage without any
explanation of the delay and their lapses, the writ petition is not maintainable.
14. It was the, further, case of the State that the provisions of the Act of
2013 do not apply in the instant case as the award has already been declared,
7
compensation has been paid to the awardees, and the rest of the compensation
money has been deposited in the Court of the learned Land Acquisition Judge,
Alipore.
15. The learned Single Judge after considering the respective stand of the
parties held that in view of Section 24 (2) of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013, it cannot be said that the proceeding has lapsed.
16. Learned Judge, further, observed that the possession of the land was
taken in the year 1993 and made over to the requiring body to the knowledge of
the petitioners. Since then the petitioners remained dormant. They submitted
representation before the authority only in 2015 and filed the present writ
petition in 2016. Placing reliance upon the observations of the Supreme Court
in the case reported at (2020) 8 SCC 129 (Indore Development Authority v.
Manoharlal), the learned Single Judge dismissed the writ petition holding that
no reasonable explanation being given by the petitioners for such inordinate
delay, the Court should not go into the stale demand of the petitioners after the
lapse of years.
17. The documents disclosed in the affidavit filed by the State before the
learned Single Judge show that compensation amount was paid to the different
landowners in the month of January 2001.
18. Section 11A of the said Act of 1894 along with the State amendment is
quoted below :
8
"[11A. Period within which an award shall be
made.--(1) The Collector shall make an award under
section 11 within a period of two years from the date of
the publication of the declaration and if no award is
made within that period, the entire proceedings for the
acquisition of the land shall lapse:
Provided that in a case where the said
declaration has been published before the
commencement of the Land Acquisition (Amendment)
Act, 1984, the award shall be made within a period of
two years from such commencement.
Explanation.--In computing the period of two
years referred to in this section, the period during
which any action or proceeding to be taken in
pursuance of the said declaration is stayed by an order
of a Court shall be excluded.]
STATE AMENDMENT
West Bengal. --In section 11A, after the proviso,
insert the following proviso, namely:--
"Provided further that in respect of the
acquisition of the land referred to in sub-section
(3A), and sub-section (3B) of section 9, the
award shall be made within a period of two years
from the date of the issue of the public notice
under section 9."
19. In this case date of publication of notice under Section 9(3A) was on
August 12, 1999, and the award was published within two years from the said
date. Therefore, there cannot be any lapse of proceedings in view of the
amended provision of Section 11A of the Land Acquisition Act, 1894.
20. We are, therefore, of the opinion that the issue, on which the case was
remanded to the writ petitioners as to whether the proceeding has lapsed, has
been rightly answered by the learned Single Judge.
21. We are, however, of the opinion that there might be some delay on the
part of the petitioners in approaching this Court, but since the right to property
9
is a valuable right flowing from Article 300A of the Constitution of India, merely
on the ground of delay the State cannot deny its obligation to compensate the
petitioners.
22. The State, in its affidavit, admitted the fact that the petitioners are
"patta" holders in respect of the vested land of the State. The State does not
deny that lands belonging to the petitioners were acquired. The State also did
not deny the fact that adjoining plot owners whose lands were acquired for the
purpose of construction of the Calcutta Leather Complex were given
compensation. The only ground that has been taken by the State to deny the
claim of the writ petitioners is that they failed to verify their names as awardees
by showing patta along with possession.
23. It is immaterial that the possession of lands in question was taken in the
year 1993 without any acquisition. Fact remains that the acquisition
proceeding was revived only in the year 1999, by the issuance of a notice under
Section 9(3A) of the Land Acquisition Act, 1894 as amended by the West
Bengal State Amendment Act. The writ petitioners approached this Court in the
year 2005. Therefore, delay, if any, in this case, is not as fatal so as to frustrate
a claim for compensation which is guaranteed under Article 300A of the
Constitution of India.
24. In the case reported at (2020) 2 SCC 569 (Vidya Devi v. State of
Himachal Pradesh) the Supreme Court directed payment of compensation in
favour of the appellant therein, who filed a writ petition before the Himachal
10
Pradesh High Court in the year 2010 for payment of compensation against the
land, possession of which was taken by the State in the year 1967. It was held,
inter alia, as follows:
"12.8. The contention of the State that the appellant
or her predecessors had "orally" consented to the acquisition
is completely baseless. We find complete lack of authority
and legal sanction in compulsorily divesting the appellant of
her property by the State.
...
12.12. The contention advanced by the State of delay
and laches of the appellant in moving the Court is also liable
to be rejected. Delay and laches cannot be raised in a case of
a continuing cause of action, or if the circumstances shock
the judicial conscience of the Court. Condonation of delay is
a matter of judicial discretion, which must be exercised
judiciously and reasonably in the facts and circumstances of
a case. It will depend upon the breach of fundamental rights,
and the remedy claimed, and when and how the delay arose.
There is no period of limitation prescribed for the courts to
exercise their constitutional jurisdiction to do substantial
justice.
12.13. In a case where the demand for justice is so
compelling, a constitutional court would exercise its
jurisdiction with a view to promote justice, and not defeat it.
[P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 :
1975 SCC (L&S) 22]
...
13. In the present case, the appellant being an
illiterate person, who is a widow coming from a rural area
has been deprived of her private property by the State
without resorting to the procedure prescribed by law. The
appellant has been divested of her right to property without
being paid any compensation whatsoever for over half a
century. The cause of action in the present case is a
continuing one, since the appellant was compulsorily
expropriated of her property in 1967 without legal sanction
or following due process of law. The present case is one
where the demand for justice is so compelling since the State
has admitted that the land was taken over without initiating
acquisition proceedings, or any procedure known to law. We
exercise our extraordinary jurisdiction under Articles 136
and 142 of the Constitution, and direct the State to pay
compensation to the appellant."
25. The same view has been reiterated by the Supreme Court in a recent
judgment reported at (2022) SCC OnLine SC 410 (Sukh Dutt Ratra v. State
of Himachal Pradesh).
26. In that case the Supreme Court directed to pay compensation to the
appellants who filed the writ petition after 38 years against the State. In that
case, the Supreme Court was also approached after about six years after the
order passed by the Himachal Pradesh High Court in the year 2013. Negating
the contention advanced on the behalf of the State of Himachal Pradesh as to
the delay and laches the Supreme Court held as follows:
"16. Given the important protection extended to an
individual vis-a-vis their private property (embodied
earlier in Article 31, and now as a constitutional right
in Article 300-A), and the high threshold the State
must meet while acquiring land, the question remains
- can the State, merely on the ground of delay and
laches, evade its legal responsibility towards those
from whom private property has been expropriated? In
these facts and circumstances, we find this conclusion
to be unacceptable, and warranting intervention on
the grounds of equity and fairness.
17. When seen holistically, it is apparent that the
State's actions, or lack thereof, have in fact
compounded the injustice meted out to the appellants
and compelled them to approach this court, albeit
belatedly. The initiation of acquisition proceedings
initially in the 1990s occurred only at the behest of the
High Court. Even after such judicial intervention, the
State continued to only extend the benefit of the
court's directions to those who specifically approached
the courts. The State's lackadaisical conduct is
discernible from this action of initiating acquisition
proceedings selectively, only in respect to the lands of
those writ petitioners who had approached the court in
earlier proceedings, and not other land owners,
pursuant to the orders dated 23.04.2007 (in CWP No.
1192/2004) and 20.12.2013 (in CWP No. 1356/2010)
respectively. In this manner, at every stage, the State
sought to shirk its responsibility of acquiring land
required for public use in the manner prescribed by
law.
18. There is a welter of precedents on delay and laches
which conclude either way - as contended by both
sides in the present dispute - however, the specific
factual matrix compels this court to weigh in favour of
the appellant-land owners. The State cannot shield
itself behind the ground of delay and laches in such a
situation; there cannot be a 'limitation' to doing
justice. This court in a much earlier case -
Maharashtra State Road Transport
Corporation v. Balwant Regular Motor Service, held:
"Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical
doctrine. Where it would be practically unjust to
give a remedy, either because the party has, by
his conduct, done that which might fairly be
regarded as equivalent to a waiver of it, or where
by his conduct and neglect he has, though
perhaps not waiving that remedy, yet put the
other party in a situation in which it would not
be reasonable to place him if the remedy were
afterwards to be asserted in either of these
cases, lapse of time and delay are most material.
But in every case, if an argument against
relief, which otherwise would be just, is founded
upon mere delay, that delay of course not
amounting to a bar by any statute of limitations,
the validity of that defence must be tried upon
principles substantially equitable. Two
circumstances, always important in such cases,
are, the length of the delay and the nature of the
acts done during the interval, which might affect
either party and cause a balance of justice or
injustice in taking the one course or the other,
so far as relates to the remedy."
27. We are of the opinion that justice will be sub-served if the State is
directed to pay compensation to the appellants as has been paid to the
similarly circumstanced persons whose lands have been acquired and who
have been paid compensation following the L.A. Case No. 4/34 of 1999-2000.
28. In that view, we direct the State to verify as to whether the appellants
have interest in the lands in question and whether the said lands have been
acquired and utilised for the purpose of the Calcutta Leather Complex project.
The persons interested in the lands including appellants should be heard by
the State at the time of undertaking such exercise.
29. If the answers are found in the affirmative, the State shall pay
compensation to the appellants in terms of the award passed in the L.A. Case
No.4/34 of 2019-2000 along with all statutory benefits within a period of two
months from the date of communication of this order treating it as a case of
deemed acquisition.
30. Accordingly, M.A.T. No. 202 of 2022 and I.A. No. C.A.N. 1 of 2022 are
disposed of.
31. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite formalities.
I agree.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
