Sk. Saokat Ali & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 4743 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITIONAL WRIT JURISDICTION
                           APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                              WPA 27511 of 2014
                           Sk. Saokat Ali & Ors.
                                    -Vs-
                        State of West Bengal & Ors.

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

      For the State:-            Mr. Rajarshi Basu, Adv.,
                                 Mrs. Rupsha Chakraborty, Adv.


Heard on: 25 July, 2023.
Judgment on: 04 August, 2023.

BIBEK CHAUDHURI, J. : -

1.    The mother of the petitioners, namely, Nazimessa Bibi, since

deceased purchased a plot of land being Dag No.296 measuring an area of

about 0.39 acre situated within Mouza- Chak Kashipur, J.L No.48, under

Police Station Budge Budge, at present Nodakhali, in the district of South

24 Parganas. On the death of the mother of the petitioners on 4th July,

1989 the petitioners and one Tehera Bibi @ Munia Khatun inherited the

said property under Mohammedan Law of inheritance and they used to

possess the land jointly. During the life time of the said Nazimessa Bibi,

in pursuance to a proposal vide memo 1329 dated 29th March, 1979

issued by the Executive Engineer, Urban Drainage Division, Irrigation and
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Waterways Department Directorate, Government of West Bengal, an Land

Acquisition proceeding was initiated being LA II/8 of 1979-80 for the

purpose of excavation of Alampur Khal in connection with Raypur basin

drainage system. Indisputably, the said LA proceeding was instituted

under the provision of the West Bengal Land (Requisition and Acquisition)

Act, 1948 (herein after described as Act II of 1948). In the said LA

proceeding 0.10 acre of land out of 0.39 acre of land in plot No.296 was

acquisitioned by a notification under sub Section 1 of Section 3 dated 7th

June, 1983.

2.      Subsequently, possession of the said land was taken by the

Collector, South 24 Parganas and it was handed over to the requiring

body on 12th April, 1984.

3.      Admittedly no award could be declared in respect of the said LA

proceeding within the life time of Act II of 1948. It is needless to say that

Act II of 1948 expired and got its natural death with effect from 31st

March, 1997.

4.      It is also not disputed that due to non-placement of fund the said

proceeding under Act II of 1948 was not converted to a proceeding under

Act I of 1894 as per the provisions of Land Acquisition (West Bengal

Amendment) Act 1997.

5.      In the meantime Act I of 1894 was also repealed with effect from 1st

November, 2014 by a new Act viz, The Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013.
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6.    It is the case of the petitioner that the LA Collector is duty bound to

pay compensation upon initiation of a fresh proceeding under 2013 Act in

favour of the petitioners for acquisition of the said land. The respondent

being statuary authority cannot withheld payment of compensation and

award to the petitioners on the plea that the rule in connection with 2013

Act has not been framed. The petitioners also claimed damages and/or

occupational charges from the respondent from 1st April, 1997 till the

initiation of fresh proceeding under 2013 Act. Under such circumstances

the petitioners have prayed for issuance of a writ in the nature of

mandamus, commanding the respondent to determine and pay

compensation in question in respect of the said land in terms of the

relevant provisions of 2013 Act. They have also prayed for damages

and/or occupational charges from the respondent for the year

commencing from 1st April, 1997 till initiation of proceeding under the

2013 Act.

7. Mr. Amit Kumar Pan learned Advocate submits placing reliance on

a Full Bench decision of this Court in the case of State of West Bengal

vs. Sabita Mondal reported in 2011(3) CHN (Cal) 555 that the effect of

Land Acquisition, (West Bengal Amendment) Act, 1997 which came into

operation on the midnight between March 31st 1997 and April 1st of 1997

prevented all those notices under sub-Section (1a) of Section 4 issued

after April 1st 1994 from being lapsed by giving scope of revival by way of

notice under sub-Section (3B) of Section 9 of the said Act if award had not

been passed within three years from the date of publication of such notice

and which would otherwise lapse if the said Act of 1997 would not came

into operation at the midnight of March 31st, 1997.

8. However in respect of those notice under sub Section (1a) of Section

4 which were issued prior to March 31st, 1992 and in respect of which no

award had been passed by March 31st, 1995, those notices had already

lapsed by the Amendment Act of 1997 of the Land Acquisition Act by West

Bengal Legislature, no provision has been made for revival of the lapsed

notices which stood lapsed already on March 31st, 1997 for non

compliance of the provision of Amendment Act 1996. By the Amendment

Act 1997 only those notices under sub Section (1a) of Section 4 which

would have lapsed on the midnight of March 31, 1997 or on subsequent

dates, have been saved.

9. It is further submitted by Mr. Pan, learned Advocate for the

petitioner relying on the decision of the Hon'ble Supreme Court in State

of West Bengal &b Ors. vs. Aziman Bibi & Ors. reported in (2016) 15

SCC 710 that in relation to an acquisition process under the West Bengal

Land Development and Planning Act, 1948 a question came up before the

Hon'ble Supreme Court if award was not made within two years after

publication of Section 6 notification under Act I of 1894, in view of the

proviso to Section 11A the acquisition proceeding would lapse or not.

10. The Hon'ble Supreme Court held in paragraph 11 and subsequent

paragraphs as here under:

"11. In the case at hand, the acquisition proceedings had started before the insertion of Section 11-A in the statute book. Proviso to

Section 11-A would, therefore, apply and permit the making of an award within a period of two years from the date the Land Acquisition (Amendment) Act, 1984 came into force. The said amendment came into force on 24-9-1984. In terms of the proviso, therefore, the award in respect of the acquisition at hand could have been made till September 1986, by the latest. No such award was, however, made till September 1986 or at any time even thereafter till 2011, when the Collector did so, pursuant to the direction of the High Court. That award is on the face of it non est in the eye of the law.

12. The net effect of the above is that the entire process commencing with the publication of the notification under Section 4 and declaration under Section 6 had lapsed and no award could be lawfully made or directed to be made by the High Court in exercise of its power under Article 226 of the Constitution of India. Inasmuch as the learned Single Judge directed a decision to be taken by the competent authority it could only mean that the competent authority would be free to initiate the process of acquisition rather than taking the lapsed proceedings further by making an award beyond the statutory period. Inasmuch as the Division Bench directed compensation to be determined that too by appointing a Special Officer for that purpose, it fell in a palpable error. There is no juristic principle which the Division Bench of the High Court could call in aid in a case like the one at hand and resurrect and resuscitate process/proceedings that had lapsed. The High Court appears to have devised a unique procedure by appointing a Special Officer for determination of compensation in proceedings that were legally non est. We find it extremely difficult to approve of such an approach.

13. In the result, we allow these appeals, set aside the orders passed by the High Court with the direction that since the land

owned by the writ petitioner landowners has already been utilised, pursuant to the initial declarations, the State shall take steps for notifying the acquisition once again and determine compensation in accordance with law expeditiously but not later than six months from the date a copy of this order is made available to it. No costs."

11. It is also submitted for the state respondent that sub Section (2) of

Section 24 of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (herein after

described as 2013 Act) saves certain cases in which acquisition process

was initiated under Act 1 of 1894. Where an award under Section 11 has

been made five years or more prior to commencement of the 2013 Act, but

the physical possession of land has not been taken or compensation has

not been paid, the said proceeding shall be deemed to have lapsed and

the appropriate government, if it is so choose shall initiate the proceeding

of such land acquisition afresh in accordance with the provision of this

Act.

12. It is submitted by the learned Advocate for the State respondents

that under clause (b) of sub Section (1) of Section 24 of the 2013 Act,

where an award under Section 11 of the Land Acquisition Act has been

made, then such proceeding shall continue under the provisions of the

Land Acquisition Act, as if the said Act has not been repealed. Thus

pendency of a proceeding under Act I of 1894 and failure on the part of

the appropriate government to published the award under Section 11 of

the said Act are sine qua non applicability of 2013 Act. Where acquisition

proceeding was initiated under the Act 2 of 1948 and no award is passed

till date, the provisions of 2013 Act will not be applicable. In support of

his contention, learned Advocate for the respondents refers to a

unreported decision of the Division Bench of this Court in The State of

West Bengal & Ors vs. Niladri Chatterjee & Ors.: MAT 86 of 2016

decided on 23rd August, 2017.

13. In the said judgment it was held by the Division Bench of this Court

that where land in question was requisitioned by publishing notice under

Section 3 of Act II of 1948 and notification under Section 4(1)(a) of Act II

of 1948 was published in Calcutta Gazette on 7th June, 1983 and

possession was taken by the Collector and handed over to the requiring

body on 12th April, 1984, but payment could not be made of the said

acquisition, the Collector simply abdicated his statutory duty to issue

notice under section 9(3B) of the Act of 1894. This could be either due to

sheer callousness or negligence on the part of the Collector. Undoubtedly,

it was the duty of the Collector to issue notice under Section 9(3B) of the

Act I of 1894. For the failure of issuance of such notice, acquisition

proceeding stood lapsed. However, whether ipso facto such a lapse

translates into a claim for compensation under the provision of the Act of

2013 can be answered simply by visiting section 24 of the Act of 2013.

14. In Niladri Chatterjee & Ors. (supra) it is held by the Division

Bench of this Court:-

"In the facts of the instant case, it cannot be held - by any stretch of imagination - that proceedings were ever "initiated" under the said Act of 1894. As such, abdication of statutory duty on the part

of the Collector of Burdwan to issue notice under section 9(3B) of the Act of 1894 - either due to sheer callousness or negligence on his/her part - cannot ipso facto translate into a claim for compensation under the Act of 2013. We do not know what prevented the writ petitioners from approaching the writ Court any time between initiation of L.A. Case No. 126R/1976-77 and the year 2014, for the purpose of seeking appropriate relief(s). Merely by making two representations - one on 20th December, 2011 and the other on 30th July, 2014 - they have sought for a issuance of a writ in the nature of mandamus for getting compensation under the Act of 2013 upon filing a writ petition only in the year 2014, by which time the said Act of 2013 has already come into force. We find that in the facts of the instant case, the writ petitioners were sleeping over their valuable right to get compensation for decades. As such, they simply cannot approach the writ Court one fine morning when the Act of 2013 has come into force in order to seek compensation under the said Act of 2013, upon invoking section 24 of the said Act of 2013, when proceedings were never "initiated" under the Act of 1894."

15. In Indore Development Authority vs. Manoharlal reported in

(2020) 8 SCC 129, it is observed in paragraph 366 and held as under:

"366. In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within the window period of five years excluding the period covered by

an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word "or" used in Section 24(2) between possession and compensation has to be read as "nor" or as "and". The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

366.4. The expression "paid" in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1- 2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded

proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."

16. Though this Court in the above paragraphs has recorded the law

decided by the Hon'ble Supreme Court as well as the observation of the

Division Bench of this Court, practically, the said discussion is more

academic under the facts and circumstances of the case admitted under

the provision of the West Bengal Land (Acquisition and Requisition) Act,

1948. 0.10 acre of land out of 0.39 acre of land in plot No.296 was

requisitioned under Section 3(1) of the said Act vide notification dated 7th

June, 1983. The state government has failed to produce any document to

show that the land was acquired by the Collector, South 24 Parganas

under the provision of Section 4(I) or 1(a) of Act 2 of 1948. On the

contrary, possession of the land was handed over to the requiring body on

12th April, 1984. At present there is no existence of the said requisitioned

plot after excavation of Alamlpur Khal in connection with Raypur basin

drainage system.

17. Thus, this Court has hesitation to hold that no acquisition

proceeding was practically initiated under Act 2 of 1948. But the State

Government illegally without following any procedure of acquisition took

away the land of the petitioners.

18. It is also pertinent to note that no acquisition proceeding was ever

initiated in respect of the said land for payment of compensation and

award.

19. Before I part with, I must record that the learned Advocate for the

State respondents has raised an objection as to delay in filing the writ

petition. It is true that the instant writ petition was filed in 2014.

Possession of the land was taken by the Collector on 12th April, 1984 and

it was handed over to the requiring body. There is substantial delay in

filing the writ petition. At the same time, it follows Article 300A of the

Constitution of India that no person shall be deprived of his property save

by the authority of law. The state cannot dispossess a citizen to his

property except in accordance with the procedure established by law. The

obligation to pay compensation, though not expressly included in Article

300A, can be inferred in that Article. Right to Property is not only a basic

Human Right but also a Constitutional Right under Article 300A of the

Constitution of India. In the instant case, the said action clearly

demonstrated that the petitioners were evicted and dispossessed of their

property without any legal sanction and without following due process of

law and depriving them payment of just compensation which they were

entitled to get. Therefore, the contention advanced by the learned Counsel

for the state of delay and laches of the petitioners 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 matter of judicial

discretion, which must be exercised judiciously and reasonably according

to the facts and circumstances of a case. It will depend upon the breach

of fundamental rights, and the remedy claimed, and when and how delay

arose. There is no period of limitation prescribed for the courts to exercise

their constitutional jurisdiction to do substantial justice. The decision of

the Hon'ble Supreme Court in Vidya Devi vs. State of Himachal Prasesh

& Ors. reported in (2020) 2 SCC 569 may be relied on in this regard.

20. In the absence of any acquisition proceeding under Act 2 of 1948,

or Act 1 of 1894 by way of subsequent conversion, this Court constrains

to hold that the state government is under obligation to pay fair

compensation under 2013 Act to the petitioner.

21. The Collector, South 24 Parganas is directed to initiate acquisition

proceeding in land acquisition under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 as per the present market value of the land and

settle the compensation and damages and award payable to the

petitioners within 60 days from the date of communication of this order.

(Bibek Chaudhuri, J.)