M/S Singhania Commercial ... vs State Of West Bengal & Ors
2023 Latest Caselaw 991 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                  Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 9042 of 2008
            M/S Singhania Commercial Corporation & Ors.
                                    Versus
                        State of West Bengal & Ors.



For the petitioner            :       Mr. Buddhadev Ghoshal
                                      Mr. Supratim Dhar
                                      Mr. U.S. Menon
                                      Ms. Madhupriya
                                      Mr. Abhirup Chakraborty
                                                               .....Advocates
For the WBSEDCL               :       Mr. Debayan Bera
                                      Mr. Sumit Kr. Panja
                                      Mr. Sumit Ray
                                      Mr. Sujit Sankar Koley
                                                               .....Advocates
For the State                 :       Mr. Soumitra Bandopadhyay
                                      Mr. Prasanta Behari Mahata
                                                               .....Advocates


Heard lastly on               :       01.12.2022

Judgment on                   :       07.02.2023
                                        2


Jay Sengupta, J.:

1.    This is an application under Article 226 of the Constitution of India,

inter alia, challenging the impugned notification dated 11.04.2008 issued on

17.04.2008 under Section 4 of the Land Acquisition Act 1894 in respect of

the land situated at Sevoke Road, Mouza Debgram, District-Jalpaiguri.

2.    Learned counsel appearing on behalf of the petitioners submitted as

follows. In May 1977 the owners of a plot of land at Jalpaiguri measuring

about 2.04 acres with its structures executed several indentures of lease in

favour of the petitioner nos. 2 to 11 for 99 years with an option of renewal

for further two terms of 99 years. The petitioner nos. 2 to 11 granted a sub-

lease to the petitioner no. 1 company with a right to sublet. Subsequently,

the petitioner nos. 2 to 11 executed several indentures of sub-lease in favour

of the petitioner nos. 12 and 13 to which the petitioner no. 1 was confirming

party. By an agreement dated 01.12.1979, the petitioner no. 1 inducted the

West Bengal State Electricity Board (now known as West Bengal State

Electricity Distribution Co. Ltd.), being the respondent no. 4, for a period of

5 years as lessee at a monthly rental. Thereafter, certain disputes and

differences arose between the petitioner no. 1 and respondent no. 4 and the

respondent no. 4 stopped paying the lease rent from April 1984. The State of

West Bengal then issued the order of requisition dated 10.08.1984 by

invoking provisions of Act II of 1984. Being aggrieved, the petitioner nos. 1

and 2 filed a writ petition before this Court. A Civil Order No. 16358 (W) of

1984 dated 26.11.1984 was issued and an interim order was passed

restraining the respondents from taking any steps in connection with the

requisition and/or acquisition of property. During its pendency, the

petitioner nos. 1 and 2 applied for direction upon the State to complete the

acquisition proceeding and pay compensation and in the alternative, to de-

requisition the property. However, the Collector failed to pass an award

within 3 years of the date of publication of notice in the Official Gazette

under Section 4(1) (a) of the Act. Hence, the notice lapsed on 31.03.1997.

Yet, the respondent no. 4 had been in illegal occupation of the said property.

Several writ petitions were filed seeking return of possession. Similar orders

as the one passed in June 1990 were passed. The writ petitioners filed W.P.

No. 16524 (W) of 2001 for necessary orders for restore possession. By an

order dated 19.10.2001, this Court directed the State to pay 50% of the

admitted arrear lease rent to the petitioners. In compliance, on 12.04.2002

the State respondent paid 50% of the arrear lease rent for the period of

23.04.1984 to 28.02.2002 after deduction of TDS. By an order dated

14.09.2005, this Court directed the acquisition proceeding to be completed

within six months, in default of which the Board was to vacate the property

in question. The Collector concerned was also directed to assess the

occupation charges and lease rent/rental compensation. Accordingly, the

State paid a sum of Rs. 18 lakhs and odd to the petitioners being the arrears

of contractual rent upto 31.10.2005. However, in spite of this Court's order,

the Collector Jalpaiguri, deliberately failed and neglected to assess

occupation charges and lease rent and rental compensation of the property

within the time stipulated. Finally, the impugned notification dated

11.04.2008 was issued by the State Government under Section 4 of the

Land Acquisition Act for construction of the regional store of the WBSEDCL.

While the said writ petition was pending, on 28th July 2010 the writ

petitioner received a special notice dated 21st July 2010 purportedly issued

under Sub-Sections (3) and (4) of Section 9 of Act-1 of 1984 notifying that

the land in question was about to be taken over by the Government for

construction of Regional Store of WBSEDCL in accordance with a purported

declaration. In fact, the said declaration dated 2nd June 2008 was published

purportedly under Section 6 of the Act of 1984 on 4th June 2008, i.e. more

than 2 years before issuance of the purported notice dated 21st July 2010.

On the prayer of the writ petitioners, a status quo order was passed by this

Hon'ble Court as the Court prima facie found that the land acquisition

proceedings had lapsed as over 2 years had elapsed since the date of

publication of declaration. On or about August 2022, the writ petitioners

filed a supplementary affidavit in the instant writ petition wherein they

stated that the occupation of the respondent no. 4 in the said property had

become illegal since the expiry of the time as mentioned in the order dated

June 5, 1990 and hence, the writ petitioners were not only entitled to the

arrear rent for legal occupation, but also entitled to the damages for

illegal/unauthorized occupation by the respondents. It was during the

pendency of the writ petition herein that the respondent no. 4 filed a

supplementary affidavit, where they pleaded that the company was no

longer desirous of acquiring/purchasing the said property and thus, had

taken a decision to vacate the land within one year of the filing of the

affidavit and to pay the rent as assessed by the Collector, Jalpaiguri from

2009 till the handing over of the possession of the land. The petitioners filed

their reply to such supplementary affidavit by the respondent no. 4, where

they expressed their concurrence. However, as far as the contention of the

respondent no. 4 that the rent was to be assessed by the Collector,

Jalpaiguri was concerned, they might be granted liberty to move the

appropriate forum. It was pertinent to mention here that on or about 2006,

the petitioner nos. 2 to 11 executed several indentures of sub-lease, thereby

assigning their right, title and interest in respect of their leasehold interest

of the said property in favour of petitioner nos. 12 and 13. The petitioner no.

1 was made a confirming party to such deeds. In the circumstances

mentioned above, the vacant possession of the said property should be given

in favour of petitioner nos. 12 and 13. In fact, during hearing of the matter

on November 10, 2022, the respondent no. 4 consented to such possession

being handed over in favour of petitioner nos. 12 and 13. One year's time to

vacate and handover possession to the petitioner nos. 12 and 13 should be

reckoned from September 20, 2022 in view of the order dated September 20,

2022, wherein the Hon'ble Court was pleased to record that the Company

would vacate the land within a year. Accordingly, the respondent no. 4

(WBSEDCL) be directed to handover vacant possession of the property in

favour of the petitioner no. 12 and 13, and the petitioner no. 12 and 13 be

granted liberty to move the appropriate forum in accordance with the law for

assessment of arrear rent/occupation charges and/or damages.

3. Learned senior counsel representing the WBSEDCL submitted as

follows. The then WBSE Board took lease of 2.04 acres of lands with three

go-downs from writ petitioner no. 1, M/s Singhania Commercial Corporation

for a period of five years by deed dated 01.12.1979 at the rate of rent

mentioned in the deed. The lease was to expire on 31.11.1984. During the

continuance of the lease, the then Board approached the State Government

for acquisition of the said property along with other property. In 1984 the

State initiated a proceeding under W.B. Act II of 1948 for acquisition of 3.17

acres of lands and a notification under Section 4(1a) of Act II of 1948 was

published on 13.07.1984. Manik Chand Debriwal & Ors who were owners of

part of requisitioned lands measuring about 1.63 acres and were also the

lessors of that land, challenged the acquisition proceeding in High Court in

C.O. No. 13268 (W) 1984. The writ petitioner nos. 1 and 2 challenged the

acquisition proceeding in High Court in C.O. No. 16358 (W) of 1984 and this

Court, by an order dated 05.06.1990, disposed of the writ petition and

directed to complete the acquisition proceeding within four months. But, the

proceeding for acquisitioning was not completed. In C.O. No. 13268 (W) of

1984, this Hon'ble Court, by an order dated 25.09.1998, quashed the

requisition proceeding and directed to pay all rents accrued up to

31.01.1999. However, the Board continued with the possession of the land

which it got on basis of the lease agreement. The petitioners filed another

writ petition being W.P. No. 16524(W) of 2001. There it was disclosed by way

of supplementary affidavit that the writ petitioners had already filed a suit

for recovery of possession of the property before a Civil Court, which was

pending. In the written statement, it was pleaded by the Board that out of

2.01 acres, 0.43 acres was vested land. In the said writ petition an order

was passed on 14.09.2005 directing to initiate acquisition proceeding under

Land Acquisition Act, 1894 and to deposit compensation money with the

Collector and to complete acquisition proceeding within a period of six

months and if not completed, the property was to be restored back to the

land owners. The Collector was directed to assess the occupation

charges/lease rents. In terms of said order, admitted lease rent up to

31.10.2005 was paid to Bimala Devi Singhania on 14.12.2005. In terms of

said order, the estimated value of compensation for a sum of Rs.

1.90,78,741.00 was deposited with the Land Acquisition Collector,

Jalpaiguri on 09.04.2008. However, the time period of six months fixed for

acquisition, expired in the meantime. In such situation, the Board filed an

appeal against order dated 14.09.2005. During the pendency of the appeal

the Board was substituted with effect from 01.04.2007. The appeal was

disposed by order dated 19.03.2008 without interfering with order dated

14.09.2005 with liberty to approach the Trial Judge seeking

review/clarification and/or modification of the order dated 14.09.2005.

Thereafter, a fresh proceeding under Land Acqusition Act, 1894 was

initiated by the Land Acquisition Collector, Jalpaiguri and a notification

under Section 4 was published on 11.04.2008 for acquisition of 1.58 acres

of lands. The declaration under Section was also published in the official

Gazette on 30.06.2008. In terms of order dated 14.09.2005, the Collector,

Jalpaiguri assessed the rent of the property till November, 2009 by his order

dated 26.11.2008 and his decision was communicated to the respondent no.

4. Pursuant to the said liberty granted by appeal Court, the respondent no.

4 filed application for review of order dated 14.09.2005 being R.V.W. No. 63

of 2008. An order was passed on 07.07.2008 in the said review application

whereby certain directions were given with further direction upon the Land

Acquisition Collector to proceed with the acquisition in terms of notification

dated 11.04.2008. A further order was passed on 05.02.2009 in the review

application along with some directions. Thereafter, lease rent, as assessed

by the Collector, Jalpaiguri, up to November, 2009 was paid to Bimala Devi

Singhania. No further rent was paid because of claims for various other

persons. At this juncture, the writ petition was filed on 09.05.2008

challenging the acquisition notification published on 11.04.2008 and mainly

praying for not to give any effect of the acquisition notice. Thereafter, the

declaration under Section 6 was published in Gazette on 03.06.2008 and

substance of the declaration was also published in the locality. Thereafter

on diverse dates payments were made to the Land Acquisition Collector,

Jalpaiguri. A total sum of Rs. 8,16,66,568.00 has been deposited by

WBSEDCL with the L.A. Collector and the said sum is still lying with the

Collector. But, unfortunately no award was declared in the acquisition

proceeding within two years from the date of declaration. In the aforesaid

situation this Hon'ble passed an interim order on 09.08.2010 staying

acquisition proceeding on the ground that the acquisition proceeding had

lapsed since no award was passed within two years from the date of

declaration. The acquisition proceeding had lapsed and there was no scope

to revive the lapsed proceeding. The erstwhile Board and now WBSEDCL

came into possession of the lands on the basis of lease and was still

continuing with the said possession. Twice attempts were made for

acquiring the property, one under the West Bengal Act II of 1948 and

another under the Land Acquisition Act, 1894. The case under Act II of 1948

was initiated when the respondent no. 4 was already in possession of the

lands on the basis of lease and ultimately, the proceeding was set aside by

this Hon'ble Court on 25.09.1998. So, the question of continuity of

possession after taking possession under Act II of 1948 did not arise in this

case. Possession continued on the basis of lease. So far as acquisition

proceeding under the Land Acquisition Act, 1894 was concerned, although

Section 17(4) was invoked dispensing with provisions of Section 5A,

possession under Section 17(1) was not taken. So, the question of

continuing possession under the Land Acquisition Act, 1894 did not arise in

this case. The respondent no. 4 continued with the possession on the basis

of lease. In the aforesaid factual situation, the respondent no. 4 decided, as

a good gesture, to restore back possession of the lands to the writ

petitioners within one year and to pay rents as would be assessed by the

Collector, Jalpaiguri from November, 2009 to the date of handing over of the

lands and the said decision was communicated to the learned Advocate of

the respondent no. 4 by a letter dated 14.09.2022. The said decision was

filed before this Hon'ble Court as an enclosure to the supplementary

affidavit affirmed on 23.09.2022 and the same was taken on record in the

writ proceeding. So, the writ petition ought to be disposed of on the basis of

the decision of the WBSEDCL as disclosed by way of supplementary affidavit

affirmed on 23.09.2022.

4. Learned counsel appearing on behalf of the State submitted that the

State would not come in the way if a solution is arrived at in terms of the

arrangements proposed by the private parties.

5. I heard the learned counsels appearing on behalf of the parties and

perused the writ petition, the affidavits and the written notes filed.

6. It appears that two attempts were made for acquiring the property,

one under the Act 2 of 1948 and another under the Act 1 of 1894. The case

under the Act 2 of 1948 was started when the respondent no. 4 was already

in possession of the land on the basis of a lease. The proceeding was finally

set aside by this Court on 25.09.1998. The possession of the land thus

continued on the basis of the lease. So far as the acquisition proceeding

under the Act 1 of 1994 is concerned, possession under Section 17 (1) was

not taken. So, the question of continuing with the possession under the said

Act did not arise.

7. It also appears that the respondent no. 4 has finally decided to restore

back possession of the land to the writ petitioners within a year and to pay

rents as would be assessed by the Collector, Jalpaiguri from November 2009

till the handing over of the land.

8. The writ petitioners appeared to be quite agreeable to this proposition,

except for the fact that as regards the rent to be assessed by the Collector,

Jalpaiguri, they may be granted liberty to move appropriate forum.

According to them, the one year's time to vacate and hand over the

possession to the petitioner nos. 12 and 13 should be reckoned from

September 20, 2022 in view of the order passed by this Court on that date

purportedly recording that the company would vacate the land within a

year.

9. In view of the above and in the interest of justice, this Court is

inclined to pass the following directions -

(i) The respondent no. 4 shall deliver vacant and peaceful possession of

the land in question to the petitioner nos. 12 and 13 quite in keeping with

the pleadings in the supplementary affidavit of the former and the

submissions made by the parties in this proceeding, within a period of one

year from the date 23rd September, 2022.

(ii) The respondent no. 4 shall pay rents as would be assessed by the

Collector, Jalpaiguri from November 2009 to the date of handing over of

possession of the land in question.

(iii) It is needless to say that this Court now cannot deal with any future

grievance that may arise out of the assessment of rent to be made by the

Collector, Jalpaiguri at a future date.

(iv) The parties shall render necessary co-operation to each other so that

the directions passed herein are complied with at the earliest and in

accordance with law.

10. With these observations, the writ petition is disposed of.

11. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

S.M