Calcutta High Court (Appellete Side)
Dr. Bimal Kumar Raj & Ors vs The State Of West Bengal & Ors on 18 July, 2023
18.07.2023
Item No.3
Ct. No.5
CHC
(disposed of)
F.M.A.1461 of 2019
IA NO: CAN/4/2023
Dr. Bimal Kumar Raj & ors.
Vs.
The State of West Bengal & ors.
Mr. Uttam Kumar Bhattacharya
...for the appellants
Mr. Soumitra Bandyopadhyay,
Mr. Aniruddha Sen
...for the State-respondents
Application for restoration is considered and
allowed for the ends of justice.
CAN/4/2023 is disposed of by recalling
order of dismissal.
F.M.A.1461 of 2019 is restored to its file and
number.
Learned advocate appearing for the
appellants reiterates the contentions of the appellants
as was advanced before the learned trial Judge. In
addition thereto, he submits that, one Collector heard
the arguments of the petitioners and such Collector
was transferred. Subsequently, another Collector
passed the order disposing of the objection under
Section 5A
By the impugned judgment and order, a
challenge launched by the writ petitioners/appellants
against acquisition proceedings was negated by the
impugned judgment and order dated July 26, 2019.
Land Acquisition proceeding being LAP case
No.14 of 06-07, LA case No.11 of 07-08 was initiated
in respect of RS and LR plot nos.86/332, 135, 137
and 138. The Acquisition of the land in question was
done on a proposal of the West Bengal Industrial
Development Corporation Limited (WBIDC).
A Gazette Notification dated November 27,
2006 was issued inviting land owners to submit their
objections, if any, to the proposed acquisition.
A representation dated December 23, 2006
was submitted by the writ petitioners/appellants
contending that land was densely populated by
cultivators and primarily agricultural in nature. The
appellant no.1 being a medical practitioner intended
to set up a Super Speciality Hospital thereat.
Appellants also filed a supplementary objection dated
January 15, 2007 contending that the land was being
acquired by the private company hence no public
interest would be subserved. There are other
approach road to the main road and the appellants
plots are located in the corner of two high ways and
are valuable.
The appellants were called for personal
hearing in terms of Section 5A of the Act of 1894.
Objection was disposed of by a reasoned order by a
Collector on November 7, 2007.
Based on the communication dated
November 13, 2007, a recommendation for
acquisition was made by the Collector. A declaration
under Section 6 of the Act of 1894 was approved by
the State Government on November 23, 2007 and
published in the English and vernacular newspaper
on November 25 and 26, 2007.
Out of 405 land owners, in respect of 84
acres of land acquired, 400 persons neither
challenged the acquisition nor filed any objection. 400
persons accepted the award of compensation however
under protest.
The objection with regard to Section 5A of
the Act of 1894 was dealt with by the learned trial
Judge and no merit was found therein.
Today, the appellants' contention is that a
different Collector passed the reasoned order dated
November 7, 2007 with the objection under Section
5A being heard by another Collector.
We requested the learned advocate for the
appellants to draw the attention of the Court to the
portion of the impugned judgement and order as to
whether such issue was raised before the learned trial
court or not. Learned advocate for the appellants
answers in the negative. We requested the learned
advocate for the appellants to draw our attention to
the pleadings in the writ petition where such an issue
was raised. His answer is again in the negative. Since
there is no foundational basis for raising the
contention that, a different Collector passed the
reasoned order dated November 7, 2007, we find no
merit therein.
The parties are required to confine
themselves within the parameters of the pleadings.
Since our attention was not drawn to any pleading in
the writ petition on such aspect therefore, we find
that such contention was without foundational basis
made in the pleadings.
Other contentions of the appellants, with
regard to suitability of the land and declaration under
Section 6 of the Act of 1894 were elaborately
discussed and dealt with by the learned trial Judge.
The learned trial Judge found that, the publications
were made in the English and vernacular newspaper
within time. One days delay in the publication in the
Official Gazette was not fatal. There is no material on
record before us to suggest that view taken by the
learned trial Judge is perverse.
Learned trial Judge, after discussing all
objections raised by the appellants, proceeded to deal
with them elaborately and negate the same. The
learned trial Judge however, observed that rejection
of the writ petition will not bar the appellants from
seeking a reference under Section 18 of the Act of
1984 for reconsideration of amount of compensation.
At the outset, we appraised the appellants
that, they would be causing themselves prejudice in
respect of the leave granted by the learned trial Judge
with regard to Section 18 of the Act of 1894. Since the
writ petitioners/appellants insisted that we look into
and consider all objections of the writ
petitioners/appellants under the Act of 1894 within
the scope and ambit as permitted under Article 226 of
the Constitution of India, we considered the appeal in
such perspective. We find no reason to interfere with
the impugned order so far as the objections with
regard to acquisition are concerned. The learned trial
judge found that, acquisition was for a public purpose
and that, there was no infraction with regard to the
Act of 1894 so far as the acquisition was concerned.
Since the appellants confined themselves to
an enquiry as permitted under Article 226 of the
Constitution of India with regard to acquisition
proceeding and chose not to avail of the benefits
under Section 18 of the Act of 1894 as permitted by
the learned trial Judge we deem it appropriate that
the liberty granted by learned trial Judge in this
regard be recalled. We therefore recall the same.
Moreover, the parties need not be sent to a different
forum to reagitate the issues with regard to the
acquisition particularly in view of the choice exercised
by the appellants.
With the aforesaid observations, F.M.A.1461
of 2019 is disposed of without any order as to costs.
(Debangsu Basak, J.)
(Md. Shabbar Rashidi, J.)
