Banani Mistri & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 4999 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                       W.P.A. 3178 (W) of 2016
                                 With
               CAN 1 of 2018 (Old No.CAN 4022 of 2018)
                                 With
                           CAN 2 of 2023

                          Banani Mistri & Ors.
                                   -Vs-
                       State of West Bengal & Ors.


      For the Petitioners:          Mr. Amit Kumar Pan, Adv.,
                                    Mr. Ram Chandra Guchhait, Adv.

      For the State:                Mr. Lalit Mohan Mahata, AGP.,
                                    Ms. Piu Karmakar, Adv.

      For the Respondent:           Mr. Lalit Mohan Mahata, AGP.,

Mr. Ziaul Haque, Adv.

Hearing concluded on: 30th June, 2023.

Judgment on: 14th August, 2023.

BIBEK CHAUDHURI, J. : -

1. One Smt. Shibani Bose, since deceased on 30th January, 1970, was

the owner of the plots of land situated in dag No.2622 under khatian

No.253 and khatian No.682 of Mouza Kasba, under Haltu Union Board,

District South 24 Parganas, measuring 3 Cottah and 22 square feet of

Rayati Land which she purchased on 22nd May, 1963 by virtue of a

Registered Deed of Sale. During her life time she had been possessing the

said land, constructing a one storied pucca building thereon and paying

government taxes etc.

2. At the time the of death of Shibani Bose she left behind her

husband Sudhir Kumar Bose, her two sons and one daughter, namely,

Babu Bose, Bapi Bose and Banani Bose. Her husband died on 20th

January, 1984. During the passage of time one Smt. Jharna Bose, wife of

late Bapi Bose, Gopal Bose, son of late Bapi Bose, Minati Bose wife of

late/untraceable Babu Bose, Somnath Bose and Sanjib Bose sons of

late/untraceable Babu Bose and daughter Banani (Mistry) Bose became

the co-shares of the aforesaid land and structure and they had been

possessing the said land with structure, peacefully and uninterruptedly.

It is the case of the petitioners that in the year 1970-80, the Government

of West Bengal initiated proceeding under Sub-Section (1) of Section 3 of

the West Bengal Land (Requisition and Acquisition) Act, 1984 (hereafter

described as Act 2 of 1948) being Case No.LA II/68 of 1979-80 by which

said land cum building were requisitioned. For the purpose of

construction of Rash Behari Connector. Immediately after service of notice

under Section 3(1) of Act 2 of 1948, the Collector, South 24 Parganas took

over formal possession of the said property for public purpose, viz,

construction of Rash Behari Connector. The concerned authority having

demolished the petitioners' house made a commitment that an alternative

accommodation would be provided to them in lieu of the said residential

accommodation which had been demolished for construction of Rash

Behari Connector. At the time of the acquisition proceeding, Babu Bose,

one of the son of Sudhir Kumar Bose and Shibani Bose was untraceable

and a missing diary was lodged in the local police station vide General

Diary entry No.563 dated 11th December, 1994. The said fact was duly

notified in the daily Newspaper "Bartaman" on 28th February 1995.

3. The notice for giving compensation with respect to the said land

cum building was issued on 18th April, 1987 and the authority concerned

while making a contribution of said compensation divided the same into

three heads- one in the name of Bapi Bose, another in the name of

Banani Mistri and the third one in the name of Babu Bose (who was

untraceable by that time). The petitioners state that Minati Bose wife of

untraceable Babu Bose and their sons Somnath Bose and Sanjib Bose

tried to convince the authority to release their share of said compensation

lying in the head of Babu Bose, but the authority concerned did not pay

their share of said compensation for want of conformed ascertainment of

said Babu Bose as the money was paid to the respective head of the legal

heirs of deceased Shibani Bose and it was informed to the authority that

after her death, Sri Babu Bose, Smt. Banani Bose and Sri Bapi Bose are

the only claimants over the said compensation amount. It is contended on

behalf of the petitioners that only 80% of the compensation out of total

compensation has been paid to the petitioners which has been

proportionately taken by the legal heirs of Bapi Bose and Banani Mistri as

per their share of compensation.

4. It is further stated by the petitioners that on 29th May, 2000,

further hearing was initiated by the Kolkata Metropolitan Development

Authority with regard to payment of share of compensation in favour of

petitioners No.3, 4 and 5. The KMDA wrote a letter to petitioner No.2

directing him to submit an affidavit swearing that Babu Bose is missing

for last the four years.

5. Further case of the petitioners is that the petitioner No.3 and 4

have turned major and along with the other petitioners made a

representation with the Deputy Secretary, KMDA, Acquisition Department

requesting them to provide an alternative accommodation in exchange of

land cum building. They have taken while completing acquisition

proceeding under Act 2 of 1948 and also requested them necessary

papers for the said accommodation. Vide memo No.LA(S) 452 dated 28th

March, 1988, The Collector South 24 Parganas informed the petitioners

that 2/3rd shares of 80% structure value of the plot of land of the

petitioners have been paid but the petitioners No.3, 4 and 5 have got

nothing due to the reason that at the time of material point of time, Babu

Bose which was missing and was entitled to receive his share of value and

as such till date the said share of value remains unpaid to him.

6. That on 30th June, 2011 the petitioners made a joint representation

with the respondent Chief Executive Officer, KMDA and the

Administrative State Manager, Land, Unnayan Bhawan, Joint Secretary,

Land Acquisition Secretary, Kolkata Metropolitan Development Authority.

Joint Secretary Land Acquisition, KMDA, Principal Secretary requesting

them to provide alternative accommodate for their shelter in exchange of

the land and structure which they acquired but the prayer of the

petitioner is still under consideration by the respondents.

7. The petitioners state that under the Right to Information Act, they

made an application and they exhausted all the procedures but no

remedy has been given to them yet. On the aforesaid factual

circumstances the petitioners have prayed for issuance of the following

rules:-

a. writ in the nature of Mandamus by directing the respondents to release balance amount of compensation in favour of the petitioners which they have withhold since last long decade inspite of acquisition of land taken by them under L.A Case No.LA 11/68 of 70-80 for construction of R.B Connector under Act I of 1894 situated in dag No.2611 of Mouza- Kasba, Khatian No.253,682, measuring 3 (three) cottah 22 (twenty two square feet) land District South 24 Parganas from the petitioners.

b. A writ in the nature of Mandamus by directing the respondents to arrange and/or to provide an alternative accommodation to the petitioners under Rehabilitation and Resettlement Scheme which they have provided in similarly situated evicted/land looser persons in the same area while giving effect of such project. c. Writ in the nature of Mandamus by directing them to explain why they have deprived the petitioners since long years although they have

gone to them seeking justice in every possible manner and available scope.

d. Writ in the nature of Mandamus by directing the respondents to restore an utilized land to the petitioners if not so utilized since acquisition from 1979-80.

e. Writ in the nature of certiorari to quash, cancel, and withdraw any adverse order of findings and/or decision taken by the competent authority in connection petitioners after transmitting all records, process and relevancy of the case.

f. Rules in terms of prayer (a),(b),(c),(d), and (e) above.

g. Ad interim order by directing the respondents to arrange resettlement accommodation in favour of the petitioners forthwith.

h. Call for records.

i. Incidental costs.

j. Pass such other or further order or orders as your Lordships may deem fit and proper.

8. By filing affidavit-in-opposition, the state respondents No.2, 3, 4, 5

and 6 have strenuously disputed the averment made by the petitioners in

the aforesaid writ petition and the prayer made by them. It is the specific

case of the state respondents that after publication of notice under

Section 3 of Act 2 of 1948, the State Government by virtue of the

provision of Section 4(1) of the said Act acquired the land and structure in

question and used the said land for the purpose of construction of Rash

Behari Connector demolishing the existing structure thereon. It is also

stated by the respondents that after publication of notice under Section

4(1)(a) in the official gazette, 80% of the structure value was calculated

and paid to the admitted legal heirs of the original owner namely, Shibani

Bose since deceased on 16th February, 1987. It is also contended on

behalf of the state respondents that the award could not be concluded on

or before 31st March, 1997 on the midnight on which Act 2 of 1948 came

to be repealed and accordingly, the instant acquisition proceeding was

switched over to Act 1 of 1894 by service of notice under Section 9(3B) of

the Land Acquisition (Amendment) Act on 9th May, 2000. It is also

contended on behalf of the respondents that an award was published on

8th May, 2002 where the names of some of the writ petitioners were

included against plot No.2611 of Mouza Kasba.

9. It is also stated by the respondents that the writ petition was filed

after a lapse of a long period of time and the petitioners are not entitled to

get any relief due to the laches on the ground of delay.

10. The respondent No.5, 7 and 8 being KMDA and its officers have

filed a separate affidavit-in-opposition controverting all allegations made

in the writ petition. It is the specific case of the above named respondents

that for the purpose of construction of Eastern Metropolitan Bypass and

the development of other infrastructural facilities under the East Kolkata

Area Development project some land and structures existing thereon from

the time prior to 1978 were affected. Petitioners' land along with structure

was acquired by the state respondents forcefully and it was handed over

to the KMDA being the requiring body. The said property was demolished

for construction of Rash Behari Connector from Eastern Metropolitan

Bypass.

11. In the affidavit-in-opposition filed by the respondent No.7 and 8 it is

admitted that after construction of Rash Behari Connector after

acquisition of land with structure, some residential structures were

partially demolished and some other structures had to be demolished

completely. After protecting negotiations with the representatives of the

people and the affected persons it was decided by the authority in the

year 1989 that no rehabilitation benefit would be extended to the owners

of the partially affected structures, but the affected owners whose

structures were completely demolished would be given rehabilitation

subject to certain terms and condition prescribed thereon. There was no

such provision either in Act 2 of 1948 or in Act 1 of 1894 for rehabilitation

of the person/persons affected by acquisition apart from payment of

compensation amount. Therefore, KMDA never made any commitment to

provide alternative accommodation against acquisition of the subject land

or demolition of structure existed thereon as claimed by the petitioners. It

is further stated by the answering respondents that Shibani Bose, the

original owner of the subject land and structure died in the year 1970 and

her husband Sudhir Kumar Bose died in 1984 in response to the prayer

made by the petitioner No.1 and 2 as the legal heirs of Shibani Bose, the

authority issued a letter dated 13th February, 1989 informing them that

the existing and all available legal heirs of late Shibani Bose are required

to swear in the first affidavit to the effect that Babu Bose, son of late

Shibani Bose is missing for last four years and petitioners No.3, 4 and 5

are the legal heirs of the said Babu Bose. However, the said affidavit was

not filed by the petitioners. Therefore, the respondents do not have any

scope to consider the prayer for rehabilitation of the petitioners. That on

22nd September, 1994 one Smt. Mona Bose wife of the said Babu Bose

wrote a letter to the Deputy Secretary, KMDA claiming proportionate

compensation which her husband was entitled to get, along with equal

division of a plot of land to be allotted under the rehabilitation scheme as

against the structure owned by late Shibani Bose. However, it was not

possible for the respondents to consider rehabilitation scheme in a

piecemeal way. So far as the payment of compensation amount against

the acquisition of land is in question, it is submitted on behalf of the

respondents that KMDA is not the appropriate authority to deal with or

decide the issue. It is absolutely upon the acquiring authority being the

concerned collector who can appropriately deal with the grievances of the

petitioners, if any, in accordance with law.

12. On the basis of the above factual aspect it is submitted by the

learned Advocate for the petitioners that the subject land with structure

was acquired under Act 2 of 1948 in the year 1979-1980 by way of

publication of notice under Section 3 followed by a gazette notification

under Section 4(1a) of Act 2 of 1948. A notice under Section 5(3) of 1948

Act was subsequently issued to the petitioners.

13. It is contended on behalf of the petitioners that during pendency of

the said proceeding, the West Bengal Land Requisition and Acquisition

(Amendment) Act 1994 came into force on and from 31st March, 1994 and

by the said amendment Act, Section 3 of Act 2 of 1948 was omitted with

effect from 1st April, 1994. Therefore, on and from 1st April, 1994 there

could not be any requisition of land under the Act of 1948. However, the

life of the said Act was extended till 31st March, 1997. The said Act was

further amendment on 8th October, 1996 inserting Section 7A after

Section 7 of the Act of 1948.

14. It is urged by the learned Advocate for the petitioners that in view of

insertion of Section 7A by way of West Bengal Land (Requisition and

Acquisition) (Amendment) Act, 1996 it is made obligatory for the Collector

to make an award under Sub-section (2) of Section 7 within a period of

three years from the date of publication of the notice in the official gazette

under Sub-Section 1(a) of Section 4 and if the said award is not made

within the aforesaid period, the notice will lapse.

15. Act 2 of 1948 stood expired with effect from 31st March, 1997.

However, by virtue of Land Acquisition (West Bengal Amendment) Act,

1997 which came into force on and from 1st day of April, 1997, after

Section 9, two Sub-Sections, viz., (3A) and (3B) were inserted.

16. It is submitted by the learned Advocate for the petitioners that

though the land was acquired in the year 1979-1980, acquisition was

made by the gazette notification dated 4th January, 1988. Therefore, the

state respondents were under obligation to pass award under Section 7A

within a period of three years from the date of publication of the notice in

the official gazette under Section 4(1a) of Act 2 of 1948. In the instant

case award ought to have been passed by 14th January, 1991 as the

award was not passed within the stipulated period of time and by

operation of law the notice would lapse.

17. Having heard the learned Advocate for the petitioners that on

careful perusal of the entire materials on record, it is ascertained that the

competent authority has only given 80% of the structure value to the

petitioner No.1 and petitioner No.2 and retained 20% of the structure

value for the legal heirs of Babu Bose till determination of the question as

to whether Babu Bose is held to be permanently missing and considered

to be dead under the fiction of law.

18. Indisputably, 80% of the compensation of structure value was paid

to petitioners No.1 and 2 on 16th February, 1987 i.e., before publication of

gazette notification under Section 4(1a) of Act 2 of 1948. It is needless to

say that gazette notification was admittedly published on 14th January,

1988. However, till date the respondents failed to produce any document

to prove that compensation was paid in respect of the land within three

years from publication of notice under Section 4(1a) of the Act. Therefore,

the acquisition notice under Section 4(1a) is treated to be lapsed for non-

payment of compensation in respect of the land owned by the predecessor

in interest of the petitioners. As the land was acquired for construction of

Rash Behari Connector and the structure constructed by the predecessor-

in-interest of the petitioners were completely demolished and the land has

been used for public purpose, the petitioners at present are entitled to get

compensation under the provision of Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013.

19. Since 2013 Act contains specific provision of rehabilitation, this

Court refrains from passing further order in respect of rehabilitation of

the petitioners.

20. The instant writ petition is disposed of with the above order on

contest. However, there shall be no order as to cost.

(Bibek Chaudhuri, J.)