Firdosi Begum vs Union Of India & Ors
2023 Latest Caselaw 4970 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


           IA No.:CAN/1/2014 (Old No.:CAN/10597/2014),
                          CAN/2/2022
                                In
                        WPA/16977/2013

                               Firdosi Begum
                                    -Vs-
                            Union of India & Ors.

      For the Petitioner:       Mr. Tapas Kumar Ghosh, Adv.,
                                Mr. Tanmoy Choudhury, Adv.

      For the added respondent No.9:

Mr. Somnath Gangopadhyay, Adv.

Hearing concluded: 28 July, 2023.

Judgment on: 11 August, 2023.

BIBEK CHAUDHURI, J. : -

1. It is the case of the petitioner that she is the absolute owner of LR

plot No.327, J.L No.98, Khatian No.736, Mouza- Kaithi, Police Station-

Kankartala in the district of Birbhum measuring about 4.17 acres of land

by virtue of registered deed of sale dated 27th June, 2011. Since then she

has been in possess of the said land by way of cultivation and also

mutated her name in the LR Record of Rights. Subsequently, the

petitioner came to notice few months before the date of filing of the

instant writ petition that the Eastern Coalfields Limited, respondent No.2

herein represented by the respondent No.3, 4, 5 and 6 was illegally

occupying more or less 3 acres of land of the petitioner and allowed her to

cultivate only 1.17 acres of land. It is the case of the petitioner that

though the aforesaid land never belonged to the Eastern Coalfields

Limited, but the concerned authorities in a most arbitrary and whimsical

manner constructed a small structure and, thereafter, started to keep the

weigh bridge, which is also inoperative since long. The respondent

authorities also started to stag chimni dust over the said land as well as

the adjacent vast land occupied by them for keeping their vehicles. It is

alleged by the petitioner that the respondent No.2-6 without any

permission of the petitioner in a most arbitrary, whimsical and mala fide

manner continued their forcible possession/occupation over the personal

land of the present petitioner and despite protest, they did not bother to

vacate the land in question from their illegal occupation. The petitioner

finally sent a demand justice on 28th June, 2012 through her learned

Advocate with a request either to vacate the freehold land in her favour by

removing all unauthorized structure and machineries or in the alternative

to acquire the land in a lawful manner paying compensation and award

as applicable under the prevalent statute. After receiving demand justice,

the Senior Manager (Personal), Pandabeswar Area, Eastern Coalfields

Limited sought for a clarification from the Manager of Kankartala Colliery

and in reply to such clarification it was stated by the Manager by a Memo

dated 20th August, 2012 that-

"a) Ownership of the land may be ascertained from the LRE

and Legal Department respectively at area level."

2. Upon a proceeding under Section 144 of the Cr.P.C, the BL and

LRO submitted a report to the Executive Magistrate, confirming the

petitioner's case that the respondents were in illegal possession of 3 acres

of land out of the purchased land of the petitioner and the said land never

belonged to Eastern Coalfields Limited. On the other hand, the Eastern

Coalfields Limited claimed that the said plot of land was in possession of

the company by virtue of the Coal Mines Nationalization Act, 1973. It is

the grievance of the petitioner that the respondents have been possessing

the said land illegally without lawfully acquiring the same. In view of such

circumstances the petitioner has prayed for issuance of a writ in the

nature of mandamus commanding the respondent authorities to quit,

vacate and deliver peaceful possession of the 3 acres of land in favour of

the petitioner in LR plot No.327, Khatian No.736, JL No.98 of Mouza-

Kaithi and forthwith restored the said land in favour of the petitioner. The

petitioner also claimed damages for illegal possession of land in question.

3. The respondent No.2 filed affidavit-in-opposition on 17th December,

2017 challenging the maintainability of the instant writ petition. It is

further submitted on behalf of the respondents that in the instant writ

petition an interim order was passed on 19th August, 2014. The said order

was challenged in MAT 51 of 2015 before the Division Bench of this Court

wherein the Division Bench was pleased to observe that:-

"It is doubtful whether such dispute can at all be absolved in

a writ proceeding".

4. It was also observed by the Division Bench that in case of any

acquisition of the land in question under Act 1 of 1894 it is to be acquired

following the provision contained in Sections 4, 5A, 6, 7, 9 , 11 and 16 of

the Act 1 of 1894 by the Land Acquisition Collector and not by the Union

of India or the Eastern Coalfields Limited. It is further submitted on

behalf of the respondents that under the provisions of the Coal Mines

Nationalisation Act, 1973:-

(i) "(h)(vi) All the lands building, works, admits, levels, planes machinery and equipments instruments, stores, vehicles railways, tramways and siding in, or adjacent to a mine and used for the purpose of the mine.

(ii) (h)(vii) All workshops (including buildings, machinery, instruments, stores, equipment of such workshop and the lands on which such workshops stand) in or adjacent to a mine and used substantially for the purpose of the mine or a number of mine under the same management.

(iii) (h)(x) All lands building and equipment belonging to the owners of the mine and in adjacent to or situated on the surface of the mine where the washing of coal obtained from the mine on manufactures, thereform of coak is carried on.

(iv) (h)(xii) All other fixed assets, movable and immovable, belonging to the Owner of a mine, wherever situated and current assets, belonging to a mine whether within its premises or outside."

5. The Government of India has nationalised and taken over

Kankartola Colliery along with other collieries in the district of Birbhum

and they were regrouped and brought under Pandaveswar area. It is also

stated by the respondents that after acquisition of colliery, compensation

were paid to the respective private colliery owners. The land in question

were all along under the occupation of Kankartola Colliery and it is

revealed from RS Record of Rights that plot No.297 measuring and area of

4.17 acres was classified as danga and Kankartola Colliery was dhakalkar

of the said land. The vendor of the petitioner had no legal right to sale the

nationalized property in favour of the petitioner.

6. At the time of argument it is contended by the learned Advocate for

the petitioner that the petitioner at this stage prays for either acquisition

of land under the provision of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013 and after possession of the said land may be handed over Eastern

Coalfields Limited the petitioner also prays for a job under the land losers

category in Eastern Coalfields Limited.

7. Surprisingly enough no such prayer was made by the petitioner in

the instant writ petition. Therefore, without any specific prayer and in

absence of the pleading this Court is not in a position to grant any relief

to the petitioner as submitted by the learned Advocate for the petitioner.

8. At the time of argument the learned Advocate for the petitioner has

submitted that the land may be of Mouza- Kaithi, JL No.98 issued by the

Deputy Manager, Kankartola Colliery. It is submitted by the learned

Advocate for the petitioner that the plots marked with yellow colour are

the land of Eastern Coalfields Limited. Plot No.327 is situated on the

adjacent south of the plot No.330 and 333. The said plot is not under the

possession of the respondents. However, the respondents have been

illegally possessing the substantial portion of the said property measuring

about 3 acres. The petitioner is entitled to get back possession of the said

land.

9. I am afraid, the writ court cannot grant any order in the nature of a

decree for recovery of possession. Efficacious relief of the petitioner lies in

filing a suit for recovery of possession in the competent Civil Court.

10. In view of such circumstances, I do not find any merit in the instant

writ petition. Accordingly, the writ petition is dismissed on contest,

however without cost.

11. Along with the writ petition, all connected applications are also

disposed of.

12. Interim order, if any stands vacated.

(Bibek Chaudhuri, J.)