Anita Mukherjee & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 2167 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 8172 of 2011
                                    With
                            WPA 4886 of 2008
                CAN 1 of 2008 (Old No: CAN 3997 of 2008)
                          Anita Mukherjee & Ors.
                                    Versus
                      The State of West Bengal & Ors.


For the petitioner             :     Mr. Dilip Kumar Samanta
                                     Mr. Biswapriya Samanta
                                     Mr. Debapriya Samanta
                                                             .....Advocates
For the State                   :    Mr. Ram Mohan Pal
                                                             .....Advocate


Heard lastly on                 :    10.01.2023

Judgment on                     :    31.03.2023

Jay Sengupta, J.:

1.    WPA 8177 of 2011 is an application under Article 226 of the

Constitution of India praying for direction upon the respondents to rescind,

recall and/or withdraw the impugned land acquisition proceeding initiated

by the respondent no. 4 in LA Case No. 41179 of 1988-89 as well as the

impugned Award made in the same.

2. It appears that the original writ petitioners herein had earlier filed

another application being WPA 4866 of 2008, inter alia, praying for

correction of record of rights and praying either for initiating an acquisition

proceeding afresh or for releasing the land in question. The same was

dismissed on 04.04.2008. By an order dated 11.04.2012, the earlier order

was recalled and the application was restored to its file. However, by that

time WPA 8172 of 2011 had come into existence.

3. It further appears from the initial submissions of the learned counsels

for the parties that the land records having been corrected by the

appropriate authority, the issue is no more a contentious one. Therefore, a

decision in WPA 8172 of 2011 would fairly govern the other application

being 4886 of 2008. In this backdrop, the applications had been taken up

for hearing together.

4. Mr. Samanta, learned counsel for the petitioners, submitted as

follows. On 19.01.1966 the predecessor-in-interest of the petitioners

purchased land measuring 2.20 acres lying at R.S. Dag No. 336, R.S.

Khatian No. 175, J.L. No. 21, Mouza - Tarulia, Police Station - Rajarhat,

District - North 24 Paraganas. Subsequently, the J.L.R.O., Rajarhat passed

an order of vesting and made an order for settlement of the said land. On

22.11.1979 the respondents accepted the rent of the land in question from

the predecessor-in-interest of the petitioners for the period 1974 to 1979.

On 09.01.1982 the predecessor-in-interest preferred a writ petition being

C.O. No. 2156 (W) of 1982 before this Court and this Court was pleased to

make the said Rule absolute by quashing the order of vesting and directed

the respondents to treat the petitioners as raiyat directly under the State of

West Bengal and to accept rent regularly. On 21.03.2005 the petitioner no.

1 made a representation to the Minister of the Land and Land Reforms

Department on 04.07.2005 contending, inter alia, that the order of vesting

having been quashed by the Hon'ble Court by the order dated 09.01.1982 in

C.O. No. 2156(W) of 1982 and the land having been acquired by the

Government without notice to the petitioners, the Record of Rights had not

been corrected and the same was kept pending. The petitioner no. 1 however

also made a prayer for making payment of compensation relating to the

acquisition of the said land in question. It was submitted that a proceeding

had been initiated by the BL & LRO, Rajarhat, the initiation of the

proceeding being with effect from 03.01.2006 being North 24 Pgs/MISC

(Peti) No. 1 of 2006 in the nature of a proceeding under Section 57 of the

West Bengal Land Reforms Act. The order sheet of the Misc. proceeding with

effect from 03.01.2006 to 28.05.2008 was clear regarding the divesting of

the land in question in favour of the petitioners to the extent of 3.53 acres of

land and in respect of the acceptance of the rent from petitioners. It was

also declared that the order of vesting was erroneous and hence, the suit

land was kept outside the ambit of Section 14T(3) of the West Bengal Land

Reforms Act, 1955 and a Khatian was opened up in the name of Hiranmoy

Mukherjee under Section 51A(4) of the West Bengal Land Reforms Act, 1955

suo motu. The Mouza was finally published in 1985. It was also held that

the erstwhile raiyat of the suit plot was Hiranmoy Mukherjee although the

land was subsequently acquired on 1998 - 99 vide L.A. Case No. 4/179 of

1988-1989. It was also held that as a matter of fact, the raiyat Hiranmoy

Mukherjee was liable to get retrospective effect since he had purchased the

land and it was detected that the land was erroneously vested and as such

the land was treated as never vested. It was directed to open up Khatian in

the name of Hiranmoy Mukherjee and as he expired in 1989 and the names

of the legal heirs were noted. Hence, 2.20 acres of land would be divided

amongst several legal heirs of Hiranmoy Mukherjee by opening L.R. Khatian

being No. 752, 753, 754, 755, 756, 757 and 758 with a entry of acquisition

of the said L.R. Khatians and the proceeding was disposed of. The

respondents having admitted that the acquisition of the land in question

treating the same as a vested one was erroneous and as such, no notice of

acquisition had been served upon the petitioners at any point of time in

terms of Section 9(3) read with Section 45 of the L.A. Act, 1984. The

acquisition of land without notice upon the interested parties like the

petitioners who were the owners of the land was wholly illegal including the

award made by the Land Acquisition Collector. On 03.07.2008 the petitioner

no. 3 made a representation before the respondent no. 3 praying for release

of the compensation money kept in P.L. A/C. The respondents accepted the

rent of the land in question from the petitioners for the period with effect

from 1985 to 2000. The respondent no. 4 had initiated Land Acquisition

Proceeding being L.A. Case No. 4/179 of 1988-1989 without serving any

notice upon the petitioners which was mandatory in terms of Section 9(3) of

the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) read

with Section 45 of the said Act and acted illegally in making an award in

favour of the Collector, North 24 Parganas in respect of the land of the

petitioners. The petitioners were affected by the impugned acquisition

proceeding. Under Section 9(3) of the said Act read with Section 45 of the

said Act, it was provided there that service of notice upon the persons

interested in the land was a mandatory one. The respondents proceeded

against the petitioners illegally and the initial action of the respondents in

respect of the acquisition of the land in question was not in consonance with

law. Therefore, all subsequent actions relating to the acquisition including

the award alleged to have been made by computing the value of the land in

question under Section 12(2) of the Land Acquisition Act, 1984 and all

subsequent actions were liable to be set aside and quashed in terms of the

declaration of law made by the Apex Court in the judgments reported at

(1990) 1 SCC 193, (2005) 3 SCC 422 and (2011) 5 SCC 142.

5. Mr. Pal, learned counsel representing the State, submitted as follows.

On 11.01.1999 plot no. 336 BIL by classification measuring 3.53 acres of

mouza Tarulia J.L. No. 21, P.S. - Rajarhat, Dist. North 24 Parganas was

acquired in full in LA Case No. LA-4/179 of 1998-99 for a public purpose

namely, for Rajarhat New Township projects, by virtue of notification under

section 4 of the Land Acquisition Act, 1894 being no. North 24 Parganas No.

293-LA-4/179 of 1998-99/NTP, which was published in the Calcutta

Gazette Extra Ordinary on 05.04.1999. On 05.04.1999 the aforesaid

acquisition was published in the Calcutta Gazette Extra Ordinary and also

published in English Daily News Paper "The Asian Age" on 02.04.1999 and

in "Ganashakti" on 03.04.1999. On 03.05.1999 the declaration was

published in the Calcutta Gazette Extra Ordinary and in "The Asian Age"

and in the "Ganashakti" on 03.05.1999 under Section 6, Act-I of 1894 being

no. North 24 Parganas no. 451-LA-4/179 of 1998-99/NTP. A copy of said

publication dated 03.05.1999 was annexed to the opposition. A notice under

Section 9 of the LA Act 1894 was issued upon the recorded owner asking to

appear for verification before the appropriate authority on 18.06.1999. On

25.11.1999 after verification, the award was made and was declared by the

Collector. On 10.12.1999 possession of the land was taken and handed over

to the requiring body i.e. the Housing Department Board of West Bengal. In

1991 and 1999 as the said plot 336 was involved in title suit being no. T.S.

371 of 1991 and another title suit 524 of 1999 by and between the writ

petitioners and another person for dispute of title and claim, the amount of

award money was kept in deposit with the Collector, North 24 Parganas

under proper head of account. In 1999, in spite of the fact that notification

under Section 4(1) and declaration under Section 6 of the Act-I of 1994 was

published in Calcutta Gazette and also in English and Bengali News papers

and the substance of the notice was widely published in the locality, the writ

petitioners and/or their predecessor-in-interest/any of their representatives

did not appear nor raise any claim before passing of the award, which

became final. In 2008 the writ petitioner filed W.P. No. 4886(W) of 2008 and

stated in para 8 that the writ petitioners came to know that the said land

had been acquired by the respondent/State for the development of area, but

any compensation had never been provided to the petitioner. In para 18 of

the writ, the petitioner stated that such compensation should be Rs.

54,03,719.72 and in para 19 stated that they were deprived from lawful

earnings and in prayer (i) prayed for an order directing the respondents to

pay the writ petitioners the sum already kept reserved in respect of the said

land and in page 48 the writ petitioners prayed for compensation for such

acquisition. On 10.09.2008 ASPIO & SPL. L.A.O. North 24 Parganas Barasat

gave answer to the applications under the RTI Acts, 2005 as prayed for by

the writ petitioner, Narendra Nath Mukherjee. In 2008 the writ petitioners'

names were recorded in the records of rights in respect of 2.20 acres of land

for the first time and not before the vesting of land.

6. I heard the learned counsels for the parties and perused the writ

petitions, the affidavits and the written notes of submissions.

7. The facts relevant for adjudicating the present lis may be briefly

enumerated as follows. On 19.01.1966 the predecessor-in-interest of the

petitioner purchased land measuring about 2.2 acres at mouza Tarulia J.L.

No. 21, P.S. - Rajarhat, Dist. North 24 Parganas. Subsequently, an order

was passed of vesting and settlement of the said land in 1982. The said

predecessor-in-interest was constrained to prefer a writ petition being CO

No. 2156 (W) of 1982 and this Court was pleased to quash the order of

vesting and direct the respondents to treat the petitioners as raiyats directly

under the State and to accept rent. In 2005 the petitioner no. 1 made a

representation before the concerned Minister for having the record of rights

corrected. But, the same was kept pending. Thereafter, the BL & LRO

Rajarhat initiated a proceeding in respect of the purported divesting of land

in favour of the petitioners. It was declared that the order of vesting was

erroneous and a khatian was opened in the name of Hiranmoy Mukherjee,

the erstwhile raiyat. It was also held that the raiyat was liable to get

retrospective effect. As the said Hiranmoy Mukherjee had passed away in

1989, the names of the legal heirs were noted. Yet, the respondent no. 4

initiated land acquisition proceeding being LA Case No. 4/179 of 1988-89

without serving any notice to the petitioners which was mandatory in terms

of Section 9(3) of the Land Acquisition Act 1894. The petitioners contended

that such acquisition proceeding without notice to the real owners was bad

in law. Since the land was utilised, the petitioners were required to be

compensated by starting fresh proceeding. On the other hand, the State

contended that the record of rights were not corrected by the time steps

were being taken in the land acquisition cases. However the notification

under Section 4 of the Act I was published in the Gazette as well as in daily

newspapers as required. The declaration under Section 6 was also published

accordingly. A notice under Section 9 of the Act I was issued upon the

recorded owner. Only thereafter on 10.12.1999 possession of the land taken

and handed over to the requiring body i.e., the Housing Development Board

of West Bengal. Therefore, there is no illegality whatsoever in the acquisition

proceeding. The petitioners did not respond to the public notices and did not

intimate the concerned authorities about their claim.

8. Had it been a case that the proceeding for acquisition had lapsed and

the land had been taken over and utilised, one would have simply directed

initiation of a fresh proceeding under the Act of 2013. But, here the

authorities proceeded with the name of the owner recorded in the land

records on the premise that there was a title dispute in respect of such land.

Adequate public notices were given and even a notice was sent to the

recorded owner and the land was finally handed over to the requiring body.

Compensation money too was deposited with the Collector.

9. It is indeed true that the petitioners did not respond to the publication

of notices and declaration in the official Gazette and in the local

newspapers.

10. After the order of divesting was passed, the BL & LRO should have

had the records corrected. But, the predecessor-in-interest also could have

taken steps to have the relevant records corrected. Making a representation

before the Hon'ble Minister is hardly the proper way of going about things.

Finally, an application was made for correcting the records only after the

acquisition was effected. These latches on the part of the petitioners go

against them in trying to set the entire events at naught.

11. However, it is significant that the land records authority declared that

the petitioners would be getting retrospective effect. This, at best, would

make the petitioners entitled to compensation.

12. In other words, the proceeding for acquisition of land did not suffer

from any apparent procedural illegality. It is only after the subsequent

correction of records that the petitioners could claim that they were deprived

of their dues in respect of such land.

13. Therefore, this is not a fit case to turn everything upside down and

direct a fresh initiation of proceeding for acquisition of land. Afterall, the

land has already been utilised through a valid acquisition proceeding after

giving public notices.

14. The only harmonious way of providing a retrospective effect to the

petitioners' rights is to direct the respondents to pay the amount of

compensation money deposited before the concerned Collector in lieu of the

acquisition of the petitioners' land to the petitioners.

15. In view of the above discussions, the writ petitions and connected

application, if any, are disposed of by directing the respondents to pay the

said sum received by the concerned Collector in lieu of the acquisition of the

petitioners' land to the petitioners, as per their respective shares, within a

period of eight weeks from the date of communication of this order.

16. 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