Calcutta High Court (Appellete Side)

Sri Himangshu Mallick & Anr vs The State Of West Bengal & Ors on 23 August, 2023

                IN THE HIGH COURT AT CALCUTTA
                 Constitutional Writ Jurisdiciton
                            Appellate Side
     Present:
     The Hon'ble Justice Debangsu Basak
                         And
     The Hon'ble Justice Md. Shabbar Rashidi
                          FMA 689 of 2022
                                 With
                        IA NO.: CAN 1 of 2022

                     Sri Himangshu Mallick & Anr.
                                   Versus
                 The State of West Bengal & Ors.


     For the appellant    : Mr. Avijit Sarkar, Adv.
     For the State         : Mr. Supratim Dhar, Adv.

     For the KMDA :        : Mr. Satyajit Talukdar, Adv.
                           : Ms. Piu Karmakar, Adv.

     Heard on              : July 26, 2023

     Judgement on          : August 23, 2023


Md. Shabbar Rashidi, J.:

1.        The instant appeal is in assailment of judgment and

     order passed on February 09, 2022 in WPA 4165 of 2018.


                               1
 2.        Fact giving rise to the present litigation is that an

     acquisition proceeding was initiated in the year 1971 in

     respect of 2 Cottah 10 chittack and 36 Sq. ft. of land

     appertaining to premises No. 351, Prince Anwar Shah

     Road, Kolkata. An award was declared on January 9,

     1979 in favour of predecessor-in-interest of the appellant.

     Being dissatisfied with the award, the predecessor-in-

     interest of the appellant sent a reference petition for

     enhancement of compensation. The reference so filed was

     disposed of on January 03, 1995 by modifications in the

     award. In the meantime the original owner of the

     acquired land died and the appellants stepped into her

     shoes.

3.        The appellants did not receive the award amount for

     which, they came up with the writ petition No. WPA 4165

     of 2018 seeking direction upon the respondents for the

payment of the compensation.

4. By the impugned order dated February 09, 2022,

learned Single Judge dismissed the writ petition on the

ground of stale demand. The impugned order noted that

the appellants slept over their demand since January 03,

1995, when the award was finally modified till filing of

the writ petition in the year 2018. It was also noted in the

impugned order that during all this period of 23 years,

the appellants never approached the appropriate court

for execution of the award as the award passed under

Calcutta Improvement Act, 1911 was executable before

the court of Small Causes, Calcutta.

5. It was contended on behalf of the appellants that

they were assured by the advocate for the claimant

conducting the reference case that they will be informed

as and when the award money would be deposited. The

said advocate expired on September 20, 2015. Since the

money was not paid by the respondents, a notice was

served upon the respondent through their advocate

demanding the award amount.

6. It has also been submitted on behalf of the appellant that

by not making the payment of the award money, the

respondents have violated the fundamental rights of the

appellants. Learned advocate for the appellants further

submitted that learned trial court failed to consider that

the appellants advanced sufficient cause which prevented

them from approaching the appropriate authorities

within due time.

7. Learned advocate for the appellant has relied upon

the authority in the case reported in 1942 OnLine Cal

119 (Asmaboo Kurban Hossain and Ors Vs. Province

of Bengal) on the proposition that Section 82 of the Code

of Civil Procedure with regard to execution of decree was

not applicable in the facts of the present case.

8. Learned advocate for the appellant also submitted

that although, a plausible explanation for delayed

demand has been put forward, nevertheless, a claim for

compensation of land acquisition is constitutional right

guaranteed under Article 300A of the Constitutions of

India and it has a continuous cause of action. Therefore,

no limitation is prescribed for such claim. In support of

such proposition, learned advocate for the appellant

relied upon 2022 SCC OnLine Cal 1328 (Ajet Ali

Baidya V. State of WB), (2020) 4 SCC 572 (B. D.

Basnett v. Collector, East District, Gangtok, Sikkim

and Anr.) and (2022) 7 SCC 508 (Sukh Dutt Ratra V.

State of Himachal Pradesh).

9. Learned advocate for the appellant also cited the

authority in (2013) 1 SCC 353 (Tukaram Kana Joshi V.

MIDC) on the proposition that delay in approaching court

is not an impediment in exercising judicial discretion and

rendering substantial justice.

10. Relying on AIR 1991 SC 1080 (Mangat Ram

Tanwar V. Union of India) learned advocate for the

appellant also contended that States and the Court are

duty bound to ensure payment of compensation for land

acquisition.

11. On the other hand, the learned advocate for the

respondent State submitted that the petitioners sat over

their claim for the award money for long 23 years. The

never approached the Small Causes Court, Kolkata for

execution of the award in terms of the provisions of

Section 77(2) of the Calcutta Improvement Act, 1911

within the limitation prescribed under Article 136 of the

Limitation Act, 1963.

12. It was further contended that no reasonable

explanation has been advanced for the inordinate delay

of over 23 years in approaching the writ court. In the

meantime, the Calcutta Improvement Act, 1911 stood

repealed. The claim of the appellant stood barred by

limitation. In support of their contentions State has relied

upon (2011) 5 SCC 394 (Banda Development

Authority V. Motilal Agarwal and Others), (1995) 4

Supreme Court Cases 683 (State of Maharashtra V.

Digambar), (2012) 1 Supreme Court Cases 66

(Leelawati and Others V. State of Haryana and

Others), 1964 SCC OnLine SC 10 (State of

MadhyPradesh V. Bhailal Bhai) and 2017 SCC OnLine

Cal 14082 (Nanda Roy V. State of West Bengl & Anr.).

13. As noted, a land acquisition proceeding under

Calcutta Improvement Act was initiated in respect of 2

Cottah 10 chittack and 36 Sq. ft. of land appertaining to

premises No. 351, Prince Anwar Shah Road, Kolkata

belonging to the predecessor-in-interest of the present

petitioner. The proceeding was started in the year 1971

and an award was passed on January 9, 1979. The

predecessor-in-interest of the writ petitioners preferred a

reference, being dissatisfied with the award. Such

reference was disposed by an order passed on January

03, 1995 modifying the original award.

14. It has been contended by the petitioners that

Calcutta Improvement Trust never deposited the award

money inspite of a direction to deposit the same within

three months. Be that as it may, the award money was

never paid to the claimant. In the meantime, the original

claimant died and the writ petitioners succeeded the

claimant.

15. Having not received the award money, learned

advocate for the writ petitioners served a notice upon the

respondents demanding the award money on September

20, 2017. Having seen the grievances not redressed, the

appellants approached the writ court in 2018 seeking a

direction upon the respondents to pay off the award

money to them. In the meantime, Calcutta Improvement

Act stood repealed in the year 2017.

16. By the impugned order, learned single judge

negated the claim of the writ petitioners on the ground of

delay. It was contended that the appellants never

approached the Small Causes Court, in terms of Section

77 (2) of the Calcutta Improvement Act, 1911, for

execution of the award and no reasonable explanation

has been advanced on behalf of the appellants for the

inordinate delay.

17. Admittedly, the award was passed by the land

acquisition collector on January 09, 1979 and the award

was modified by the Calcutta Improvement Tribunal on

January 03, 1995. In order to explain the delay, it has

been asserted that the lawyer conducting the land

acquisition proceeding on behalf of the claimant died on

September 20, 2015. The appellants were dependent

upon the said lawyer. Later on a letter demanding the

award amount was served upon the respondent through

their advocate in the year 2017.

18. Section 77 of the repealed Calcutta

Improvement Act, 1911 provided for such execution in

the following terms:

          77.      Award             of         Tribunal      how    to   be

          determined.            -        (1)    For    the   purpose      of

determining the award to be made by the

Tribunal under the Land Acquisition Act,

1894 -

(a) if there is any disagreement as to the

measurement of land, or the amount of

compensation or costs to be allowed, the

opinion of the majority of the members of

the Tribunal shall prevail;

(b) questions relating to the determination

of the persons to whom compensation if

payable, or the apportionment of

compensation, may be tried and decided in

the absence of the assessors if the

President of the Tribunal considers their

presence unnecessary; and when so tried

and decided, the decision of the President

shall be deemed to be the decision of the

Tribunal; and

the foregoing clauses, the decision on all

questions of law and procedure shall rest

solely with the President of the Tribunal.

(2) Every award of the Tribunal, and every

order made by the Tribunal for the

payment of money, shall be enforced by the

Court of Small Causes of Calcutta as if it

were a decree of that Court.

20. It is nobody's case that the acquisition of the land

belonging to the predecessor-in-interest of the appellants

was done without following the due process of law. The

only ground for negating the claim of the appellant noted

by learned trial judge was inordinate delay in

approaching the court.

21. In the case of Ajet Ali Baidya (Supra) the

Coordinate Bench had noted that,

"20. We are, however, of the opinion that

there might be some delay on the part of

the petitioners in approaching this Court,

but since the right to property is a

valuable right flowing from Article 300A of

the Constitution of India, merely on the

ground of delay the State cannot deny its

obligation to compensate the petitioners."

22. It further noted that,

"23. It is immaterial that the possession of

lands in question was taken in the year

1993 without any acquisition. Fact

remains that the acquisition proceeding

was revived only in the year 1999, by the

issuance of a notice under Section 9(3A) of

the Land Acquisition Act, 1894 as

amended by the West Bengal State

Amendment Act. The writ petitioners

approached this Court in the year 2005.

Therefore, delay, if any, in this case, is not

as fatal so as to frustrate a claim for

compensation which is guaranteed under

Article 300A of the Constitution of India."

23. Mangat Ram (Supra) is also relating to acquisition

under the Land Acquisition Act. The ratio laid down in the

said case is directed against early disposal of the petitions

for reference filed on behalf of objecting land owners. It was

noted that there should be an endeavour to dispose of such

applications within a period of three months of being made.

In the instant case, however, the delay involved can be

attributed to both the appellants/petitioners as well as the

respondents. The appellants did not approach the court for

a considerable period but at the same time the respondents

also took enough time in disposing of the proceeding. A

land acquisition proceeding was started in 1971. Award

was made in 1979. The appellants preferred a reference

petition in 1989 which was disposed in 1995.

24. In the case of D. B. Basnett (Supra) it was noted

that the land was found to be acquired without following

due process of law and the land owners were directed to be

paid with compensation for unauthorized use and

occupation of the land from the date of possession. It noted

that,

"19. The result of the aforesaid would be

that the respondents have failed to

establish that they had acquired the land

in accordance with law and paid due

compensation. The appellant would, thus,

be entitled to the possession of the land as

also damages for illegal use and

occupation of the same by the respondents,

at least, for a period of three (3) years

prior to the notice having been served upon

them. We are strengthened in our

observations on account of the judgment of

this Court in LAO v. M. Ramakrishna Reddy

[LAO v. M. Ramakrishna Reddy, (2011) 11

SCC 648 : (2011) 4 SCC (Civ) 633] , wherein

it was held that the owner can be entitled

to damages for wrongful use and

possession of land in respect of which no

notification is issued under Section 4 of

the Land Acquisition Act, from the date of

possession till the date such notification is

finally published."

25. In the case at hand, however, land was acquired in

accordance with the provisions of an established law i.e.

Calcutta Improvement Act, 1911. All the legal formalities

under the act were duly complied with. The predecessor-in-

interest of the appellants preferred an application for

reference which was also disposed of in accordance with

law, though with considerable delay.

26. Similarly, in the case of Sukh Dutt Ratra (Supra)

the Hon'ble Supreme Court reiterated the right to property

of an individual guaranteed under Article 300A of the

Constitution of India. At the same time the Hon'ble Court

was pleased to extend the benefits of getting compensation

to the petitioners for the reason that their lands were

acquired without following the due procedure. In the said

case, the Hon'ble Court noted that,

"18. There is a welter of precedents on delay and laches which conclude either way--as contended by both sides in the present dispute--however, the specific factual matrix compels this Court to weigh in favour of the appellant landowners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a "limitation" to doing justice. This Court in a much earlier case -- Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, (1969) 1 SCR 808 : AIR 1969 SC 329] , held : (AIR pp. 335-36, para 11)

"11. ... 'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded

as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.

But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy'."

27. The case of Tukaram Kana Joshi (Supra) also dealt

with a case where land of an individual was acquired

without following due process of law. The Hon'ble Court

upheld the right to property of a citizen and directed

notification of acquisition. The Hon'ble Court also noted

adjudication of delay in setting up of a stale claim equitably

commensurate to substantial justice based on facts and

circumstances of each case.

28. In the case of Asmaboo Kurban Hossein (supra), it

was held that for execution contemplated under Section

77(2) of the Calcutta Improvement Act was to be carried

following the procedure laid down in the Section 82 of the

Code of Civil Procedure. The Coordinate Bench of this

Court held in the aforesaid case that,

"It seems to me, on hearing the learned

advocate on both sides, that s. 82 of the

Civil Procedure Code has got no application

to an award made by the Improvement

Trust Tribunal on a reference made to it by

the Land Acquisition Collector of Calcutta.

Section 82 occurs in Part IV of the Civil

Procedure Code, which deals with suits in

particular cases, and ss. 79 to 82 of that

Chapter are devoted to suits by or against

the Crown or public officers in their official

capacity. Section 79 lays down how the

authorities are to be described in a suit by

or against the Crown. Section 80 provides

that no suit shall be instituted against the

Crown or any public officer in respect of any

act purporting to be done by such officer in

his official capacity until the expiration of

two months next after a notice in writing,

in terms of the section, was served upon the

Crown or the public officer as the case may

be. Section 81 exempts a public officer who

is thus sued from arrest and personal

appearance. Section 82 then lays down that,

when the decree is against the Crown or

against a public officer in respect of any

such act as aforesaid, a time shall be

specified in the decree within which it shall

be satisfied; and if the decree is not

satisfied within the time so specified, the

Court shall report the case for orders of the

Provincial Government. It further provides

that execution shall not be issued on any

such decree unless it remains unsatisfied

for the period of three months computed

from the date of such report. Thus, it seems

clear that s. 82 is confined to decrees

passed in suits which are referred to in

previous sections and which can only be

instituted after service of notice under s. 80

of the Code of Civil Procedure. The object of

the section undoubtedly is to allow time

and opportunity to the Crown or public

officers to satisfy the decree amicably

before execution proceedings are allowed to

be started against them. I do not think that

this provision can, be applied to an award

made by the Improvement Trust Tribunal.

Under s. 71, cl. (d) of the Calcutta

Improvement Act, the award of the Tribunal

shall be deemed to be the award of the

Court under the Land Acquisition Act, 1894.

Section 26 of that Act prescribes the form

of an award to be made by the Court. It lays

down that the award shall be in writing

signed by the Judge and shall specify that

amount awarded by cl. (1) of sub-s. (1) of s.

23 and also the amounts respectively

awarded under each of the other clauses of

the same sub-section. Section 77, cl. (2) of

the Calcutta Improvement Act provides that

every award of the Tribunal and every order

made by the Tribunal for the payment of

money shall be enforced by the Court of

Small Causes of Calcutta as if it were a

decree of that Court. I am inclined to think

that an award made by the Tribunal is not a

decree at all for purposes of the Civil

Procedure Code. It simply specifies the

amount of compensation that is allowed to

the claimant under several heads and the

grounds of awarding the said amount. Power

is given to the Calcutta Small Causes Court

to enforce the award as if it were a decree of

that Court; but, as a matter of fact, it is not

a decree of that Court or of the Court which

actually made it. It is true that by Act XIX

of 1921, sub-s. (2) was added to s. 26 of the

Land Acquisition Act of 1894, and this sub-

section provides that every such award shall

be deemed to be a decree and the statement

of the grounds of every such award a

judgment within the meaning of s. 2, cl. (ii)

and s. 2, cl. (ix) respectively of the Civil

Procedure Code, 1908. But as was held by

their Lordships of the Judicial Committee

in the case of Secretary of State for India in

Council v. Hindusthan Co-operative

Insurance Society, Limited [(1931) I.L.R. 59

Cal. 55 : L.R. 58 I.A. 259.] , the Calcutta

Improvement Act is a self-contained act and

it merely incorporates certain provisions

from the Land Acquisition Act, 1894, and it

was only for convenience of drafting that

the reference was so made instead of setting

out in extenso the provisions which it was

desired to adopt. Sub-section (2) of s. 26,

which was introduced by the amending Act

of 1921, cannot, therefore, be taken as a

part of the Calcutta Improvement Act of

1911.

But, even assuming for the sake of

argument that an award made by the

Tribunal is a decree, it is not a decree to

which s. 82 is applicable. Here there was no

suit against the Crown or any public officer

as such, as contemplated by Part IV of the

Civil Procedure Code and which could only

be instituted after service of notice under s.

80 of the Code. The Collector made an

award allowing compensation for land

compulsorily acquired under statutory

powers, and the party aggrieved exercised

his right of having a reference to the

Tribunal which has the right of making the

final award. There is no suit and no decree

against the Crown, though the award could

be enforced as if it was a decree.

29. In the case of Banda Development Authority

(Supra) the Hon'ble Supreme Court noted a delay of nine

years in approaching the writ court and held that,

"17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior courts is that the High Court will not entertain petitions

filed after long lapse of time because that may adversely affect the settled/crystallised rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits."

30. In the case of Digambar (Supra) the Hon'ble

Supreme Court noted that,

"20. Power of the High Court to be

exercised under Article 226 of the

Constitution, if is discretionary, its

exercise must be judicious and reasonable,

admits of no controversy. It is for that

reason, a person's entitlement for relief

from a High Court under Article 226 of the

Constitution, be it against the State or

anybody else, even if is founded on the

allegation of infringement of his legal

right, has to necessarily depend upon

unblameworthy conduct of the person

seeking relief, and the court refuses to

grant the discretionary relief to such

person in exercise of such power, when he

approaches it with unclean hands or

blameworthy conduct.

23. Therefore, where a High Court in

exercise of its power vested under Article

226 of the Constitution issues a direction,

order or writ for granting relief to a person

including a citizen without considering his

disentitlement for such relief due to his

blameworthy conduct of undue delay or

laches in claiming the same, such a

direction, order or writ becomes

unsustainable as that not made judiciously

and reasonably in exercise of its sound

judicial discretion, but as that made

arbitrarily."

31. In the case of Leelawanti and others (Supra) the

Supreme Court negated the stale claim of the petitioners

in following terms,

"13. We have considered the respective

submissions and examined the records. In

our view, the High Court did not commit

any error by not entertaining the

appellants' challenge to the acquisition of

land because they did not offer any

explanation for the long time gap of more

than three decades between the issue of

notifications under Sections 4 and 6 i.e.

1976 and filing of the writ petition i.e.

2007."

32. In Bhailal Bhai (Supra) Hon'ble Supreme Court

laid down that,

"21. The learned Judges appear to have

failed to notice that the delay in these

petitions was more than the delay in the

petition made in Bhailal Bhai case out of

which Civil Appeal No. 362 of 62 has

arisen. On behalf of the respondents-

to 867 of 1962) Mr Andley has argued that

the delay in these cases even is not such as

would justify refusal of the order for

refund. We argued that assuming that the

remedy of recovery by action in a Civil

Court stood barred on the date these

applications were made that would be no

reason to refuse relief under Article 226 of

the Constitution. Learned counsel is right

in his submission that the provisions of the

Limitation Act do not as such apply to the

granting of relief under Art 226. It appears

to us however that the maximum period

fixed by the legislature as the time within

which the relief by a suit in a Civil Court

must be brought may ordinarily be taken

to be a reasonable standard by which

delay in seeking remedy under Article 226

can be measured. The court may consider

the delay unreasonable even if it is less

than the period of limitation prescribed for

a civil action for the remedy but where the

delay is more than this period, it will

almost always be proper for the court to

hold that it is unreasonable. The period of

limitation prescribed for recovery of money

paid by mistake under the Limitation Act

is three years from the date when the

mistake is known. If the mistake was

known in these cases on or shortly after

January 17, 1956 the delay in making

these applications should be considered

unreasonable. If, on the other hand, as Mr

Andley seems to argue, that the mistake

discovered much later this would be a

controversial fact which cannot

conveniently be decided in proceedings. In

either view of the matter we are of opinion

the orders for refund made by the High

Court in these seven cases cannot be

sustained."

33. In Nanda Roy (Supra) this court found a writ

petition not maintainable as the period of limitation for

claiming of title and possession to a property involved in

the writ petition had already elapsed.

34. As noted, it is admitted position that the land in

question was acquired in terms of the provision Calcutta

Improvement Act, 1911 which, in turn, provides for

acquisition of land in accordance with the land

Acquisition Act, 1894.

35. Section 69 of the Calcutta Improvement Act reads

as follows: -

69. The Board may, with the previous sanction of the '[State Government], acquire land under the provisions of the Land Acquisition Act, 1894, for carrying out any of the purposes of this Act.

Exp1anarion.-The power of the Board to acquire land under the Land Acquisition Act, I 894, may be exercised not only in respect of lands falling within an improvement scheme already framed but also in respect of lands relating to which the Board may frame improvement schemes in future.

36. The land of the writ petitioners situated at premises

No. 351, Prince Anwar Shah Road measuring 2 Cottah 10

Chittacks and 36 sq. ft. was acquired by Calcutta

Improvement Trust for the scheme of the Trust being

scheme No.114-B. The acquisition proceeding was

started in the year 1971. The final award by the LA

Collector was made on January 09, 1979. The possession

of the acquired land was taken by the LA Collector on

October 11, 1985. Being dissatisfied with the award the

predecessor-in-interest of the petitioners preferred a

reference petition. The reference case being C.I.T. Case

No. 30 of 1989 was disposed of by the Tribunal, by a

judgment and order passed on January 03, 1995.

37. The judgment and order passed in C.I.T. Case No.

30 of 1989 modified the original award. The Tribunal also

held in the said proceeding that the claimant was entitled

for damages under Section 48A of the Land Acquisition

Act @9% per annum for one year from the date of taking

possession i.e. October 11, 1985 and thereafter @ 15%

per annum till the amount is remitted to the tribunal. It

directed the LA Collector to remit the award amount

together with the interest and costs to the tribunal in

terms of Section 82 (2) of the Code of Civil Procedure,

within three months to be calculated from the date of

transmission of the statement of costs.

38. There is nothing on the record to establish as to

when the statement of costs was transmitted to the LA

Collector. However, materials on record suggest that the

amount was not remitted within the stipulated period of

three months.

39. In fact, the materials on record reveal that even the

department or the board and Tribunal were in dark about

the payment of the compensation amount to the

claimants.

40. The writ petitioners, being successors-in-interest of

the original claimant have come up with a case that they

were already reeling under frustration for the delay in

payment of compensation as the land acquisition

proceeding started in 1971 culminated into disposal of

their valuation reference being C.I.T. Case No. 30 of 1989

on January 03, 1995 asking the LA Collector to remit the

amount of compensation together with the damages and

costs within three months. But the said amount was not

so remitted for a considerable length of time. The

claimants were assured by their advocate conducting the

proceeding that proper steps for withdrawal of the

amount would be taken as and when compensation

money is deposited with the tribunal.

41. The Land Acquisition Collector by a writing dated

June 28, 2011 requested the O.S.D. Kolkata

Improvement Trust to remit the decreetal amount at the

earliest revising the compensation amount to ₹. 2, 32,

315/- only, with interest calculated up to October 10,

2010. In response to such communication the O.S.D.

Kolkata Improvement Trust by his writing dated April 05,

2013 informed the First Land Acquisition Collector that

an amount of ₹. 1, 85, 975.68 was released towards

payment of decreetal amount in respect of acquisition of

the premises No. 351, Prince Anwar Shah Road on July

26, 2005.

42. The Kolkata Improvement Trust took about two

years to respond to a letter regarding providing fund to

meet the decreetal expenses payable towards the

appellants. However, it does not speak of anything with

regard to the amount with interest calculated till October

10, 2010. Similar information is forthcoming from the

note of C.A.O, Calcutta Metropolitan Development

Authority (CMDA) dated July 26, 2018.

43. Therefore, from the purport of the correspondence

made between the Calcutta Improvement Trust, Land

Acquisition Collector and the Calcutta Metropolitan

Development Authority, referred to above, it is evident

that though the award money was paid in the year 2005

i.e. after about 10 years of the modified award, the

authorities were not in the know of such deposit.

Consequently, the claimant or the present appellants

were never informed about such deposit to enable them

to withdraw such amount. No notice in this regard was

served upon the awardees specially, when the amount

was not deposited within the stipulated time of three

months as fixed by the tribunal. Such conduct on the

part of the respondent authorities fortifies the case of the

appellants that due to inordinate delay they lost hope of

getting fair compensation for the land acquired of them

and lost touch with the conducting advocate, out of

frustration.

44. Moreover, writing of the LA Collector dated June 28,

2011 discloses that the award amount carried recurring

interest until payment, which was last calculated up to

October 10, 2010. If that be so, since the respondents are

not in a position to demonstrate any lawful endeavor on

their part to pay off the claim amount, the recurring

interest on the award is continuing even today. There

appears nothing on record that the award amount was

ever tendered by the LA Collector to the claimant in

terms of Section 31 of the Land Acquisition Act, 1894. In

that view of the facts, the contention of the respondent

with regard to lapse of the claim for limitation does not

seem to be plausible. Not only that, the writings of the

authorities, referred to above also goes to show that the

authorities, from time to time acknowledged the dues of

the claimants firstly, in the year 2005 when the amount

was credited with the LA Collector, 2010 when the

interest was calculated, 2011 when LA Collector asked

for remittance of the award amount, 2013 when the

writing of LA Collector was responded, 2017 when the

appellants served notice through their lawyer and in the

year 2018. In such view of the matter, the period of

limitation, if there be any, has automatically went on

extending and for this reason, at no stretch of

imagination, the claim of the appellants can be said to be

barred by limitation.

45. There is another aspect in the matter. Section 3 of

the Indian Trust Act, 1882 reads as under: -

3.Interpretation-clause--"trust":--A "trust"

is an obligation annexed to the ownership

of property, and arising out of a

confidence reposed in and accepted by the

owner, or declared and accepted by him,

for the benefit of another, or of another

and the owner:

46. Section 123 of the Calcutta Improvement Act, 1911

provided as follows:

123. The moneys credited to the capilal account shall be held by the Board in trust, and shall be applied to--

(a) ..........................

(b) meeting the cost of acquiring land for carrying out any of the purposes of this Act ;

(c) ............................. ;

(d) ..............................;

(e) ...............................;

(f) ...............................;

(g) ...............................;

(h) ...............................;

47. Thus, it is declared in the statute itself that the

money credited to the capital account of the Calcutta

Improvement Trust was to be held by the Board in trust

and was to be applied for specific purposes, including

payment towards acquisition of lands for carrying out the

purposes of the Act of 1911. Once, such amount was

transmitted to LA Collector in terms of an award or

modified award, as the case may be, such authority can

be held to be holding such amount as trustee or

representative of the trustee, for the benefit of the land

owner whose land was acquired. In such contingency, the

LA Collector or the Calcutta Metropolitan Development

Authority (CMDA) can well be considered as

representative of such trustee.

48. In the given facts, Section 10 of the Indian

Limitation Act, 1963 would surely come in the aid of the

appellants which provides hence: -

10. Suits against trustees and their

representatives.--Notwithstanding

anything contained in the foregoing

provisions of this Act, no suit against a

person in whom property has become

vested in trust for any specific purpose, or

against his legal representatives or

assigns (not being assigns for valuable

consideration), for the purpose of following

in his or their hands such property, or the

proceeds thereof, or for an account of such

property or proceeds, shall be barred by

any length of time.