The State Of West Bengal & Ors vs Pranab Kumar Mukherjee
2023 Latest Caselaw 5042 Cal

           IN THE HIGH COURT AT CALCUTTA
                    Civil Appellate Jurisdiction
                           (Appellate Side)

                       MAT 71 of 2018
                            With
          IA No: CAN/1/2018 (Old No: CAN/876/2018)
                            With
          IA No: CAN/2/2018 (Old No: CAN/877/2018)

                  The State of West Bengal & Ors.
                                -Versus-
                      Pranab Kumar Mukherjee



Before:          The Hon'ble Justice Arijit Banerjee
                               &
                 The Hon'ble Justice Apurba Sinha Ray



For the Appellants/State : Mr. Susovan Sengupta, Adv.
                           Mr. Subir Pal, Adv.

For the Respondent/writ : Mr. Mihir Kundu, Adv.

petitioner                Mr. Subrata Poddar, Adv.



Judgment On                : 16.08.2023

Arijit Banerjee, J. :-

1. This appeal is directed against a judgment and order dated May 18, 2016,

whereby the writ petition of the respondent no. 1 being W.P. No. 5568(W)

herein was disposed of with similar direction as was given in the judgment

and order dated May 16, 2016, rendered in W.P. 5590(W) of 2016. Such

direction was as follows:-

"This writ petition, therefore, is disposed of by directing the

competent respondent authority to determine the market value of

the land in terms of Section 26 of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 and thereafter follow the process of law as

laid down under the new Act of 2013 and ensure compensation is

paid within the statutory time frame stipulated therein to the

petitioners."

2. The undisputed facts of the case are that land of the respondent/ writ

petitioner was requisitioned by the State Government under Section 3 of the

West Bengal (Requisition and Acquisition) Act, 1948, and possession thereof

taken over for construction of Haringhata-Panpur Road in the District of

Nadia, in connection with LA Case no. 52/General/B.R.P/Rehab of 1981-82.

Possession of such land was handed over to the requiring body on August

13, 1982. The land has been utilized for the purpose of constructing the

aforesaid road.

3. For reasons which are not relevant, a fresh L.A. Case No. 3/PWD/2004-

05 was initiated by the competent authority by issuance of notice under

Section 4 of the Land Acquisition Act, 1894. It is not in dispute that no

Award was ever passed in connection with the said land acquisition case.

4. The respondent no. 1 approached the learned Single Judge. The order

under appeal was passed directing the Government to determine and pay

compensation to the writ petitioner in terms of the provisions of the 2013

Act.

5. Being aggrieved, the State Government has come up by way of this

appeal.

6. Appearing for the appellant, learned Advocate submitted that the learned

Single Judge erred in directing the Government to pay compensation

following the provisions of the 2013 Act. Relying on the decision of the

Hon'ble Supreme Court in the case of Haryana State Industrial and

Infrastructure Development Corporation Ltd & Ors. v. Mr. Deepak

Agarwal & Ors. rendered in SLP (C) Nos. 16631 -16632/2018, learned

Advocate submitted that if notice under Section 4 of the LA Act 1894, was

issued prior to the 2013 Act coming into force but no Award was passed

prior to January 1, 2014, when the 2013 Act came into force, the land

acquisition proceedings will continue as per provisions of the LA Act 1894

and only for determination of the compensation amount the provisions of the

2013 Act will be applicable.

7. Learned Advocate then submitted, relying on the Constitution Bench

Judgment of the Hon'ble Supreme Court in the case of Indore Development

Authority v. Manoharlal and Ors. reported at (2020) 8 SCC 129, that

possession of the land of the respondent/ writ petitioner having been taken

over in 1982 and the writ petitioner having approached the Court only in

2016, i.e., after a lapse of 34 years, the writ petition is barred on the

grounds of delay and laches. Learned Advocate submitted that if a claimant

is aware of violation of his rights and does not claim his remedies promptly,

such inaction or conduct tantamounts to a waiver of his right. In such

cases, the lapse of time and delay are very material factors and cannot be

ignored by the Court. He submitted that the writ petition should have been

dismissed on the ground of delay and laches.

8. Learned Advocate for the respondent/writ petitioner submitted that since

no declaration under Section 6 was published within one year from the date

of notification under Section 4 of the LA Act 1894, or at all, in connection

with the L.A. Case initiated in 2004-2005, the acquisition proceedings

lapsed. This has also been admitted by the Government in its MEMO no.

214/1-LA dated February 19, 2015, (Annexure R-5 to the affidavit-in-

opposition of the writ petitioner filed in connection with the stay application

in this appeal). That the acquisition proceedings lapsed was also admitted by

the State Government by filing an affidavit before the learned Single Judge

in W.P. No. 5568 of 2016. No Award was ever published and no

compensation paid to the writ petitioner.

9. Learned Advocate submitted that since the proceedings initiated under

the 1894 Act lapsed, therefore proceedings have to be initiated under the

2013 Act. Alternatively, even if the proceedings did not lapse because of

physical possession of the land having been taken over by the State

Government, since there was no Award as on January 1, 2014,

determination of the compensation amount will have to be in terms of the

provisions of the 2013 Act.

10. Learned Advocate further submitted that since Section 4 notification in

connection with L.A. Case no. 3/PWD/2004 - 2005 was published in the

year 2011, the date of such notification should be treated as the material

date for determination of compensation amount following the provisions of

the 2013 Act.

11. I have given my anxious consideration to the rival contention of the

parties.

12. The undisputed facts of the case have been noted above and I do not

repeat the same. It is not in dispute that in connection with the L.A. Case

initiated in 2004-2005, no Award was ever passed by the competent

authority. It is an admitted fact that as on January 1, 2014, i.e, the date

when the 2013 Act became operational, there was no Award. The short

question is whether or not the notification under Section 4 of the 1894 Act

survived after coming into effect of the 2013 Act?

13. Section 24(1)(a) of the 2013 Act reads as follows:-

"24.(1) (a) where no award under section 11 of the said Land

Acquisition Act has been made, then, all provisions of this Act

relating to the determination of compensation shall apply;"

14. In the case of Indore Development Authority v. Manoharlal and Ors.

(supra), the supreme Court held that where Section 24(1)(a) of the 2013 Act

applies, i.e., where there is no Award on the date of commencement of the

2013 Act, the proceedings initiated under 1894 Act do not lapse. However,

compensation has to be determined under the provisions of the 2013 Act.

15. In Haryana State Industrial and Infrastructure Development

Corporation Ltd & Ors. v. Mr. Deepak Agarwal (supra), a three Judge

Bench of the Hon'ble Supreme Court addressed the question as to whether a

notification issued under Section 4 of the 1894 Act prior to January 1, 2014,

(date of commencement of 2013 Act) "could continue or survive after

01.01.2014 and, as to whether Section 6 notification under the L.A. Act

could be issued after 01.01.2014.

16. The Hon'ble Supreme Court answered the aforesaid questions follows:-

"32. We think that while considering those questions we will have

to bear in mind the purposes and the legislative history of the 2013

Act and also the intention of the legislature in drafting the same in

the manner in which it now exists. We have already dealt with

those aspects. One crucial aspect discernible from Section

24(1)(a) has also to be taken note of in this context. The combined

effect of Section 24(1) and clause (a) thereof is that if land

acquisition proceeding under the L.A. Act was initiated prior to

01.01.2014, the date of coming into force of the 2013 Act, and if it

was not culminated in an award under Section 11 of the L.A. Act,

then all the provisions of the 2013 Act relating to the

determination of compensation should apply to such acquisition

proceedings. Thus, it is obvious that in case of non-passing of an

award in terms of Section 11 of the L.A. Act where the acquisition

proceedings have been initiated prior to 01.01.2014, all provisions

under the 2013 Act relating to the determination of compensation

alone would apply to such acquisition proceedings. In other words,

it would mean that in such circumstances the land acquisition

proceedings should continue, but all the provisions relating to the

determination of compensation under the 2013 Act alone will be

applicable to such proceedings, meaning thereby, the 2013

Act would come into play only at that stage. There can be no doubt

with respect to the position that between the initiation of land

acquisition proceedings by issuance and publication of notice

under Section 4(1) of the L.A. Act and the stage at which

compensation for the acquisition calls for determination, there are

various procedures to be followed to make the acquisition in

accordance with the law. The question is when Section 24(1) of the

2013 Act makes it clear with necessary implication that all

provisions of the 2013 Act relating to the determination of

compensation alone would be applicable to such proceedings

initiated under the L.A. Act but, not culminated in an award, how

the procedures are to be regulated during the intervening period

till the proceedings reach the stage of determination of

compensation. There cannot be any uncertainty on that aspect.

The procedures to be undertaken and the manner in which they

are to be regulated cannot remain uncertain. They are conducted

either in the manner provided under the L.A. Act or in the manner

provided under the 2013 Act. But then, in view of Section 24(1)(a),

the provisions relating to the determination of compensation alone

can be applied to such proceedings or in other words, there is only

a restricted application of the provisions of the 2013 Act in

relation to such proceedings. The inevitable conclusion can only be

that what is applicable to the various procedures to be undertaken

during the period up to the stage of determination of compensation

are those prescribed under the L.A. Act. We have no doubt that

without such a construction, the provisions under Section

24(1)(a) would not work out, in view of the restrictive application of

the 2013 Act. It is in this context that the decision in 'Ambica

Quarry Works' case (supra) assumes relevance. Any construction

of the said provision without taking into the legislative intention,

referred hereinbefore would defeat the legislative intention as also

the very objects of the 2013 Act. Certainly, it would not be in

public interest to allow such proceedings to lapse or allow the

authorities to follow the procedures during such period according

to their sweet will. A uniform procedure has to be followed in

respect of such proceedings. The acquisitions initiated for public

purposes should go on in a fair and transparent manner with a

view to achieve the intent and purport of the 2013 Act and at the

same time, the persons affected shall have definite idea about the

manner in which procedures would be conducted. The Party 'B'

would not be justified in describing such situations of necessity

and the consequential application of provisions which are actually

saved on account of the construction of Section 24 as an attempt

to bring the words expressly employed in Section 24(1)(b) and

absent in Section 24(1)(a), by indirect method to Section 24(1)(a) of

the 2013 Act. The aforesaid conclusions and findings would make

the contentions of Party 'B' that Section 4(1) notification issued

prior to 01.01.2014 could not survive after 01.01.2014 and also

that Section 6 notification under the L.A. Act could not be issued

after 01.01.2014, unsustainable. In fact, all such procedures and

formalities shall be continued till the determination of

compensation by applying all the provisions for determination of

compensation, under the 2013 Act. A contra-construction, in view

of the restrictive application of the provisions to such proceedings

during its continuance, would make the provisions under Section

24(1)(a) of the 2013 Act unworkable."

17. Therefore, the law laid down by the Hon'ble Supreme Court appears to

be that a Section 4 notification under the 1894 Act issued prior to January

1, 2014, would be alive even after that date notwithstanding that as on that

date no Award had been made. Proceedings will continue in terms of the

provisions of the 1894 Act in so far as the procedure is concerned till the

stage of determination of compensation. However, compensation will be

computed applying the provisions of the 2013 Act relating to determination

of compensation.

18. Accordingly, we do not find any infirmity in the judgment and order

assailed before us. The learned Judge has directed the competent authority

to determine the market value of the land in question in terms of Section 26

of the 2013 Act and thereafter follow the process of law as laid down under

that Act. We simply clarify, following the decision in the case of Haryana

State Industrial and Infrastructure Development Corporation Ltd &

Ors. v. Mr. Deepak Agarwal (supra) that proceedings will continue

following the procedure laid down in the 1894 Act excepting that the

provisions in the 2013 Act relating to determination of compensation shall

be applicable for computation of compensation.

19. As regards the point of delay, in Vidya Devi v. The State of Himachal

Pradesh & Ors. reported at (2020) 2 SCC 569=AIR 2020 SC 4709, the

Hon'ble Supreme Court, held, inter alia, as follows:-

"10.1. The Appellant was forcibly expropriated of her property in

1967, when the right to property was a fundamental right

guaranteed by Article 31 in Part III of the Constitution.

Article 31 guaranteed the right to private property, which could

not be deprived without due process of law and upon just and fair

compensation.

10.2 The right to property ceased to be a fundamental right by the

Constitution (Forty Fourth Amendment) Act, 1978, however, it

continued to be a human right in a welfare State, and a

Constitutional right Under Article 300A of the Constitution. Article

300A provides that no person shall be deprived of his property save

by the authority of law. The State cannot dispossess a citizen of 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.

To forcibly dispossess a person of his private property,

without following due process of law, would be violative of a human

right, as also the Constitutional right under Article 300A of the

Constitution.

Reliance is placed on the judgment in Hindustan Petroleum

Corporation Ltd. v. Darius Shapur Chennai MANU/SC/0610/2005:

(2005) 7 SCC 627, wherein this Court held that:

6. ... Having regard to the provisions contained in article 300-A

of the Constitution, the State in exercise of its power of

"eminent domain" may interfere with the right of property of a

person by acquiring the same but the same must be for a public

purpose and reasonable compensation therefor must be paid.

In N. Padmamma v. S. Ramakrishna Reddy

MANU/SC/7731/2008 : (2008) 15 SCC 517, this Court held that:

21. If the right of property is a human right as also a

constitutional right, the same cannot be taken away except in

accordance with law. Article 300-A of the Constitution protects

such right. The provisions of the Act seeking to divest such

right, keeping in view the provisions of Article 300-A of the

Constitution of India, must be strictly construed.

In Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors.

MANU/SC/0956/2011 : (2011) 9 SCC 354, this Court recognized the

right to property as a basic human right in the following words:

30. It is accepted in every jurisprudence and by different

political thinkers that some amount of property right is an

indispensable safeguard against tyranny and economic

oppression of the Government. Jefferson was of the view that

liberty cannot long subsist without the support of property.

"Property must be secured, else liberty cannot subsist" was the

opinion of John Adams. Indeed the view that property itself is

the seed bed which must be conserved if other constitutional

values are to flourish is the consensus among political thinkers

and jurists.

In Jilubhai Nanbhai Khachar v. State of Gujarat

MANU/SC/0033/1995 : (1995) Supp. 1 SCC 596 this Court held as

follows:

48. ... In other words, Article 300-A only limits the powers of

the State that no person shall be deprived of his property save

by authority of law. There has to be no deprivation without any

sanction of law. Deprivation by any other mode is not

acquisition or taking possession under Article 300-A. In other

words, if there is no law, there is no deprivation.

10.3. In this case, the Appellant could not have been forcibly

dispossessed of her property without any legal sanction, and

without following due process of law, and depriving her payment of

just compensation, being a fundamental right on the date of forcible

dispossession in 1967.

...........

10.5 In a democratic polity governed by the Rule of law, the

State could not have deprived a citizen of his property without the

sanction of law. Reliance is placed on the judgment of this Court in

Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors.

MANU/SC/0933/2012 : (2013) 1 SCC 353 wherein it was held that

the State must comply with the procedure for acquisition, requisition,

or any other permissible statutory mode. The State being a welfare

State governed by the Rule of law cannot arrogate to itself a status

beyond what is provided by the Constitution.

This Court in State of Haryana v. Mukesh Kumar held that

the right to property is now considered to be not only a constitutional

or statutory right, but also a human right. Human rights have been

considered in the realm of individual rights such as right to shelter,

livelihood, health, employment, etc. Human rights have gained a

multi-faceted dimension.

...........

10.7. The contention advanced by the State of delay and laches of

the Appellant 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 a matter of judicial discretion, which

must be exercised judiciously and reasonably in the facts and

circumstances of a case. It will depend upon the breach of

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

the delay arose. There is no period of limitation prescribed for the

courts to exercise their constitutional jurisdiction to do substantial

justice.

In a case where the demand for justice is so compelling, a

constitutional Court would exercise its jurisdiction with a view to

promote justice, and not defeat it.

In Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors.,

MANU/SC/0933/2012 : (2013) 1 SCC 353 this Court while dealing

with a similar fact situation, held as follows:

There are authorities which state that delay and

laches extinguish the right to put forth a claim. Most of these

authorities pertain to service jurisprudence, grant of

compensation for a wrong done to them decades ago, recovery

of statutory dues, claim for educational facilities and other

categories of similar cases, etc. Though, it is true that there are

a few authorities that lay down that delay and laches debar a

citizen from seeking remedy, even if his fundamental right has

been violated, Under Article 32 or 226 of the Constitution, the

case at hand deals with a different scenario altogether.

Functionaries of the State took over possession of the land

belonging to the Appellants without any sanction of law. The

Appellants had asked repeatedly for grant of the benefit of

compensation. The State must either comply with the procedure

laid down for acquisition, or requisition, or any other

permissible statutory mode."

20. It may also be noted that in almost all the cases where the Hon'ble

Supreme Court has refused to entertain a land loser's legal action on the

ground of delay or laches, were cases where the land loser challenged the

acquisition proceedings after undue delay. This is obviously because such

person, having permitted utilization of his land by not challenging the

acquisition promptly, disentitled himself from challenging the legality of the

acquisition proceedings. However, such a person's claim to compensation

cannot be defeated by the State on the ground of delay.

21. In the facts of the present case, the State having deprived the writ

petitioners of their property without following due process of law and

without paying any compensation-which is really an act of expropriation-the

State cannot be permitted to argue that the delay on the part of the writ

petitioners in approaching the Court will cause imposition of greater

financial burden on the State since in the mean time the 2013 Act has come

into operation and holds the field. Had the State acted in accordance with

law, it could have avoided the additional financial burden, if any, that may

be foisted on it by reason of compensation being calculated in terms of the

provisions of the 2013 Act. In this connection one may refer to the decision

of a Coordinate Bench rendered on September 29, 2022 in MAT 464 of

2018 (The State of West Bengal & Ors. v. Dilip Ghosh & Ors.).

22. In view of the aforesaid, we find no merit in the appeal which is

dismissed along with the connected applications. We direct the First Land

Acquisition Collector/ the Competent Authority to complete the process of

determination of the compensation amount, in light of the observations

made in this judgment, within 12 weeks from date and pay the amount to

the respondent/writ petitioner within two weeks thereafter.

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

supplied to the parties subject to compliance with all the requisite

formalities.

(ARIJIT BANERJEE, J.)

I agree.

(APURBA SINHA RAY, J.)