Calcutta High Court (Appellete Side)
The Board Of Councilor Sainthia ... vs Sundar Devi Anchalia And Others on 15 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
F.M.A. No. 166 of 2018
With
I.A. No. C.A.N. 2 of 2021
With
I.A. No. C.A.N. 3 of 2022
THE BOARD OF COUNCILOR SAINTHIA MUNICIPALITY AND ANOTHER
-VERSUS-
SUNDAR DEVI ANCHALIA AND OTHERS
For the appellants : Mr. Partha Sarathi Bhattacharyya, Sr. Adv.,
Mr. Ashis Kumar Chowdhury, Adv.,
Mr. Avijit Kar, Adv.
For the writ petitioners/ : Mr. Atish Ghosh, Adv.,
Respondent nos.1 & 3. Ms. Antara Dey, Adv.
For the State : Mr. Md. T.M. Siddiqui, Adv.
For the applicant : Mr. Arif Ali, Adv.,
(I.A. No. C.A.N.3 of 2022) Mr. Md. Faizan Yakub, Adv.
Hearing concluded on : 09.08.2023
Judgment on : 15.12.2023
2
Kausik Chanda, J.:-
This appeal, at the instance of the Sainthia Municipality, Birbhum, is
directed against a judgment and order dated July 17, 2017, rendered by a
learned Single Judge of this Court.
2. The writ petitioners claimed before the learned Single Judge that 20
decimals of land appertaining to Plot No.5062, J.L. No.95 of Mouza-Sainthia
under Sainthia Police Station, Birbhum was requisitioned by the State by
initiating L.A. Case No.2 of 1986-87 under the provisions of West Bengal Land
(Requisition and Acquisition) Act, 1948 (in short, the Act of 1948). Following
the said Act of 1948, the possession of the land was taken over and transferred
to Sainthia Municipality. The writ petitioners argued that the proceeding
initiated under the provisions of Act of 1948 was not converted into a
proceeding under the Land Acquisition Act, 1894 (in short, Act of 1894) and,
therefore, the requisition proceeding had lapsed. The relevant land was neither
released from requisition nor any rent compensation was paid.
3. The learned Single Judge, by the order impugned, held that the relevant
land of the writ petitioners was requisitioned by the State under the Act of
1948 and the requisition proceeding lapsed without making payment of rent
compensation to the petitioners. Admittedly, the relevant land is still in the
possession of the Sainthia Municipality. The learned Judge observed that,
having already taken possession, and having handed it over to the
Municipality, it is incumbent upon the State to initiate fresh land acquisition
proceedings under the provision of the Right to Fair Compensation and
3
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
(in short, Act of 2013), for payment of compensation to the petitioners.
4. The writ petition was disposed of with a direction upon the State to
commence the land acquisition proceedings under the Act of 2013 and to
compensate them under the said provision of law within a period of six months
from the date of communication of the order. The State was, further, directed
to make payment of rent compensation to the petitioners in accordance with
law.
5. The appellant/Municipality contends that on October 25, 1989, the
Collector, Birbhum issued a Form requisitioning the relevant land under
Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948,
and the Chairman of the Municipality deposited a sum of Rs.80,555/- with the
Treasury. Subsequently, following a letter from the Special Land Acquisition
Officer, Birbhum dated November 9, 1989, possession was taken by the
Municipality and a certificate of possession was issued on November 16, 1989,
for construction of a children's park. The Municipality argues that the writ
petition, filed after a lapse of 20 years, is not maintainable, especially given the
absence of any explanation for the delay.
6. It has been argued by the Municipality that Section 24 (2) of the Act of
2013 does not give rise to any new cause of action to question the legality of a
concluded proceeding of land acquisition. Section 24 applies to a proceeding
pending on the date of enforcement of the Act of 2013 i.e. January 1, 2014. It
4
does not receive stale and time-barred claims and does not re-open concluded
proceedings, nor allows land owners to question the legality of the mode of
taking possession to re-open proceedings or mode of deposition of
compensation in the Treasury. It has been submitted that the learned Single
Judge has failed to appreciate that the appellant/Municipality had deposited
the admissible amount as directed by the Land Acquisition Department before
taking over possession of the land. It has been submitted that the provisions of
Act of 1948 came into force on March 11, 1948 and remained in force till
March 31, 1997. All actions taken under the Act of 1948 stood concluded till
31st March 1997. There is no indication in Section 24 of the Act of 2013 to deal
with the cases initiated under the provisions of the Act of 1948. The provisions
of Section 24 of the Act of 2013 are only applicable in the cases where the land
acquisition proceeding was initiated under the Act of 1894.
7. The Municipality admits that it constructed a community hall on the
land in the year 2002 and it is still in the possession of the said land.
8. In support of the appeal, it has been submitted by the State that the writ
petitioners filed W.P. No.3733(W) of 2006 seeking a direction upon the
Municipality to quit and vacate the relevant land and not to carry out any
construction activities. The said writ petition was dismissed for default.
Thereafter, this present writ petition was filed seeking quashing of the
requisition under the Act of 1948. Therefore, the prayer of the writ petitioners
is barred by the principle of constructive res judicata.
5
9. Furthermore, the State contended that the writ petitioners themselves
having conceded the absence of a valid acquisition, no compensation under
Section 24 of the Act of 2013 can be paid. The State suggests that, at best, a
civil suit is maintainable for removal of encroachment.
10. The State argued that no pleading was made in the writ petition to
initiate proceedings in terms of Act of 2013 and, therefore, the learned Judge
ought not to have travelled beyond the pleadings. Possession of the land was
handed over to the Municipality much before filing of the writ petition. Since
possession of the land has been taken, though no compensation has been paid,
it cannot be said that the land acquisition proceedings have lapsed. The State
maintained that the writ petitioners cannot ask for return of the land; at most
they, they can claim compensation under the Act of 1894 or under Act of 1948.
11. Before the merits of the case is delved into, it is important to take note of
the report filed before the learned Single Judge by the State. The relevant part
of the said report is quoted below:
"3. I state that after receiving a proposal from
the Dy. Secretary, Local Government and Urban
Development vide No. 854/1/C-60 MIL-19/87
dated 05.08.1988 and No.420/C-6/MIL. 19/87
dated 03.05.1989 and the Chairman, Sainthia
Municipality vide his No. 284/SM/88 dated
17.02.1988 for construction of Children Park in
Plot No. 3049/4176 (Sabek) i.e. 5062 (Hal) of
L.R. Khatian No. 6827 of Mouza - Sainthia, J.L.
No. 95 under P.S. Sainthia, District - Birbhum,
an L.A. Proceedings vide L. A. Case No. 2 of
1996-97 was started under the West Bengal
Land (Requisition & Acquisition) Act - 1948 (Act-
II of 1948) for Acquisition of an area 0.20 acre of
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land for the said purpose and requisition order
for the said land was duly passed and
possession of the said land was taken over and
delivered to the Requiring Body on 16.11.1989
and in consequence the Requiring Body has
utilized the land in question accordingly.
4. Subsequently, the Act-II of 1948 i.e. West
Bengal Land (Requisition & Acquisition) Act,
1948 was repealed and the said L. A. Proceeding
was required to be converted under provision of
Land Acquisition Act, 1894 (Act-I of 1894).
However, the Right to Fair Compensation
(Transparency in Land Acquisition,
Rehabilitation & Resettlement) Act, 2013, came
into force and the proceeding under Act 1 of
1894 have also been repealed and as such the
proceeding under Act 1 of 1894 could not be
completed.
...
7. The land in question has been utilised by the
Requiring Body and the Requiring Body is in
possession of the same. The Requiring Body has
been requested vide Memo No. 396/LA dated
28.04.2017 to pay Rent Compensation to the
petitioners. I crave leave to produce a copy of the
said letter at the time of hearing, if necessary."
12. It is, therefore, clear that requisition order in terms of Section 3 (1) of Act
of 1948 had been published on October 25, 1989 and possession of the land
was taken on November 16, 1989. No notice, however, in the present case
under Section 4(1) of the Act of 1948 was issued. Though the Municipality
claims that requisition compensation and ad-hoc advance on account of
payment towards compensation was deposited with the Land Acquisition
Collector, nothing has been brought on record to demonstrate that the
petitioners were ever paid any amount towards rent compensation or
otherwise. No notice under Section 9(3A) of the Act of 1894 as amended by the
Land Acquisition (West Bengal Amendment) Act, 1997, was issued and no
award was published. There cannot be any doubt that said proceeding initiated
under the Act of 1948 was never converted into a proceeding under the Act of
1894.
13. In the above facts, Section 24 of the Act of 2013 has no manner of
application in this case. The said provision applies only to a proceeding
initiated under the Act of 1894 and no other proceedings.
14. Although Section 24 of the 2013 Act may not be applicable to the facts of
this case, the fact remains that the Municipality has constructed a community
hall on the land in question and is in possession of the said land. The order of
requisition stands lapsed by reason of the natural death of the Act of 1948
under which the requisition order was issued. Strictly speaking, the
Municipality is in illegal possession of the land in question. No rent
compensation has been paid to the writ petitioners. No proceeding for
acquisition of the land has been initiated by the State. Right to property,
although may not be a Fundamental Right since 1978, it is still a valuable
Constitutional Right of a citizen under Article 300A of the Constitution. It has
even been now recognised as a Human Right. The State or the requiring
authority cannot retain possession of a land belonging to a citizen without
acquiring it following due process of law. Presently, the only law of the land
governing acquisition of land is the Act of 2013. The State must initiate
proceedings under the Act of 2013 to determine the compensation payable to
the writ petitioners. Rent compensation is also payable to the writ petitioners
as directed by the learned Single Judge. The State and/or the Municipality
having utilised the land of the writ petitioners, they are bound to compensate
the writ petitioners for the value of the land. Otherwise, it will amount to
expropriation of a citizen's property which is not permissible under the law of
the land.
15. In the aforesaid facts, I do not see any reason to interfere with the order
impugned whereby the learned Single Judge directed to initiate fresh
proceedings under the Act of 2013 and to pay compensation under the said Act
with a further direction to make rent compensation to the petitioner in
accordance with law.
16. It must be acknowledged that there has been a substantial delay in
approaching this Court by the petitioners. I am, however, of the view that right
to property is a valuable constitution right flowing from Article 300A of the
Constitution of India and delay or any other technical issues as raised by the
appellant/Municipality and the State in this appeal should not thwart the
claim for compensation.
17. In the case reported at (2020) 2 SCC 569 (Vidya Devi v. State of
Himachal Pradesh) the Supreme Court directed payment of compensation in
favour of the appellant therein, who filed a writ petition before the Himachal
Pradesh High Court in the year 2010 for payment of compensation for the land,
possession of which was taken by the State in the year 1967. It was held, inter
alia, as follows:
"12.8. The contention of the State that the
appellant or her predecessors had "orally"
consented to the acquisition is completely
baseless. We find complete lack of authority and
legal sanction in compulsorily divesting the
appellant of her property by the State.
...
12.12. 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.
12.13. 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. [P.S. Sadasivaswamy v.
State of T.N., (1975) 1 SCC 152 : 1975 SCC
(L&S) 22]
...
13. In the present case, the appellant being an
illiterate person, who is a widow coming from a
rural area has been deprived of her private
property by the State without resorting to the
procedure prescribed by law. The appellant has
been divested of her right to property without
being paid any compensation whatsoever for
over half a century. The cause of action in the
present case is a continuing one, since the
appellant was compulsorily expropriated of her
property in 1967 without legal sanction or
following due process of law. The present case is
one where the demand for justice is so
compelling since the State has admitted that the
land was taken over without initiating
acquisition proceedings, or any procedure
known to law. We exercise our extraordinary
jurisdiction under Articles 136 11 and 142 of the
Constitution, and direct the State to pay
compensation to the appellant."
18. The same view has been reiterated by the Supreme Court in a recent
judgment reported at (2022) 7 SCC 508 (Sukh Dutt Ratra v. State of
Himachal Pradesh).
19. In that case the Supreme Court directed to pay compensation to the
appellants who filed the writ petition after 38 years against the State. In that
case, the Supreme Court was also approached after about six years after the
order passed by the Himachal Pradesh High Court in the year 2013. Negating
the contention advanced on behalf of the State of Himachal Pradesh as to the
delay and laches the Supreme Court held as follows:
"16. Given the important protection extended to
an individual vis-a-vis their private property
(embodied earlier in Article 31, and now as a
constitutional right in Article 300-A), and the
high threshold the State must meet while
acquiring land, the question remains - can the
State, merely on the ground of delay and laches,
evade its legal responsibility towards those from
whom private property has been expropriated?
In these facts and circumstances, we find this
conclusion to be unacceptable, and warranting
intervention on the grounds of equity and
fairness.
17. When seen holistically, it is apparent that
the State's actions, or lack thereof, have in fact
compounded the injustice meted out to the
appellants and compelled them to approach this
court, albeit belatedly. The initiation of
acquisition proceedings initially in the 1990s
occurred only at the behest of the High Court.
Even after such judicial intervention, the State
continued to only extend the benefit of the
court's directions to those who specifically
approached the courts. The State's lackadaisical
conduct is discernible from this action of
initiating acquisition proceedings selectively,
only in respect to the lands of 12 those writ
petitioners who had approached the court in
earlier proceedings, and not other land owners,
pursuant to the orders dated 23.04.2007 (in
CWP No. 1192/2004) and 20.12.2013 (in CWP
No. 1356/2010) respectively. In this manner, at
every stage, the State sought to shirk its
responsibility of acquiring land required for
public use in the manner prescribed by law.
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-land owners.
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 State
Road Transport Corporation v. Balwant Regular
Motor Service, held:
"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."
20. Accordingly, F.M.A. No.166 of 2018 is dismissed and the applications
being I.A. No. C.A.N. 2 of 2021 and I.A. No. C.A.N. 3 of 2022 are disposed of.
21. Urgent certified website copy of this judgment, if applied for, be supplied
to the parties subject to compliance with all the requisite formalities.
I agree.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
Later
After the judgment is delivered in open Court, Mr. Partha Sarathi
Bhattacharyya, learned senior advocate, representing the Municipality prays
for stay of operation of the judgment and order. Such prayer is considered and
rejected.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
