Calcutta High Court (Appellete Side)
Burdwan Development Authority & ... vs Krishnaprasad Ghosh & Ors on 24 July, 2023
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
MAT 569 of 2023
with
I.A NO: CAN 2 of 2023
Burdwan Development Authority & Anr.
Vs.
Krishnaprasad Ghosh & Ors.
with
MAT 377 of 2023
with
I.A NO: CAN 1 of 2023
Krishna Prasad Ghosh & Ors.
Vs.
The State of West Bengal & Ors.
For the For the appellants in : Sardar Amjad Ali, Sr. Adv.
MAT 569 of 2023 & Mr. Tapas Kumar Dey,
Respondents nos. 5 and 6 Mr. Sourav Chatterjee, Advocates
in MAT 377 of 2023
For the Respondents : Mr. Uttiya Ray,
in MAT 569 of 2023 Mr. Arnab Mandal, Advocates
Appellants in
MAT 377 of 2023
For the State : Mr. Chandi Charen De, AGP
MAT 377 of 2023 Mr. Anirban Sarkar, Advocates
Heard and Judgment on : July 24, 2023
DEBANGSU BASAK, J.
1. Two appeals are taken up for analogous hearing as they emanate out of
the same judgment and order dated December 15, 2022 passed in the writ
petition.
MAT 569 of 2023
With
MAT 377 of 2023
2. By the impugned order, the learned Judge disposed of the writ petition
directing the 5th respondent in the writ petition to take proceeding for direct
purchase of the plot in question and bring the same to its logical conclusion
keeping in view the present market rate of the plot within a period of three
months from the date of communication of the order.
3. Learned senior advocate appearing for the respondent no. 5 in the writ
petition, being the Burdwan Development Authority (BDA) submits that, four
title suits apart from other suits were pending. He draws the attention of the
Court to the fact that, there is a Title Appeal being TA 65 of 2017 pending. He
contends that, so far as other land owned by the writ petitioners are concerned,
they were acquired in accordance with law and as a requiring authority, his
client deposited the compensation amount. The area in question involved in this
writ petition is about 0.3 decimal. He contends that, the area in question is in
possession of the writ petitioners. He contends that, since the Title Appeal is yet
to be withdrawn, question of executing a conveyance for direct purchase does
not arise. Moreover, since it is a direct purchase question of compensation for
earlier user does not arise.
4. The writ petitioners also preferred an appeal against the impugned order
dated December 15, 2022. Learned advocate appearing for the writ petitioners
submits that the writ petitioners are entitled to compensation for the period of
BDA taking possession of the land and utilizing the same till the date of
execution of the conveyance. He relies upon AIR 1995 AP 208 [K. Sai Reddy
& Ors. Vs. Deputy Executive Engineer, Irrigation and Command Area
Development, Nampally Hyderabad & Ors. and 2023(1) CLJ (Cal)
78[Land Acquisition Collector vs. Sri Akshay Kumar Khamrai] in support
of his contention with regard to compensation. He submits that, BDA is in
possession of the land in question and that the area of the land is 0.21 acres.
He refers to the agreement entered into between the writ petitioners and BDA in
writing.
MAT 569 of 2023
With
MAT 377 of 2023
5. As noted above, two appeals are being heard. MAT 569 of 2023 is at the
behest of BDA while MAT 377 of 2023 is at the behest of writ petitioners.
6. Writ petitioners filed WPA 6619 of 2022 seeking a direction upon the
authorities to purchase 0.21 acres of land as the same was being used by BDA
as a bus terminus, and compensation for unauthorized user thereof since 2004.
7. BDA took over land belonging to the writ petitioners including 0.21 acres
involved in the writ petition and utilized the same for constructing a bus
terminus. BDA did not pay any compensation for the same.
8. It appears that, there was a meeting between the BDA and the writ
petitioners held on February 19, 2015 where, exchange of plots was agreed to.
There is a writing dated February 1, 2016 emanating from BDA to the State
Government where, permission of the State to purchase the 0.21 acres from the
writ petitioners was sought for as BDA already constructed a bus stand thereon.
9. In view of the writing dated February 1, 2016 of BDA the contention of
BDA today that, quantum of land is 0.3 acres is wholly misplaced. It is 0.21
acres. So far as the possession is concerned, the writing dated February 1, 2016
itself establishes that possession of 0.21 acres spoken of was with the BDA for
the purpose of construction of a bus terminus.
10. Contention of the appellants with regard to area of the land in question as
also with regard to the possession thereof, are utterly dishonest.
11. There is a writing dated February 14, 2017, from the Government of West
Bengal which calls upon BDA to materialize direct purchase as per Government
order.
12. Nothing transpired thereafter. BDA continued with its user of the land
without purchasing it. The writ petitioners approached the writ Court, as stated
above, in which the impugned order was passed.
13. Till date, the BDA authorities are yet to purchase 0.21 acres as was
agreed prior to filing of the writ petition. State Government authorized BDA by
the writing dated February 14, 2017 to the purchase of the land in question.
MAT 569 of 2023
With
MAT 377 of 2023
Subsequent to the impugned order dated December 15, 2022, apart from raising
dishonest pleas in the appeal as steps were taken by BDA.
14. In such circumstances, BDA will purchase 0.21 acres of land from the
petitioners on a direct purchase basis within 7 days from date. The
consideration for the purchase of the land in question will be the market price of
the land as quantified by the registration authorities by treating the land as used
for commercial purpose.
15. So far as the compensation is concerned, we are of the view that the writ
petitioners are entitled to compensation from the date on which the writ
petitioners were dispossessed till the date of the title deed being executed.
There is substance in the contention of the writ petitioners that the learned Trial
Judge overlooked the aspect of compensation for the continued illegal user of
the land by BDA. The question is of fixation of the quantum of compensation
payable by BDA.
16. The authorities cited on behalf of the writ petitioners, namely, K. Sai
Reddy (supra) and Sri Akshay Kumar Khamrai (supra) with regard to
compensation do not assist the writ petitioners since they govern fields relating
to acquisition of property under Land Acquisition Act, 1894 and the West Bengal
Land (Requisition and Acquisition) Act, 1948 respectively. The indices applied for
calculating compensation in those matters may not be appropriate in the facts
and circumstances of the present case. Foundational facts establishing the
quantum needs to be evaluated to arrive at a quantum of compensation. Such
an exercise is best left to be undertaken by a suit Court.
17. We keep the issue of compensation payable open and relegate the parties
to a suit in regard thereof. The writ petitioners will avail of their remedies before
the appropriate forum, in accordance with law within 4 weeks from date. In the
event, the writ petitioners files a suit for compensation within 4 weeks from
date, they would be entitled to set of the time spent in this High Court on such
issue.
MAT 569 of 2023
With
MAT 377 of 2023
18. List the writ petition on August 2, 2023. Compliance of this judgment
and order be reported by the Chairman, BDA. In the event, the title deed is not
executed within the time frame specified, Chairman, BDA will be personally
present on August 2, 2023.
19. Urgent photostat certified copy of this order, if applied for, be given to the
parties on priority basis on compliance of all formalities.
(Debangsu Basak, J.)
20. I Agree.
(Md. Shabbar Rashidi, J.)
Dd
