The State Of West Bengal & Ors vs Zaharun Sk @ Bibi & Ors
2022 Latest Caselaw 6291 Cal

            IN THE HIGH COURT AT CALCUTTA
                        Civil Appellate Jurisdiction

                              (Appellate Side)

                               M.A.T. 725 of 2022
                                      With
                             IA No: C.A.N. 1 of 2022
                                      With
                             IA No: C.A.N. 2 of 2022

                       The State of West Bengal & Ors.

                                          Vs.

                            Zaharun Sk @ Bibi & Ors.

       Before: The Hon'ble Justice Arijit Banerjee

                          &
                   The Hon'ble Justice Rai Chattopadhyay


 For the State/Appellants                       : Mr. Susovan Sengupta,Adv.
                                                 Mr. Subir Pal, Adv.



For the Writ Petitioner/Respondent No.1         : Mr. Partha Pratim Roy, Adv.

Mr. Anirban Das, Adv.

Hearing Concluded on                            : 23.08.2022



Judgment On                                     : 06.09.2022



Rai Chattopadhyay, J.:



                             CAN 1 of 2022

The appellant has filed an application being no. CAN 1 of 2022

under Section 5 of the Limitation Act, 1963. In the said application the

appellant has prayed for the relief that delay of 878 days, in filing the

appeal may be condoned and the appeal may be admitted.

The appellant has stated inter alia that it being a department of

Government of West Bengal, there has been some delay due to the

departmental processes, to prepare the appeal papers and by this way

the delay of 878 days occurred.

The appellant had served copy of the application to the

respondents. Affidavit of service is kept with the record.

The reason shown for delay in filing the present appeal being

sufficient, appellant's prayer under the said application, i.e, CAN 1 of

2022 is allowed.

Delay in filing the present appeal of 878 days is condoned. Appeal

is admitted.

CAN 1 of 2022 is disposed of.

MAT 725 of 2022 with CAN 2 of 2022

(1) The appeal and the application for stay of operation of the

impugned order, are taken up.

(2) The State of West Bengal is the appellant challenging the

judgment and order dated 13th December, 2019, passed by the

Ld. Single Judge, in W.P. No. 6672 (w) of 2019. The said writ

petition was filed by the present respondent No.1 Zaharun Sk @

Bibi, challenging the alleged inaction of the appellants in

considering the written representation of the writ

petitioner/respondent dated 10th September, 2018.

(3) The matter relates to acquisition of land belonging to the

predecessor in interest of the writ petitioner/respondent,

namely Sk. Giyassuddin, by the State authorities. An award

dated 30th November, 2015 was made and compensation was

paid to him to the tune of Rs. 2,23,242/- for the acquired land.

According to the appellant, the land owner died within a very

short span of time from the date of issuance of notice to him

and did not have the opportunity to raise objections against the

assessment of land value. The writ petitioner/respondent says

that the land was comprised of construction and valuable trees,

which were not taken into consideration by the appellant

authorities, while assessing compensation for the acquired land.

(4) Factual background of the case is required to be narrated in a

nut-shell, which is as follows :

(i) Sk. Giasuddin was the owner of and in possession of

plot No.981 at Mouza - Baliara, under Police Station

Fezergunj Costal, in the district South 24 Parganas.

His name appeared in the record of rights as the

owner of the said plot of land.

(ii) The Government issued a notification under section

4(1) of the Land Acquisition Act, 1894 on 19 th

February, 2013 and the declaration notice under

section 6 of the Land Acquisition Act, 1894, on 24th

October, 2013, in respect of the said plot of land,

along with others. On 10th February, 2016, a notice

was issued to the said land owner under section

12(2) of the said Act, asking him to remain present

on 23rd February, 2016, for accepting the award

money. According to the appellants, the land owner

was neither present nor represented on that date

before the authority. It transpired that in the

meantime on 20th February, 2016, the said land

owner, Giasuddin died.

(iii) The death of the original land owner prompted his

successor, i.e, the writ petitioner/respondent to

present her written representation dated 10 th

September, 2018, indicating the infirmities in

calculation of compensation and requesting the

authority to re-enter the whole exercise of

calculating compensation after taking into account

all relevant factors and determinants and to

calculate the amount of compensation in terms of

the provisions of the Right to Fair Compensation

and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013.

        (iv)       Writ petitioner/respondent was aggrieved that her

                   said    representation       has    ever     remained      not

considered and disposed of, by the appellant

authorities, thereby jeopardizing her rights to the

Constitutional safeguards as well as principles of

natural justice. For remedy of her grievance she filed

the writ petition as mentioned above.

(5) The impugned order dated 13th December, 2019, may also be

reproduced here, as follows :

"Heard learned advocates appearing for the parties. It is the grievance of the petitioner is that he has made a representation dated 10th September, 2018 being Annexure P-5 at page 29 to the writ petition before the respondent no. 4 the Special Land Acquisition Officer, South 24 Parganas, for compensation in connection with the structure and tress over the land in question as appears from the said representation and the same has not been considered by him till date. Considering the submission of the parties, this writ petition is disposed of by directing the respondent no. 4, to consider and dispose of the aforesaid representation dated 10 th September, 2018 in accordance with law and by passing a reasoned and speaking order after giving opportunity of hearing to the

petitioner or his authorized representatives within eight weeks from the date of communication of this order and to communicate his decision to the petitioner within two weeks thereafter.

With the aforesaid direction, the writ petition W.P. 6672 (W) of 2019 is disposed of."

(6) Let us now dwell on the arguments advanced by the respective

parties. Mr. Sengupta, appearing for the appellants has made

very short and curetted submission that, the original land

owner, during his lifetime never participated in the proceedings

during the pre-award period, nor did he appear or was

represented on the stipulated day, in response to the appellant's

notice under section 12(2) of the 1894 Act. According to him the

respondent is now estopped from raising any grievance

whatsoever, against the assessed compensation. According to

him, the appellants have not erred in not considering the

representation of the respondent No.1, which is not

maintainable even otherwise and that by dint of appellant's

action, no right of the respondent/writ petitioner has been

infringed. The appellants have challenged the impugned order

dated 13th December, 2019, for the reason that after due process

of law was exhausted, there would be no relief available to the

respondent/writ petitioner, either in law or equity, including

consideration of her representation made on the self same issue.

Prayer has been made for setting aside the order impugned.

(7) On behalf of writ petitioner/respondent, strong objections have

been grounded. Mr. Partha Pratim Roy appearing for her, has

categorically submitted that after issuance of notice to original

land owner by the authorities under section 12(2) of the 1894

Act and three days before the scheduled date of appearance, the

said person died. Hence, neither he could get any opportunity to

raise any objection against the award nor the respondent's

representation was ever paid any heed to, by the authorities. He

submits that the plot of land owned by the predecessor of his

client used to comprise of a construction as well as several

valuable trees, which factor has been ignored in assessing the

compensation. He submits that his client's right to the said

property has been taken away without compensating her

adequately, thereby depriving her of the valuable rights

guaranteed under the Constitution and also that by not

considering her representation, the authorities have also

violated the principles of natural justice. He supports the

impugned order and seeks affirmation of the same.

(8) As discussed earlier, in respect of the concerned land, notice

under section 4(1) was issued and declaration under section 6 of

the Land Acquisition Act 1894, were made on 19th February,

2013 and 24th October, 2013 respectively. Thereafter on 10th

February, 2016, notice under section 12(2) of the said Act was

issued to the owner. All this was done during the lifetime of the

original owner of land, Sk. Giasuddin. Proceedings were started

being L.A.Case No. 4/31 of 2012-13 dated 24th October, 2013.

There is no record that the original land owner ever participated

in the said proceedings. Thus, he must be deemed to have

accepted the steps taken by the authority at all stages of the

acquisition process. However, he died on 20th February, 2016,

i.e, before the scheduled date of disbursement of awarded

money, i.e, 23rd February, 2016. It is a fact admitted that the

appellant and other legal heirs of the original land owner have

accepted the awarded money to the tune of Rs.2,23,242/-. No

record is available before this court to show that either the

compensation amount arrived at by the authorities was objected

to on whatsoever ground or that the said legal heirs have

accepted the compensation upon reserving their rights and

contentions as regards the same. Under such circumstances,

upon disbursement of the compensation to the land owner/legal

heirs, the entire proceeding has attained finality and all parties

thereto are bound by the final outcome of the said proceedings.

Therefore, there is no scope for the appellant to espouse the self

same cause again, after about two and half years, by way of

presenting her written representation dated 10 th September,

2018, before the authorities. The respondent / writ petitioner

has endeavored to persuade this court about the innocuousness

of her prayer that her written representation should only be

considered by the appellant authority. However, in absence of

her making up a strong prima facie case, she could not even

pray for consideration of her prayer as a matter of right. We find

that the appellants are apt in arguing that the respondent is

estopped from agitating any grievance regarding the issue which

has reached its finality. For the same reason, there would be no

ground for consideration of the prayer of the respondent under

the 2013 Act, as mentioned above.

(9) Ld. Single Judge appears to have erred in failing to consider the

case in its proper perspective. It has not been considered that

the land acquisition proceedings have reached its finality. Also

the order impugned is silent about the unfavorable effect of the

time gap in making the representation by the respondent, which

has rendered the same to be construed as an after thought. In

our view, consideration of representation should not be

mechanically ordered, unless such prayer is backed by strong

prima facie material to show illegality in the actions of the

authority or prejudice or injury suffered by the relief seeker, and

such prayer is made with promptitude, which factors are absent

in this case.

(10) For the reasons aforestated, the present appeal is allowed. As

the respondent/writ petitioner is not found to be entitled to any

relief as prayed for, the impugned order dated 13th December,

2019, is set aside.

(11) Interim order, if any, stands vacated. Connected application, if

any, is also disposed of.

(12) 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.

(Rai Chattopadhyay, J.) (Arijit Banerjee, J.)