Calcutta High Court (Appellete Side)
Smt. Sankari Naskar & Ors vs The State Of West Bengal & Ors on 17 August, 2023
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
F.M.A.1552 of 2011
IA NO: CAN/2/2019(Old No:CAN/5250/2019)
Smt. Sankari Naskar & ors.
Vs.
The State of West Bengal & ors.
For the appellants : Mr. Saptansu Basu, Sr. Advocate
Mr. Ayan Banerjee, Advocate
Mr. Nimai Chandra Betal, Advocate
Mr. Suresh Kumar Sahoo, Advocate
For the State : Mr. Tapan Kr. Mukherjee,
Sr. Advocate & A.G.P.
Mr. Supratim Dhar, Advocate
Hearing on : 17.08.2023
Judgment on : 17.08.2023
DEBANGSU BASAK, J.:-
1.
The appeal is directed against an order dated June 17, 2008
passed in W.P.23476 (W) of 1997.
2. Learned Senior Advocate appearing for the appellants submits
that, the appellants are owners of premises No.10/3 and 10/4 Danesh
Sheikh Lane, Howrah. He contends that those two premises are not
included in the notification for acquisition. His clients are in possession
of the properties. He refers to the notification for acquisition dated May
26, 1964.
3. Referring to the notification dated May 26, 1964, the learned
Senior Advocate appearing for the appellants submits that, the
notification is vague. It does not enumerate premises nos.10/3 and
10/4, Danesh Sheikh Lane, Howrah as the premises which were sought
to be acquired.
4. Moreover, referring to the description of the boundary given in
such notification, learned Senior Advocate appearing for the appellants
submits that, premises no.10 is also shown as forming part of the
boundary of the property sought to be acquired. According to him, since
premises No.10 was shown as boundary, therefore, a portion of premises
no.10 was left out of the purview of the acquisition. Alternatively, it
highlights the vagueness of the notification.
5. Referring to the Howrah Municipal records, learned Senior
Advocate appearing for the appellants submits that premises no.10 was a
large plot of land. It was bifurcated into 8 different parts starting from
premises no.10 to premises no.10/7 in or about 1956-57, much prior to
the notification dated May 26, 1964. . He submits that, the notification
dated May 26, 1964 proceeded on the basis of municipal holding
number. The bifurcation was recorded in the year 1956-57. Therefore,
the authorities were incorrect in proceeding on the basis of Municipal
holding number and claiming that, premises no.10/3 and premises
no.10/4 were also included in the acquisition proceedings when, no such
number was enumerated in the notification under Section 4 of the Land
Acquisition Act, 1894.
6. Learned Senior advocate appearing for the appellants relies upon
the documents annexed to the application under Order XLI Rule 27 of
the Code of Civil Procedure, 1908. He submits that, the bifurcation of
premises no.10 occurred in 1956-57 as appearing from the documents
annexed to such application.
7. Referring to the impugned order dated June 17, 2008, learned
Senior Advocate appearing for the appellants submits that, the impugned
order erroneously proceeds on the basis that the acquisition proceedings
were in respect of premises nos.10/3 and 10/4 when actually it was not.
No notice in respect of the acquisition proceedings for such premises
were served upon any of the appellants or their predecessor-in-interest.
No previous enquiry under Section 4 of the Act of 1894 was carried at the
locale. Since, the appellants or the predecessors-in-interest of the
appellants were not favoured with any notice under Section 4 of the
1894, the appellants were deprived of the rights enshrined under the
provisions of the Act of 1894. The appellants could not challenge the
violation of the provisions of the Act of 1894 or the award passed in
respect of the acquisition proceedings. No copy of the award was served
upon the predecessors-in-interest of any of the appellants or the
appellants, under Section 11 of the Act of 1894. According to him, the
entire acquisition proceeding was vitiated. They were undertaken in
violation of the provisions of the Act of 1894. Therefore, no acquisition
took place in respect of premises nos.10/3 and 10/4. Such premises be
declared to be beyond the so-called acquisition.
8. Learned Senior Advocate appearing for the appellants relies upon
(2005) 13 Supreme Court Cases 477 (Competent Authority vs.
Baranagore Jute Factory and others) and submits that, since the
notification was vague, the entire acquisition proceeding stood vitiated.
9. Relying upon (2005) 10 Supreme Court Cases 306 (Om Prakash
Sharma and others vs. M.P. Audyogik Kendra Vikas Nigam and
others) learned Senior Advocate appearing for the appellants submits
that, the notification herein was vague and therefore, entire proceeding
stood vitiated.
10. Relying upon (2018) 8 Supreme Court Cases 266 (Vijay
Mahadeorao Kubade vs. State of Maharashtra) learned Senior
Advocate appearing for the appellants submits that none of the claim of
the appellants are barred by limitation in view of the fact that notice
under Sections 4, 6 and 11 were not served upon either any of the
appellants or their predecessors-in-interest.
11. Learned Senior Advocate appearing for the State submits that, all
the appellants and their predecessors-in-interest were aware of the
acquisition proceeding. He highlights the delay in the appellants
approaching the High Court by way of the writ petition. Referring to
averments made in the affidavit-in-opposition, learned Senior Advocate
appearing for the State submits that, the notification under Section 4
was published on June 25, 1964 for an area of 17.10 acres out of which,
an area of 4.5435 acres was cancelled by the notification dated January
18, 1969. Therefore, the total area under the notification Section 4 of the
Act of 1894 was 12.5565 acres.
12. Learned Senior Advocate appearing for the State submits that, the
notification under Section 4 of the Act of 1894 correctly and properly
describes the property sought to be acquired.
13. Referring to the records produced before Court, pursuant to the
order dated November 25, 2022, learned Senior Advocate appearing for
the State submits that, the predecessors-in-interest of the appellants
were issued notices under Sections 9(1) and 9(3) of the Act of 1894. The
area held by the predecessors-in-interest by the appellants were noted in
the award notesheet. He contends that, an award was passed in respect
of the acquisition proceeding. He refers to the contents of the award. He
submits that, municipal holding no.10 was acquired as will appear from
the contents of the award. He submits that, initially apportionment was
not done. Subsequently, in view of the order dated November 9, 1976,
passed in C.R.1476 (W) of 1972 apportionment was also carried out. He
submits that, the predecessors-in-interest of the appellants were parties
to such writ petition.
14. Learned Senior Advocate appearing for the State submits that, the
predecessors-in-interest of the appellants, were aware of the acquisition
proceeding. They raised objections. Their objections were considered. In
fact, the award was also apportioned. He refers to the provisions of
Sections 12 and 16 of the Act of 1894 and submits that, since, none of
the predecessors-in-interest of the appellants came to collect the money
awarded on apportionment, the money was kept as a revenue deposit.
15. Referring to a letter written by one of the predecessors-in-interest
of the appellants, to the Additional Land Acquisition Officer, learned
Senior Advocate appearing for the State submits that the appellants were
aware of the proceeding. Consequently, he submits that no interference
is called for with regard to the impugned order.
16. By the impugned order dated June 17, 2008, the learned Trial
Judge, held that, there was no dispute with regard to issuance of
notification under Section 4 of the Act of 1894 in respect of the land in
question. Learned Trial Judge also found that there was no dispute with
regard to declaration under Section 6 of the Act of 1894 being published.
The learned Trial Judge also found that there was an award made in the
proceeding. Consequently, the learned Trial Judge did not find any
merits in the claims made by the appellants.
17. There is a notice under Section 4 of the Act of 1894 in respect of
few premises which were under acquisition in such proceeding for
acquisition.
18. The notification under Section 4 of the Act of 1894 dated May 6,
1964, refers to municipal holding nos.8 to 11 in respect of the street
concerned. It is the common case of the parties that the acquisition
proceeding proceeded on the basis of municipal holding number.
19. Consequently, municipal holding nos.8 to 11 will obviously bring
within its ambit premises no.10 and the bifurcated premises of premises
no.10 thereof.
20. We gave anxious consideration to the contention of the appellants
that they were not aware that premises no.10/3 and premises no.10/4,
which were borne out of the bifurcation of premises no.10, and
bifurcation being completed in the year 1956-57 as appearing from the
municipal records, were part of the acquisition proceeding.
21. The appellants are the heirs and legal representatives of late
Amulya Naskar, late Chandra Sekhar Naskar and late Sushil Naskar.
Late Amulya Naskar, late Chandra Sekhar Naskar and late Sushil
Naskar appeared in the proceeding before the Collector raising objections
to the acquisition proceedings. This fact is established by the records
produced by the State in Court in terms of the order dated November 25,
2022.
22. An objection was taken on behalf of the appellants that, the
records produced by the State, purported to be in compliance with the
order dated November 25, 2022 should not be considered as they were
not part of the Trial Court records and no application under Order 41
Rule 27 of the Code of Civil Procedure, 1908 was made in respect thereof.
23. We are unable to accept such contention of the appellants on the
ground that, the records were called for by the order dated November 25,
2022 by the coordinate Bench. The appellants did not object to the
production of such records at the material point of time. In any event,
the appellants prayed for a writ of certiorari in the writ petition in respect
of records of the acquisition proceeding. Moreover, the Appeal Court is
clothed with the power to consider the records of a case, if so required.
The coordinate Bench exercised its discretion and called for the records
of the acquisition proceeding.
24. The participation of the predecessors-in-interest of the appellants,
in the acquisition proceeding before the Collector, as appearing from the
records produced before Court and as highlighted on behalf of the State
and as noted in the contention on behalf of the State, establishes the fact
that, the appellants were aware of the exact nature, scope and extent of
the acquisition proceeding. They were aware that the premises no.10/3
and premises no.10/4 were involved in the acquisition proceeding. It is
now late in the day for any of the appellants to raise objections with
regard to the vagueness of the notice issued under Section 4 of the Act of
1894 dated May 26, 1964.
25. Vijay Mahadeorao Kubade (supra) and Om Prakash Sharma and
others (supra) found that the notices issued under the Act of 1854 were
vague, in the facts and circumstances of those cases. In the facts and
circumstances of the present case, as noted above, there was active
participation by the predecessors-in-interest of the appellants, in the
acquisition proceeding leading right upto the award being passed
including its apportionment pursuant to an order of the High Court in a
writ petition where the predecessor-in-interest of the appellants were
parties. Therefore, it cannot be said that the appellants were not aware of
the extent of the acquisition proceeding as sought to be contended
therein.
26. In Baranagore Jute Factory and others (supra) the Supreme
Court held that since the notification speaks of acquisition of a part of a
plot, without specifying which part of the plot is sought to be acquired,
the notice for acquisition was said to be bad in law being vague.
27. Again the factual scenario herein is completely different. The
acquisition proceedings were initiated on the basis of municipal holding
numbers. In any event, as noted above, the predecessors-in-interest of
the appellants participated in the acquisition proceeding and therefore,
the extent, nature and scope of the acquisition was known to them.
28. Significantly, the predecessors-in-interest of the appellants were
party respondents in C.R.1476 (W) of 1972 which was disposed of by an
order dated November 9, 1976, requiring the Collector to apportion the
value of the award amongst the co-owners. At that stage also, the
predecessors-in-interest of the appellants did not inform the High Court
that, their properties were not under acquisition or that premises
no.10/3 and premises no.10/4 were not covered under the acquisition.
29. It is the contention of the appellants that premises no.10 was also
owned by the same predecessors-in-interest of the appellants as that
premises no.10/3 and premises no.10/4 and therefore, the
apportionment spoken of in the order dated November 9, 1976, passed in
C.R.1476 (W) of 1972 was limited to premises No.10 only.
30. With the deepest of respect, we are unable to accept such
contention since, the area of land comprised in premises no.10 after
bifurcation and the area of land which is comprised in all the premises
commencing from premises no.10 to premises no.10/7 are not the same,
obviously. A larger portion of the area was acquired. Award was passed
in respect of the larger area. Award was apportioned as directed by the
High Court in presence of the predecessors-in-interest of the appellants.
They understood the order to be so. They worked upon such order.
Therefore, at this stage, the contention that, the appellants or their
predecessors-in-interest were not aware of the entire extent and nature
of the acquisition is belated as appearing from the materials produced in
Court.
31. In such circumstances, we find no merit in the present appeal.
32. F.M.A. 1552 of 2011 along with connected application are
dismissed without any order as to costs.
33. However, since we considered the documents sought to be
produced by the appellants in their application under Order 41 Rule 27
of the Code of Civil Procedure, 1908, such application stands allowed.
(Debangsu Basak, J.)
34. I agree.
(Md. Shabbar Rashidi, J.)
CHC
