Calcutta High Court (Appellete Side)
Hasibur Rahaman Sardar vs The State Of West Bengal & Ors on 1 December, 2023
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
W.P.A. 28121 of 2022
With
CAN No. 1 of 2023
Hasibur Rahaman Sardar
Vs.
The State of West Bengal & Ors.
For the Petitioner: Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Amit Kumar Pan, Adv,
Syed Julfikar Ali, Adv,
Mr. Shubrojyoti Mookherjee, Adv.
For the Respondent No. 11: Mr. Saptangsu Basu, Adv,
Mr. Arindam Guha, Adv,
Mr. Jayanta Sengupta, Adv,
Mrs. Arpita Dey, Adv.
For the KMDA: Mr. Kishore Dutta, Adv,
Mr. Satyajit Talukder, Adv,
Mrs. Piu Karmakar, Adv.
For the State: Mr. Susovan Sengupta, Adv.
For the Respondent No. 13-15: Mrs. Bishalaxmi Ghosh, Adv.
Hearing Concluded on: 13.09.2023
Date: 01.12.2023
SUVRA GHOSH, J. :-
1. The petitioner seeks issuance of a formal order by the Collector, Howrah of
derequisition of land measuring about 33.5 decimals in R.S. Dag No. 845 4
decimals in R.S. Dag No. 846 and 9 decimals in R.S. Dag No. 847 in R.S.
Khatian No. 178, mouza - Pakuria, J.L. No. 54, Salap-I Gram Panchayat
Police Station - Domjur, District - Howrah in favour of the petitioner.
2. The contention of the petitioner is as hereunder:-
The proforma respondents acquired title and possession in respect of
the plots in question by virtue of purchase vide registered deeds
executed in 1988. A vast area of land including the plots in question
was requisitioned for West Howrah Area Development Project under
the West Bengal Land (Requisition and Acquisition) Act, 1948 vide
L.A. Case No. 27/1/AC/11 CMDA of 1984-85 and notification was
published in the daily newspaper The Statesman on 6th August, 1998
by the Calcutta Metropolitan Development Authority presently known
as the Kolkata Metropolitan Development Authority (hereinafter
referred to as the KMDA) notifying preparation of the Outline
Development Plan for the western part of Howrah prepared by the
KMDA as per provisions of section 36(1) of the West Bengal Town and
Country (Planning & Development) Act, 1979. The proforma
respondents moved an application under Article 226 of the
Constitution being C.O. No. 13775 (W) of 1994 inter-alia challenging
the order of requisition. By an order passed on 29th April, 1997, this
Court allowed the writ petition with an observation since there was no
material either to show that there was an order for requisition of the
land in question or the same was served upon the writ petitioners,
possession, if any, taken by the respondent authorities without due
process of law should stand set aside. The Court further recorded that
the aforesaid order would not prevent the respondent authorities from
proceeding in accordance with provisions of law for the purpose of
acquisition of the land in question.
3. By virtue of amendment of the Act of 1948, operation of the Act was
extended till 31st March, 1997 and in view of section 3 of the Amendment
Act of 1994, power under section 3 of the Act of 1948 was omitted with
effect from 1st April, 1994. No further step was taken by the State
respondents for initiation of fresh proceedings under the Land Acquisition
Act, 1894 pursuant to the order of the Court.
4. In a writ petition being W.P. No. 3071 of 1988 filled by one Ram Chandra
Jaiswal whose land was also requisitioned in connection with the same
proceedings, a coordinate Bench of this Court, by an order passed on 15th
February, 2001 directed the State respondents to release the land in
question, the said order not being carried in appeal by the State. The
proforma respondents filed an application before the KMDA as well as the
State authorities to issue a formal order of release/de-requisition in respect
of the plots in question pursuant to the order of the Court. The Deputy
Secretary (L.A) CMDA, vide memo dated 2nd March, 2001 addressed to the
Special Land Acquisition Officer, Howrah Improvement Trust directed the
latter to de-requisition/relinquish all the land of the land owners
requisitioned for the purpose of West Howrah Area Development Projects
and prepared a list of the said land owners and forwarded the same to the
Special Land Acquisition Officer, Howrah Improvement Trust for doing the
needful.
5. The petitioner purchased the plots in question from the proforma
respondents vide 3 registered deeds of sale executed on 1st April, 2022 and
upon taking possession of the said plots, requested the Principal Secretary,
Land & Land Reforms Department by a letter issued on 31st May, 2022 to
issue formal order of de-requisition of the land in his favour. In a follow-up
letter issued by the Additional District Magistrate and District Land & Land
Reforms Officer to the CEO, KMDA on 30th August, 2022, the State
authorities admitted that the land in question had to be released in favour of
the writ petitioner, thereby acting upon the order of the Court.
6. Upon an attempt of some officers/agents of the Kolkata West International
City Private Limited (for short 11th respondent) in August, 2022 to encroach
upon the land for the purpose of raising boundary wall, the petitioner filed
an application under section 144(2) of the Code of Criminal Procedure and a
report submitted by the Inspector in Charge, Domjur Police Station in the
said case upon causing local enquiry reveals that the KMDA has acquired
the land in question and has granted 99 years lease of the land to the
Kolkata West International City Private Limited.
7. It is submitted on behalf of the petitioner that in view of setting aside of the
requisition by this Court, the State respondents could not have made over
the land in favour of the KMDA and the lease executed by the KMDA in
favour of the 11th respondent is void ab initio. The 11th respondent has in
turn granted sub-lease of the land in favour of the Kona Logistics Park
Private Limited, the 12th respondent herein, which is also illegal.
8. Learned counsel has further submitted that by a letter issued on 9th
December, 2022, the Additional Secretary, Land & Land Reforms and
Refugee Relief and Rehabilitation Department, Government of West Bengal
informed the petitioner that the land was subsequently acquired and award
declared in 2004. The award was deposited in the District Court in 2006 as
the owner of the land could not be traced out and as such, acquisition was
complete. The letter also recorded that the L.A. Collector was not in
possession to return the land to the petitioner and necessary action should
be taken for payment of compensation to the present owner who stepped
into the shoes of the erstwhile owners/awardees. Also, if the land was not
yet utilised for the required purpose and was originally an agricultural land
of rural area, requiring department could consider the plots as surplus land
and proceed to restore the same to the original owner in terms of the L.A.
Manual.
9. The State attempted to salvage the acquisition proceedings by initiating
further proceedings under the unamended provision of the Land Acquisition
Act, 1894 but such proceeding was also quashed by this Court by a
judgment passed on 25th September, 2008 in W.P. No. 654 of 2004 (M/s.
Rungta Agencies Limited and Others v/s State of West Bengal and Others
reported in A.P.O. No. 66 of 2009). The said judgment was affirmed by the
Hon'ble Division Bench of this Court and Special Leave Petition preferred
against the judgment of the Hon'ble Division Bench was dismissed. It was
held by this Court that un-amended provisions of section 9(3) and 9(4) of the
Act of 1894 could not be invoked without prior compliance with section 4
and 6 of the Act. In the matter of Rungta Agencies Private Limited, the State
authorities admitted in the affidavit in opposition filed by them that L.A.
Case No. 27/1/ACT-II/CMDA of 1984-85 relates to mouza Pakuria where
the plots in question in the present writ petition are located. The order
passed in C.O. No. 13775 (W) of 1994 also pertains to the said L.A. Case of
1984-85. The parent notification has ceased to exist in view of issuance of
subsequent notices under unamended sections 9(3) and 9(4) of the 1894
Act. The said attempt was also quashed by this Court by the order passed
on 25th September, 2008.
10. Since the petitioner purchased freehold land after quashing of both the
acquisition proceedings by this Court by two separate orders, he cannot be
termed as a post-vesting purchaser and the question of challenging the
acquisition proceedings does not arise. The respondents have tried to
impress upon the Court that the plots in question pertain to mouza-Salap
and not under mouza Pakuria as appears from the letter dated 2nd March,
2001 issued by the Deputy Secretary, Land Acquisition, CMDA. But the
other part of the letter clearly states that the plots in question are in
mouza Pakuria.
11. Learned counsel has relied upon the authorities in Collector of Kamrup and
Others v/s. Kamakhya Ram Barooah and Others reported in AIR 1965 SC
1301 and The State of West Bengal v/s. Sabita Mondal with State of West
Bengal v/s. Sabitri Devi (Since deceased) with State of West Bengal v/s. Nur
Islam with Samir Kumar Das v/s. State of West Bengal reported in 2011 (3)
CHN (CAL) 555 in support of his contention.
12. Speaking for the State respondents, learned counsel has submitted that
notices under section 3 and 4 (1a) of the Act of 1948 was issued by the
respondents upon all concerned and the plots in question were vested in the
State much prior to purchase of the same by the petitioner, the petitioner
therefore being a post-vesting transferee having no right to challenge the
acquisition proceedings. The plots were acquired vide L.A. Case No.
29/1(ACT-II) of 86-87 and are not related to L.A. Case No. 27/1/SE/II
CMDA of 1984-85. Notice under sections 9(3) and 9(4) of the Act of 1894
was issued by the Collector and award declared under section 11 of the Act
in favour of the respective awardees. The award money is lying with the P.L
account of the Collector, Howrah. The vesting proceeding having been
completed accordingly, the petitioner can only claim compensation upon
substantiating his title in respect of the plots.
13. The State of West Bengal made over the plots in favour of the KMDA vide
deed of conveyance dated 3rd November, 2004 which in turn, leased out
some of the plots to the Kolkata West International City in 2012 for carrying
out development work. Upon liberty granted by this Court while disposing of
the writ application being C.O. No. 13775 (W) of 1994 to proceed in
accordance with law for fresh acquisition of the plots in question, the State
respondents proceeded with such acquisition afresh by invoking provisions
of Act-II of 1894 and the process was complete upon declaration of award.
Possession of the land was handed over to the KMDA and the erstwhile
owners/proforma respondents were mere trespassers therein after the land
was vested in the State. As such, the question of de-requisition of the land
does not arise. The order passed in C.O. 13775 (W) of 1994 is contrary to
records and this Court, according to learned counsel, has inherent power to
review the same. Also, the petitioners were not impleaded as parties in the
said matter. In Rungta Agencies Private Limited, the plot numbers are
different from that of the present case.
14. Learned counsel representing the KMDA has submitted at the very outset
that inordinate delay in filing the writ petition has not been explained by the
petitioner. Award was declared on 30th September, 2004 and the writ
petition was filed on 16th December, 2022. On merits, learned counsel has
submitted that the earlier order pertains to a different L.A. case and has no
bearing with the plots involved in the L.A. case of 1986-87. The petitioner is
a post-vesting transferee and has no right to challenge the legality or validity
of the acquisition proceeding since the land was vested in the State much
prior to purchase of the same by the petitioner. The KMDA has reiterated
the submission made on behalf of the State respondents and has submitted
that upon declaration of award on 30th September, 2004 in respect of 128
plots, 129 out of 311 awardees received compensation and the remaining
compensation amount was sent to the L.A. Tribunal, Howrah.
15. The alleged vendors of the petitioner filed a writ petition earlier being W.P.
No. 20128 (W) of 2003 before this Court for release of the plots involved in
the present writ petition from requisition made in connection with L.A. Case
No. 27 but failed to obtain any order in their favour. The said writ petition
was ultimately dismissed for default on 26th April, 2016 and has not been
restored as yet.
16. Learned counsel has placed reliance on the authorities in Municipal
Corporation of Greater Bombay v/s. Industrial Development Investment Co.
Pvt. Ltd. and Others reported in (1996) 11 Supreme Court Cases 501, State
of Orissa v/s. Dhobei Sethi and Another reported in (1995) 5 Supreme Court
Cases 583, Star Wire (India) Limited v/s. State of Haryana and Others
reported in (1996) 11 Supreme Court Cases 698, Delhi Development
authority v/s. Damini Wadhwa and Others reported in (2022) 10 Supreme
Court Cases 519, and Shiv Kumar and Another v/s. Union of India and
Others reported in (2019) 10 Supreme Court Cases 229 in support of his
contention.
17. Supporting the contention of the other respondents, the 11th respondent has
submitted that the writ petition demonstrates that the petitioner claims de-
requisition of land in mouza Salap whereas land in mouza Pakuria was
transferred to this respondent by the KMDA. The proforma respondents
were the purported owners/interested parties in respect of plot nos. 845,
846 and 847 in Mouza Salap and not in respect of the subject plots in
mouza Pakuria. The plots in question were acquired by virtue of L.A. Case
No. 29 and notification therefor was published in the Calcutta Gazette
bearing no. 9252/L.A. (II)/IG-29/89 dated 4th February, 1989. De-
requisition process, if at all, was initiated by the Government in respect of
the plots in mouza Salap and not mouza Pakuria. The land has been utilised
by this respondent who is not in a position to return the same. At best, fresh
acquisition proceedings may be initiated in respect of the said plots.
18. I have considered the rival contention of the parties, material on record and
the relevant laws.
19. It transpires on perusal of the material on record that the earlier writ
petition being C.O. No. 13775 (W) of 1994 was filed by the predecessor in
interest of the petitioner, being the proforma respondents in the present writ
petition challenging the legality of the notice of requisition in L.A. Case No.
27/1/SE/II CMDA of 1984-85. Several plots of land in mouza Pakuria
including plot nos. 845, 846 and 847 involved in the present writ petition
were subject matter of the earlier writ petition. By an order passed on 29th
April, 1997 in the said writ petition, this Court allowed the writ petition and
set aside the possession, if any, taken by the respondent authorities therein
without due process of law. The requisition was therefore set aside/quashed
by the learned Court upon granting liberty to the respondent authorities to
proceed in accordance with law for acquiring the land in question afresh.
The said order remains unchallenged and holds the field till date.
20. In a letter issued to the KMDA on 30th August, 2022, the Additional District
Magistrate and District Land & Land Reforms Officer, Howrah requested for
information regarding execution of the lease deed by the KMDA in favour of
Kolkata West International City Private Limited, despite communication
made by the CMDA regarding de-requisition of the subject plots. The letter
refers to the order dated 29th April, 1997 and states that despite the
acquisition being set aside by the Court, the KMDA leased out the subject
plots to the Kolkata West International City Private Limited. A letter issued
by the Deputy Secretary (L.A.), CMDA, Special Land Acquisition Officer,
Howrah Improvement Trust, Howrah for release of the plots in question
along with other plots records that the owners of plot nos. 845, 846 and 847
undertook not to claim any compensation or damages upon de-
requisition/relinquishment of the plots in question. Though the letter states
that the plot nos. 845 to 847 are in mouza Salap, the subject of the letter
clearly depicts that release of land from West Howrah Area Development
Project is in respect of mouzas Khalia, Tentulkuli and Pakuria. Therefore it
can safely be held that the recording of the word Salap is a typographical
mistake and the plots in question are situated in mouza Pakuria, moreso,
since all other documents pertaining to the acquisition in question
unanimously reveal that the plots in question are situated in mouza
Pakuria. It is also not improbable that since mouza Pakuria is situated
under Salap-I Gram Panchayat, the mouza has been mistakenly recorded as
Salap instead of Pakuria.
21. It is relevant to refer to another letter issued by the Additional Secretary,
Land & Land Reforms and Refugee Relief and Rehabilitation Department to
the Additional District Magistrate (L.A.) on 9th December, 2022. The letter
speaks in no uncertain terms that upon liberty granted to the State by this
Court to initiate acquisition proceedings afresh vide order dated 29th April,
1997, the L.A. Collector proceeded with the acquisition and declared award
in 2004. Surprisingly, the letters says that since in the present matter, no
Court has held that the completed acquisition process in respect of the plot
nos. 845, 846 and 847 in Pakuria Mouza was void and the land was to be
returned, the L.A. Collector was not in position to return the land to the
petitioner. Besides suggesting payment of compensation to the petitioner, an
alternative suggestion has also been made in the said letter to the effect that
if the land was not yet utilised by the requiring body and was originally an
agricultural land of the rural area, the appropriate department may consider
relinquishment of the plots in favour of the original owner.
22. One thing is crystal clear from all these inter departmental communications
made by the State authorities. The order passed by this Court in C.O. No.
13775 (W) of 1994 on 29th April, 1997 was not only accepted by the State
authorities, but also acted upon by initiating acquisition proceeding afresh.
The legal consequence of the said proceedings shall be dealt with later on.
Therefore the State respondents are debarred from challenging the legality
and validity of the order dated 29th April, 1997 in the present writ petition.
23. It is trite law that the effect of the Land Acquisition (West Bengal
Amendment) Act, 1997 which came into operation on the midnight between
March 31, 1997 and April 1, 1997 prevented all those notices under sub-
section (1a) of section 4 issued after April 1, 1994 from being lapsed by
giving scope of revival by way of a notice under sub-section (3B) of section 9
of the said Act if an award had not been passed within three years from the
date of publication of such notice and which would otherwise lapse if the
said Act of 1997 would not come into operation at the midnight of March 31,
1997.
24. In respect of those notices under sub-section (1a) of section 4 which were
issued prior to March 31, 1992 and in respect of which no award had been
passed by March 31, 1995, those notices had already lapsed and by the
Amendment Act, 1997, no provision has been made for revival of the lapsed
notices which stood lapsed on March 31, 1997. Only the notices under
section (1a) of section 4 which would have lapsed on the midnight of March
31, 1997 or on subsequent dates have been saved. [2011 (3) CHN (CAL)
555].
25. In the authority in Collector of Kamrup and Others (supra), the Hon'ble
Supreme Court has dealt with acquisition of land under section 4 of the
Assam (Requisition and Acquisition) Act, 1948 which is akin to the West
Bengal Land (Requisition and Acquisition) Act, 1948. The Hon'ble Court has
observed that the power to acquire land under section 4 may be exercised
where the land has been requisitioned under section 3 and not otherwise.
26. In the case in hand, the requisition under section 3 of the Act of 1948 was
set aside by this Court by the order dated 29th April, 1997. The State
respondents initiated fresh proceedings for acquisition in terms of liberty
granted by the said order by invoking provisions of the Act of 1894 and
award was declared in 2004. The notification bearing no. 9252-LA(II)/IG-
29/89 dated 4th February, 1989 under section 4 (1a) of the Act of 1948 was
published by the State in the Calcutta Gazette. In the earlier writ petition
being W.P. No. 654 of 2004, M/s. Rungta Agencies challenged the
notification dated 4th February, 1989 and sought release of the land situated
in mouza Pakuria and Khalia on the ground that the acquisition proceeding
was not completed within the stipulated time and no notice under section 9
(3B) of the Land Acquisition Act, 1894 was issued in respect of the said
land. As such, the land was not acquired either under the provisions of the
Act of 1948, or the Act of 1894. The said notification also covers the land
involved in the present writ petition. The said writ petition was allowed by
an order passed on 25th September, 2008 declaring that the proceeding was
not continued under the Land Acquisition Act, 1894 and the special notice
issued in connection with the same was under the provisions of section 9 (3)
and (4) of the Act of 1894 and not under section 9 (3B) of the Act. The Court
held that the land was not acquired in accordance with law and directed
release of the land in favour of the petitioners therein within three months
from the date of communication of the order. Therefore the notification no.
9252 in connection with L.A. Case No. 29 was set aside/quashed by the
Court by its order dated 25th September, 2008. The said order was carried in
appeal before the Hon'ble Division Bench which, by an order passed in APO
No. 66 of 2009 and APO No. 67 of 2009 on 21st February, 2013 affirmed the
same with an observation that notice under section 9 (3B) was never given.
The State was granted liberty to take necessary steps for acquisition of the
land in accordance with law within the period of five weeks from the date of
order. The KMDA preferred Special Leave to Appeal against the said order
before the Hon'ble Supreme Court which was not entertained. The Hon'ble
Supreme Court also granted similar liberty to the authority as granted by
the Hon'ble Division Bench.
27. It has been admitted by the respondents that upon quashing of the earlier
L.A. Case being no. 27 by this Court, a fresh L.A. proceeding being no. 29
was initiated by notification no. 9252. The respondents have strenuously
argued that the plots involved in the present writ petition have been
acquired vide L.A. Case no. 29 and has no bearing with L.A. Case no. 27.
Record reveals that the plots in question were included in L.A. Case No. 27
which was set aside by this Court by the order dated 29th April, 1997. The
said plots of land were also included in the notification no. 9252 in respect
of L.A. Case No. 29. Since the said notification was quashed/set aside by
this Court by the order dated 25th September, 2008, any subsequent step
taken by the State respondents in connection with the said L.A. proceedings
including grant of lease in respect of the land in favour of the KMDA,
subsequent leases in favour of the 11 & 12th respondents respectively and
making over possession in their favour are void ab-initio.
28. Therefore it is crystal clear that upon quashing of the notification no. 9252,
the plots in question became freehold land. Though liberty was given to the
State respondents to acquire the land in accordance with law, no fresh
acquisition proceedings appears to have been initiated by the State
thereafter.
29. It is contended on behalf of the respondents that the inordinate delay in
filing the writ petition has not been explained by the petitioner. Also, the
petitioner being the post-vesting transferee has no right to challenge the
acquisition proceedings.
30. It is to be borne in mind that the petitioner has not challenged the
acquisition proceedings in the present case and has sought issuance of a
formal order of de-requisition in terms of the earlier orders passed by this
Court. The petitioner purchased freehold property vide registered deeds
executed on 1st April, 2022, i.e., after both the acquisition proceedings were
set aside by this Court. The plots in question not being vested when the
petitioner purchased the same, he cannot be termed as a post-vesting
transferee with regard to the said plots. Therefore the ratio decidendi laid
down in the authorities in Delhi Development Authority (supra) and Shiv
Kumar and Another (supra) can be distinguished from the fact situation of
the present case. Immediately upon purchase of the plots in question, the
petitioner approached the Principal Secretary, Land and Land Reforms
Department, Government of West Bengal (L.A. Branch) vide letter dated 31st,
May, 2022, requesting issuance of formal order of de-requisition pursuant to
the decision taken by the Government of West Bengal vide memo no.
116/LATS-14(PT), 2001 issued by the Deputy Secretary, (L.A.), CMDA to the
Special Land Acquisition Officer, Howrah Improvement Trust, Howrah.
Possession of the petitioner was allegedly disturbed by the officers and
agents of the 11th respondent sometime in August, 2022 for which the
petitioner filed an application under section 144(2) of the Code of Criminal
Procedure which was registered as M.P. Case No. 771 of 2022. The writ
petition has been filed on 16th December, 2022. Therefore no delay or laches
on the part of the petitioner in filing the writ petition has been made out
since the petitioner acquired right, title and interest in respect of the plots in
question being free-hold property only in April, 2022 and not prior thereto.
The authorities relied upon by the KMDA in Starwire India Pvt. Limited
(supra), State of Odisha (supra) and Municipal Corporation of Greater
Bombay (supra) have no manner of application in the present case.
31. Since the petitioner has prayed for issuance of a formal order of
derequisition in respect of the plots in question by the 7th respondent in
view of the fact that both the acquisition proceedings in respect of the plots
in question were set aside by this Court earlier and the petitioner has
acquired right, title, interest and possession in respect of the same by virtue
of purchase, the writ petition succeeds. Land of other owners similarly
circumstanced and involved in the same acquisition proceedings has been
de-requisitioned/released by the State respondents in their favour and the
petitioner is entitled to the same relief.
32. In the light of the observation made hereinabove, the writ petition is allowed.
33. The connected application being C.A.N. 1 of 2023 is also disposed of.
34. The Collector under Act-I of 1894, Howrah, being the 7th respondent herein,
is directed to issue formal order of de-requisition in respect of the plots in
question in favour of the petitioner within two months from the date of
communication of this judgment.
35. However, the State respondents are at liberty to initiate fresh acquisition
proceedings in respect of the plots within the aforementioned time frame, in
accordance with law.
36. There shall however be no order as to costs.
37. Urgent certified website copies of this judgment, if applied for, be supplied to
the parties expeditiously on compliance with the usual formalities
(Suvra Ghosh, J)
