Sri Monoranjan Ghosh & Anr vs State Of West Bengal & Ors
2023 Latest Caselaw 4212 Cal

DL-4

14.07.2023

Court No.5                         FMA 540 of 2020
(AD)                                      With
                                 IA No.: CAN 2 of 2023

                          Sri Monoranjan Ghosh & Anr.
                                       Vs.
                           State of West Bengal & Ors.



                   Mr. Asok Nath Ghosh
                   Mr. Kinkar Chandra Basu
                                                  ... for the appellants.


                   Mr. Lalit Mohan Mahata
                   Mr. Rudranil De
                   Mr. Ziaul Haque
                                                  ... for the State.


                         In re. IA No.: CAN 2 of 2023

CAN 2 of 2023 is an application for restoration.

For the ends of justice and considering the plea

sought to be set up for restoration, we allow the

application for restoration.

The order of dismissal of the appeal dated May 4,

2023 is recalled.

Appeal is restored to its original file and number.

In re.: FMA 540 of 2020

The application for restoration was taken up for

consideration two days earlier.

The parties were requested to address the Court

on the merits of the appeal also.

While considering the application for restoration,

the parties were requested to address the Court on the

merits of the appeal in order to appreciate the merits of

the appeal while considering the application for

restoration.

Learned Advocate appearing for the appellants

submits, that an acquisition proceedings was initiated as

against the property belonging to the appellants. He

submits that, the appellants filed an objection in the

proceedings. Supplementary objection was also filed.

The appellants were heard with regard to the objection.

A decision was taken on the objection. An order on the

objection was passed.

Learned Advocate appearing for the appellants

submits that, based on the disposal of the objection

under Section 5A of the Land Acquisition Act, 1894, a

declaration under Section 6 of the Act of 1894 was

approved by the Government on November 23, 2007.

The same was published in the English and Vernacular

Newspapers on November 25, 2007 and November 26,

2007 respectively. He draws the attention of the Court

to the fact that the Gazette Notification was published on

November 27, 2007. He contends that, therefore, the

publication of the Gazette Notification was beyond the

period prescribed under Section 6 of the Act of 1894.

Therefore, according to him, the entire acquisition

proceeding is invalid.

Without prejudice to such contention, he submits

that, the land was not adequately and properly

described. The notifications speak of middle area. The

middle area was not demarcated. Therefore, on such

counts also, the acquisition proceedings stand vitiated.

Learned Advocate appearing for the appellants

draws the attention of the Court to the conduct of the

authorities. He contends that, steps under Section 7 of

the Act of 1894 were taken prior to the declaration under

Section 6 of the Act of 1894 being published in the

Gazette Notification. Referring to Section 8 of the Act of

1894, learned Advocate appearing for the appellants

submits that, the lands sought to be acquired is yet to be

marked, measured and planned in terms of Section 8 of

the Act of 1894. Referring to the impugned order,

learned Advocate appearing for the appellants submits

that, such contentions were not correctly appreciated

and that, the impugned order should be set aside.

State is represented.

All the contentions raised by the appellants in the

appeal were raised and considered by the learned Trial

Judge in extenso. The learned Trial Judge not only took

the factual matrix into consideration but also the

authorities cited at the bar on behalf of the appellants in

the impugned judgment. The view taken by the learned

Trial Judge is a plausible view. There is no material on

record to suggest that the view taken by the learned Trial

Judge as recorded in the impugned order is perverse.

So far as the aspect of consideration of the

objection is concerned, the learned Trial Judge noted

that, the objection of the appellants to the acquisition

proceedings were, in fact, considered elaborately by the

order dated October 31, 2007 of the Collector. The

appellants were allowed to file the supplementary

objection in addition to their original objection. The

order of the Collector recorded that, the appellants were

not able to produce any applications or steps taken

towards the proposal for establishment of a super-

speciality hospital. The location of the land was shown

to be in harmony with the objects and purpose of the

acquisition. The Collector also noted that, the appellants

were required to show that the land proposed to be

acquired was not suitable for the purpose of such

acquisition and that, there was alternative land available

to meet the requirements of the acquisition.

In the facts of the present case, acquisition was

sought for on behalf of a private company for the

purpose of setting up an industrial park. The appellants

seek to set up super-speciality hospital on the said land.

Given the nature of the user that the appellants seek to

put the land into and the proposed object of acquisition,

it cannot be said that the land sought to be acquired was

unsuitable for the purpose of the acquisition. Both the

appellants and the proposed user of the land on

acquisition require the land to construct a building

thereat. One is for industrial park. The other is for

super-speciality hospital. Therefore, it cannot be said on

the strength of the contentions of the appellants itself

that the land sought to be acquired did not meet the

requirement of its proposed user.

The next contention with regard to the declaration

being beyond prescribed time is concerned, the learned

Trial Judge noted that, that the publication of the

declaration in the two newspapers, one in English and

the other in Vernacular happened within the time

prescribed. The learned Trial Judge noted the provisions

of Section 6 of the Act of 1894 and expressed the view

that, it would be pedantic reading of Section 6 of the Act

to hold that the publication of the declaration in the

Gazette one day after expiry of the period was fatal to the

acquisition proceedings.

We are considering an appeal against an order

passed under Article 226 of the Constitution of India.

The scope of enquiry under Article 226 of the

Constitution of India is limited. Since, the authorities

caused publication in the newspapers within time, there

was no material to infer that the authorities did not send

the declaration to be published in the Calcutta Gazette

within time.

Therefore, there is no material on record to upset

the view taken by the learned Trial Judge in the

impugned order with regard to the issue of Section 6 of

the Act of 1894.

Demarcation under Section 8 and actual

demarcation of the land or its description issues were

also considered by the learned Judge in the impugned

order. The plot number is identified in the declaration

notice. It is nobody's case that the plot does not belong

to the appellants before us. There is no dearth of

understanding between the rival parties as to the plots

concerned. Therefore, this issue, in our view, is not

germane.

The learned Judge, granted leave to the appellants

to approach the Collector under Section 18 of the Act of

1894.

Since the appellants chose not to avail such

opportunity as granted by the learned Trial Judge and

since the appellants insisted that the appeal court

considers all the issues on the basis of materials on

record, therefore in order to shorten the litigation

between the parties, it would be appropriate that, such

leave granted to the appellants is withdrawn. Moreover,

the appellants cannot be allowed to repeatedly raise the

same issues.

The appellants consciously chose to press on the

appeal given the limited scope of an appeal from an order

passed in the writ jurisdiction. The appellants were

repeatedly apprised that they would be better placed to

avail of the remedy under Section 18 of the 1894 Act

which gives wider scope in such an adjudicating process.

The appellants consciously exercised their right to press

on the appeal.

In such circumstances, the impugned order is

modified to the extent of the liberty granted to the

appellants in terms of Paragraph 34 thereof. Such

liberty is withdrawn.

FMA 540 of 2020 is disposed of accordingly

without any order as to costs.

(Debangsu Basak, J.)

(Md. Shabbar Rashidi, J.)