Ranjan Banerjee & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 2437 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                             APELLATE SIDE


  The Hon‟ble JUSTICE SUVRA GHOSH


                              W.P.A. 6843 of 2022

                            Ranjan Banerjee & Ors.
                                      Vs.
                          State of West Bengal & Ors.



  For the Petitioners:                 Mr. Amit Kumar Pan, Adv.
                                       Mrs. Tanusri Santra, Adv.,

  For the State:                       Mr. Susovan Sengupta, Adv.
                                       Mr. Soumitra Bandyopadhyay, Adv.
                                       Mr. Ram Chandra Guchait, Adv.,




  Hearing Concluded on:                28.03.2023


  Date:                                11.04.2023




SUVRA GHOSH, J. :-

1. The prayers of the petitioners are hereunder:-


  "(a) A writ in the nature of Mandamus commanding the respondents to

rescind and/or withdraw the impugned order dated 10.03.2022 being

„Annexure-P/8‟ herein, forthwith;

(b) A writ in the nature of Mandamus commanding the respondents to pay

the compensation money so awarded in respect of the said land to the

petitioners, forthwith;"

2. It is contended on behalf of the petitioners that the petitioners are recorded

owners of the plots in question situated in Mouza - Patharpratima, J.L. No.

213, Police Station - Patharpratima (at present Gobardhanpur Costal),

District- South 24 Parganas. The plots were acquired by the State

Government for the purpose of reconstruction of Aila affected Sundarban

embankment vide LA Case No. 4/6 of 2012-13 and possession of the land

was taken over on 12th July, 2012 upon invoking section 17 of the Land

Acquisition Act, 1894. Notice under section 4 of the Act was published on

12th July, 2012. Declaration under section 6 of the Act was published on

27th December, 2012. No compensation was paid to the petitioners despite

making several visits to the office of the respondents and on 27th September,

2020 the petitioners learnt that award was declared way back on 12th

December, 2013. The petitioners made a representation before the Special

Land Acquisition Officer on 5th October, 2020 for disbursement of

compensation and were called for a hearing by the Additional Land

Acquisition Officer on 15th October, 2020. No further communication was

made to the petitioners by the State respondents for which the petitioners

were constrained to approach this Court in a writ petition being W.P.A. No.

20853 of 2021. By an order passed on 4th December, 2022 this Court

directed the concerned authority to consider and dispose of the

representation submitted by the petitioners within a period of two months

from the date of communication of the order after affording reasonable

opportunity of hearing to all the interested parties including the petitioners,

in accordance with law. Pursuant to the said direction, the concerned

authority, being the Special Land Acquisition Officer, South 24 Parganas,

Alipore, took up the matter for hearing and by an order passed on 10th

March, 2022, disposed of the representation with a direction that the award

declared against the suit plots as claimed by the petitioners marked as „Non-

Verified Award‟ are to be deposited in the Court of Learned Special LA

Judge, Alipore, under section 30 read with section 31 of the LA Act I of 1894

for further adjudication of the matter. The said order is assailed in the writ

petition.

3. It is submitted on behalf of the petitioners that in terms of the memo issued

by the Special Land Acquisition Officer on 3rd March, 2022 requesting the

petitioners along with their learned counsel to remain present at the hearing

on 10th March, 2022 the petitioners through their learned counsel appeared

before the authority and placed their submission along with copies of

relevant documents in support of their claim. But it has been recorded in

the order impugned that in spite of receiving notices, the awardees did not

turn up during the hearing. The concept of „Non-Verified Award‟ is unknown

to law and the order demonstrates that the award was verified and the

petitioners were held entitled to get the compensation amount. The

petitioners plead violation of the principles of natural justice due to such

observation made by the authority in the order impugned.

4. Per contra, learned counsel for the State respondents submits that there is

no fault in the decision making process of the authority that can be

canvassed in the writ petition. In the earlier writ petition, there was no

direction upon the respondents to pay the compensation to the petitioners

and the compensation amount has been rightly directed to be deposited

before the Civil Court in compliance with the statute. The petitioners

approached the authority for compensation after delay of 7 years which has

not been explained. Referring to Clause 84 of Chapter VI of the compilation

of executive instructions of the Government of West Bengal, learned counsel

has submitted that in terms of the said instructions, if the apportionment is

complicated and beyond the capacity of the Collector to determine, he is to

refer the matter to the Court himself under section 30 of the Act. Learned

counsel has also placed reliance on the authority in Joint Action Committee

of Air Line Pilots‟ Association of India (ALPAI) and Others v/s. Director

General of Civil Aviation and Others reported in (2011) 5 Supreme Court

Cases 435 and submitted that an executive order can be issued by the

authority keeping in view the rules and executive business which may not

have the force of law but provides guidelines to all concerned, who are

bound by it. The law merely prohibits the issuance of a direction, which is

not in consonance with the Act or the statutory rules applicable thereunder.

The rules can be supplemented and gaps filled up.

5. I have considered the submission made on behalf of the parties and material

on record.

6. At the outset, sections 30 and 31 of the Land Acquisition Act, 1894 are

required to be set out:

"Section 30:- Dispute as to apportionment.- When the amount of

compensation has been settled under section 11, if any dispute arises

as to the apportionment of the same or any part thereof, or as to the

persons to whom the same or any part thereof, is payable, the Collector

may refer such dispute to the decision of the Court."

"Section 31:- Payment of compensation or deposit of same in Court.- (1)

On making an award under section 11, the Collector shall tender

payment of the compensation awarded by him to the persons interested

entitled thereto according to the award, and shall pay it to them unless

prevented by some one or more of the contingencies mentioned in the

next sub-section.

(2) If they shall not consent to receive it, or if there be no person

competent to alienate the land, or if there be any dispute as to the title

to receive the compensation or as to the apportionment of it, the

Collector shall deposit the amount of the compensation in the Court to

which a reference under section 18 would be submitted:"

7. The order impugned records that on the date of hearing the petitioners were

represented before the authority through their learned counsels who

submitted an authorisation letter. According to the respondents, since the

awardees/petitioners did not turn up before the authority despite receiving

notice of acquisition, the award was declared as non-verified since

verification/apportionment of the same in respect of each awardee could not

be made. The said observation is not supported by any document which

suggests receipt notice of award by the petitioners. The petitioners claim to

have appeared before the authority upon receipt of notice of acquisition and

have produced documents to substantiate their claim. Strangely, the award

was directed to be deposited before the Civil Court only by the order

impugned, after lapse of 9 years from the date of award. No explanation has

been given by the authority as to what prevented them from depositing the

award before the Civil Court immediately after the alleged absence of the

petitioners before it. Even if it is held that the award could not be verified

when it was declared, the order impugned demonstrates that upon hearing

the petitioners and perusing the documents produced by them, individual

award was declared in favour of the petitioners, determining their respective

shares and holding them to be entitled to the same.

8. Section 30 of the Act of 1894 is invoked when there is any dispute as to the

apportionment of the award or as to the persons to whom the same or any

part thereof is payable. Section 31 of the Act contemplates that the

compensation shall be tendered and paid to the persons interested/entitled

unless they do not consent to receive it or there is no person competent to

alienate the land or there is any dispute as to the title to receive the

compensation or as to the apportionment of it. In the event of any of the said

contingencies, the compensation shall be deposited in Court.

9. In the case in hand, no such contingency has arisen before the authority to

invoke section 30/31 of the Act of 1894. It is not understood how despite

declaration of the shares of the petitioners and holding them to be entitled

to compensation, the authority could have directed to deposit the

compensation amount in the Court of the Learned Special LA Judge in

terms of section 30/31 of the Act of 1894 when the said provisions are not

applicable at all.

10. Such decision in the order impugned is undoubtedly dehors the statute and

strikes at the root of the decision making process and therefore, cannot be

sustained. It is ridiculous to note that the petitioners were deprived of the

compensation by the authority merely because there was no specific order to

that effect by the Court in the earlier writ petition. The authority appears to

have lost sight of the fact that in the earlier writ petition the Court directed

it to dispose of the applications filed by the petitioners which in no

uncertain terms indicate that the applications which were for payment of

compensation were directed to be disposed of, meaning thereby, that the

authority ought to have paid the compensation to the petitioners since the

order impugned demonstrates that the petitioners are held to be entitled to

the same. Clause 84 of Chapter VI of the compilation of the executive

instructions of the Government of West Bengal relied upon by the

respondents also demonstrates that the matter can be referred to the Court

under section 30 of the Act if the apportionment is complicated and beyond

the capacity of the Collector to determine. This is definitely not the case in

the present application. Once the Special Land Acquisition Officer decided

the entitlement of the petitioners upon verification of all relevant documents,

he had no alternative but to pay compensation to the petitioners in

accordance with their respective entitlement. Under no provision of law

could he have directed the award to be deposited in the Civil Court.

11. The ratio laid down in the authority in Joint Action Committee of Air Line

Pilots‟ Association of India (ALPAI) and Others (supra) has no manner of

application in the facts and circumstances of the present case in so far as it

deals with filling up gaps and supplementing rules by way of executive

instructions issued for guidance, not being inconsistent with the Act or

statutory rules applicable thereunder.

12. In this case, the executive instructions referred to are in consonance with

the statute and do not come to the aid of the respondents.

13. Last but not the least, learned counsel for the respondents has raised the

issue of unexplained delay of seven years on the part of the petitioners in

approaching the authority for compensation. The petitioners have contended

that despite appearing before the authority with all relevant documents

upon receipt of acquisition notice, no further communication was made by

the authority. The petitioners learnt about the award only on 27th

September, 2020 and approached the authority for payment of the same on

5th October, 2020. The respondents have not been able to substantiate

issuance of notice of award upon the petitioners or receipt of the same by

the latter. The petitioners having approached the authority immediately

upon knowledge of the award, there has been no delay on their part that can

frustrate their cause in the writ petition. The gap between the dates of

declaration of award and approach made by the petitioners before the

authority has been sufficiently and adequately explained.

14. In the light of the above discussion, this Court is inclined to set aside the

order impugned passed on 10th March, 2022 and direct the Special Land

Acquisition Officer, South 24 Parganas, Alipore, being the 3rd respondent

herein, to disburse the compensation to the petitioners forthwith.

15. In view of the above, the order impugned passed by Special Land

Acquisition Officer, South 24 Parganas, Alipore, on 10th March, 2022 is set

aside.

16. The Special Land Acquisition Officer, South 24 Parganas, being the 3rd

respondent herein, is directed to disburse the compensation to each of the

petitioners in terms of the award within six weeks from the date of

communication of this order. He is at liberty to take necessary steps for

withdrawal of the amount deposited before the Learned Special LA Judge,

Alipore in accordance with law.

17. The writ petition being W.P.A. 6843 of 2022 is accordingly allowed.

18. There shall however be no order as to costs.

19. Since no affidavit is invited, the allegations contained in the writ petition are

deemed not to be admitted.

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

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)