Calcutta High Court (Appellete Side)
Based Mondal vs The State Of West Bengal & Ors on 11 April, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
WPA 31106 of 2014
With
WPA 31108 of 2014
With
WPA 31110 of 2014
Based Mondal
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Amit Kr. Pan
Ms. Tanusri Santra
.....Advocates
For the State : Mr. L.M. Mahato
.....Advocate
Heard lastly on : 11.01.2023
Judgment on : 11.04.2023
Jay Sengupta, J.:
1. These are applications under Article 226 of the Constitution of India
praying for direction upon the respondent authorities to initiate fresh
proceedings under the right to fair compensation and transparency in Land
Acquisition, Rehabilitation and Re-settlement Act, 2013 for the purpose of
determining the compensation in question if the respondents intended to
continue with the possession of the land of the petitioner.
2. As the questions of law involved in all these three writ petitions are
the same, the matters are taken up for hearing together.
3. While WPA 31106 of 2014 pertains to plot no. 473 and subsequent
land acquisition proceeding being APP Case No. 142/02-03, WPA 31108 of
2014 pertains to plot no. 502 and subsequent APP Case No. 142/02-03 and
WPA No. 31110 of 2014 relates to plot no. 518 and subsequent APP Case
No. 143/02-03.
4. Mr. Amit Kumar Pan, learned senior counsel appearing on behalf of
the petitioner submitted as follows. The petitioners' grand-mother Lakejan
Bibi (since deceased) was the recorded owner of the plots of land in
question. After her demise and the death of the petitioners' father
Rahatullah Sk., several persons including the present petitioners became
the owners of the said land. For the purpose of settlement of immigrants,
the State of West Bengal initiated a proceeding under the West Bengal Land
Development and Planning Act, 1948. On 23.02.1956 a declaration under
the Section 6 of the Act was published in the Calcutta Gazette and it was
declared that the said land under Mouza Kulberia was likely needed for
public purpose. On 17.04.1956 the possession of the land was taken over by
the Collector, the respondent no. 2 herein and was handed over to the
District Magistrate, Refugee Rehabilitation Department, the respondent no.
5 herein. Subsequently, the District Magistrate, the respondent no. 5 herein
utilised the said land and other land that was acquired. However, the said
proceedings stood lapsed as no award was made in terms of the statutory
mandate of Section 11A of the Land Acquisition Act, 1894 within
23.09.1986. Treating the said proceeding as lapsed, the Collector initiated
fresh proceedings in respect of such land bearing APP Case Nos. 142/02-03
in WPA 31100 of 2014. WPA 31108 of 2014 pertained to APP Case No.
142/02-03 and WPA No. 31110 of 2014 related to APP Case No. 143/02-03.
Accordingly, notifications under Section 4 of the Act I were issued in April
2003. Thereafter, declarations under Section 6 of the Act I were published
on 13.08.2003. But, the said cases also stood lapsed on 13.08.2005 in view
of Section 11A of the Land Acquisition Act since no award was made within
time. Till date, no compensation whatsoever in respect of the said land had
been paid to the petitioners. The statutory authorities could not hold on to
possession of the land without initiating fresh proceeding under the present
Act of 2013 as the earlier Act of 1894 stood repealed from 1st January 2014
and no proceeding was pending in respect of the said land as on the said
date. Yet, since 24.09.1986 the respondents were forcefully enjoying the
possession of the land without any authority of law. The Affidavit in
Opposition of the State did not controvert the statements made in the writ
petition. The judgment relied upon on behalf of the State in SLP 16631-
16632/2018:Haryana Steel Industries and Ors. Versus Dipak Agarwal and
Ors. had no manner of application in deciding the present writ petition in as
much as the facts and the issues involved were completely different. On the
contrary, reliance was placed on judgment of the Hon'ble Apex Court
reported at (2016) 15 SCC 710: State of West Bengal and Ors. Versus
Aziman Bibi and Ors.
5. Mr. L.M. Mahato, learned senior counsel appearing on behalf of the
State submitted as follows. The petitioner came forward for claiming
compensation in respect of the land whose possession was taken over on
17.04.1956 after a lapse of more than 50 years. As such, the statements
affirmed by the petitioner could not be true to his knowledge. There was no
explanation for the enormous delay in approaching this Court, which was
fatal to the petitioners' cause. It was true that there was no limit to file a
writ petition, but the Courts would have to go into the issue of delay if the
demand was made after lapse of several years. On this reliance was placed
on the decision reported at (2020) 8 SCC 129. A self imposed restraint would
have to be exercised in such cases. On this, reliance was placed on the
decision reported at (2011) 5 SCC 394. In the present case there was a delay
in the second proceeding because of the time required for obtaining approval
from the Cabinet. However, for the proceedings, public notices and Gazette
notifications had indeed been published. As was held in Haryana Industrial
Corporation, SLP (C) No. 166312166 of 2018, for the purpose of Section
24(1) of the 2013 Act, the proceeding ought to be initiated as per the
relevant Land Acquisition Act and only for the determination of the
compensation amount, the provisions of the Act of 2013 shall apply.
6. I heard learned counsels for the parties and perused the writ
petitions, the affidavits and the written notes of arguments.
7. It appears that the petitioner's grand-mother was the recorded owner
of the plots of the land in question. After her demise, several persons
including the petitioners became the owners of the said land. It further
appears that for the settlement of immigrants, the State initiated a
proceedings under the West Bengal Development and Planning Act, 1948.
On 23.02.1956, a declaration was published stating that the land under
Mouza Kulberia was likely needed for public purpose. On 17.04.1956 the
possession of the land was taken over by the Collector, the respondent no. 2
here in. Thereafter, it was handed over to the District Magistrate Refugee
Rehabilitation Department, the respondent no. 5 here in. Subsequently, the
land was utilised. However, the said proceedings stood lapsed as no award
was made in terms of Section 11A of the Land Acquisition Act 1894 within
23.09.1996. Treating the proceeding as lapsed, the Collector initiated fresh
proceedings in respect of such land. Accordingly, notifications were issued
under Section 4 in April, 2003 and declarations were published on
13.08.2003. But, these cases also stood lapsed on 13.08.2005 as no award
was made in time.
8. Although the State had raised a plea that the petitioners could not
claim compensation in respect of the land whose possession was taken over
as far back as in 1956 that is to say, after a lapse of more than 50 years, by
accepting lapsing of the first process of acquisition and by initiating a
second such proceeding in 2003, the respondents had effectively waived the
question of limitation till 2003. Therefore, the effective delay is perhaps not
what the State claims.
9. It is settled law that delay in claims in land acquisition cases may
have to be dealt with more liberally than in respect of other subject matters.
It is further a settled proposition of law there can be no limitation in filing a
writ petition. However, it is also true that a self-imposed restraint would
always have to be exercised in dealing with such delay.
10. After balancing the pros and cons in the instant case, one is
compelled to arrive at a conclusion that the purported delay in claiming
compensation in the present case could not have disentitled the petitioners
from moving the present writ petition in 2014.
11. Admittedly, the respondents had initiated two successive proceedings,
the one in 1956 and the other in 2003. But, due to their own mishandling of
such cases, the proceedings got lapsed as the award could not be declared
in time. The respondent cannot be allowed to utilise and enjoy land
belonging to the other citizens of the country without due process of law and
without paying compensation for the same to the said land losers or their
representatives. The statutory authorities could not hold on to the
possession of the land without initiating a fresh proceeding under the
existing Act of 2013 as the Land Acquisition Act, 1894 had stood repealed
with effect from 1st January 2014 and no proceeding was pending in respect
of such land as on such date.
12. Therefore, there is no other option but to initiate of a fresh proceeding
under the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 for regularising the
process of acquisition and for paying compensation to the owners of the
land or their representatives.
13. In view of the above and in the interest of justice, this Court directs
the respondent authorities to initiate appropriate proceedings under the Act
of 2013 for regularising the acquisition of the land in question, within a
period of four weeks from the date of communication of this order, so that
compensation can be paid to the land losers or other representatives at the
earliest.
14. With these observations, the writ petitions are disposed of.
15. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
S.M
