Shivam Industrial Parks & Estate ... vs The State Of West Bengal & Ors
2023 Latest Caselaw 2176 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                          WPA 13581 (W) of 2012
            Shivam Industrial Parks & Estate Limited & Anr.
                                    Versus
                      The State of West Bengal & Ors.


For the petitioner             :     Mr. Aniruddha Chatterjee
                                     Mr. Rahul Karmakar
                                     Mr. Sounak Mukherjee
                                                              .....Advocates
For the State                   :    Mr. Amitesh Banerjee
                                     Mr. Suddhadev Adak
                                                              .....Advocates
For the respondent nos. 3 & 4 :      Mr. Ashok Kr. Banerjee

Mr. Debabrata Banerjee Mr. S.K. Chakraborty .....Advocates Heard lastly on : 10.01.2023

Judgment on : 31.03.2023

Jay Sengupta, J.:

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

praying for direction upon the respondent to forthwith hand over 1.50 acres

of land at Mouza-Gopalpur, Police Station-Rajarhat, North 24 Paraganas

adjacent to the road constructed, inter alia, within 1.69 acres of land

belonging to the petitioners as stated in the terms of settlement annexed

with the writ petition on payment of acquisition cost for the land within a

stipulated period.

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

follows. At all material times, the petitioner company was the owner of the

land measuring about 3.55 acres in Mouza-Gopalpur, Police Station-

Rajarhat, North 24 Paraganas. By a notification dated 09.06.2006, the said

plot of land was sought to be acquired under the Land Acquisition Act,

1894. Assailing the said notification to acquire 2.96 acres of land out of the

said 3.55 acres, the petitioner company filed a writ petition before this Court

being WP No. 17498(W) of 2006. The same was dismissed on 07.08.2006.

Being aggrieved, the petitioner company preferred an appeal. The said

appeal being MAT No. 3582 of 2006 was disposed of on 01.11.2006 by

granting liberty to the petitioner company to raise a formal objection against

the notification dated 09.06.2006, which was to be considered and disposed

of by the concerned authorities upon granting an opportunity of hearing.

Aggrieved by this, the State preferred a Special Leave Petition before the

Hon'ble Supreme Court. This was registered at SLP (Civil) No. 3148 of 2007.

During the pendency of such petition, the State through the Managing

Director of HIDCO entered into terms of settlement with the petitioner

company and settled the disputes amicably. It was agreed that out of the

said 2.96 acres of land, 1.27 acres of land would be immediately released.

After such release, 1.69 acres would remain as balance. It was recorded that

1.50 acres of land was lying as surplus land with the Transport Department

Government of West Bengal and the petitioner company would accept the

said 1.5 acres of land in lieu of the said 1.69 acres of land on payment of

cost of acquisition of such 1.50 acres of land. The settlement was accepted

by an agreement dated 06.02.2009, which was recorded before the Hon'ble

Apex Court in the order dated 13.05.2009. The Special Leave Petition was

thus disposed of. Pursuant to such compromise, the Government of West

Bengal by a notification dated 09.04.2010 issued a fresh acquisition notice

for the said 1.69 acres of land which was also duly handed over by the

petitioner company to the State. The remaining 1.27 acres of land was

released by the State in favour of the petitioner. Despite repeated reminders

and writ petitions, no steps were taken by the State to make over the said

1.5 acres of land to the petitioner. Nor was the cost of acquisition of the said

land that was lying surplus with the Transport Department indicated. This

led to the filing of the present petition. The writ petition was very much

maintainable before this Court for executing an order passed in the

previously instituted writ petition. A contempt petition before the Hon'ble

Apex Court could only be invoked by the petitioner against an offender and

not to execute any order although consequently, the order might have been

executed. The existence of a remedy of contempt did not take away the right

of the petitioner to execute a Court order. Reliance was placed on the

decisions reported at Bibekananda Mondal Versus State of West Bengal,

(2003) 1 CHN 154 and Indrapuri Studio Pvt. Ltd. & Anr. Versus West Bengal

State Warehousing Corporation and Ors., (2003) 4 CHN 148 and on a

judgment the Hon'ble Supreme Court reported at AIR 1983 SC 1134. In

Kapildeo Prasad Shah and Ors. Versus State of Bihar and Ors., (1999) 7

SCC 569, it was held that initiation of a contempt proceeding was not a

substitute for an execution proceedings though at times the purpose might

be achieved. In Rama Narang Versus Ramesh Narang and Anr., (2006) 11

SCC 114, it was held that the fact that a decree was executable did not take

away the Court's jurisdiction of contempt. During the pendency of the

petition by a letter dated 14.05.2019, the cost of acquisition of land

measuring 1.5 acres was disclosed as Rs. 5,40,90,855/- as per the direct

purchase policy. However, the petitioner company disputed the receipt of the

letter. Moreover, the letter was in clear in contravention of the terms of

settlement dated 06.02.2009 recorded by the Hon'ble Apex Court. The

affidavit in opposition of the State, except for reliance on this letter, was

basically defenceless. There was no other option for the State, but to comply

with the order dated 13.05.2009 as effectively merged with the order dated

01.11.2006 passed by this Court.

3. Learned counsel appearing on behalf of the State submitted as

follows. A large number of land acquisition cases went up to the Hon'ble

Apex Court and finally, the same were settled and for this purpose the

parties duly filed terms of settlement. On the basis of this, the Special Leave

Petition was disposed of. By a letter dated 14.05.2019, the State had

intimated the learned advocate of the petitioner that the cost of acquisition

for further land measuring 1.5 acres was 5,40,90,855/-. The writ petitioner

failed to pay the said acquisition cost to the Government. Upon payment of

such sum, the State shall duly transfer the land to the writ petitioner.

Otherwise, the writ petition did not have any merit.

4. Learned Senior Counsel representing the respondents 3 and 4

submitted as follows. The writ petitioner did not prefer any contempt

application before Hon'ble Supreme Court although the purported

settlement between the parties were recorded in an order passed by the

Court. Instead, the writ petitioner preferred an application under Article 226

before this Court. This was not maintainable. This was itself not an

execution petition, which could be filed to cure a failed attempt to reach a

settlement by and between the parties. Besides, by the order dated

13.05.2009 the Apex Court held that the High Court would examine the

scope. This would go to distinguish the decision cited by the petitioner in

Kapildeo Prasad Shah and Ors. Versus State of Bihar (supra).

5. I heard the submissions of learned counsels appearing on behalf of

the parties and perused the writ petition and the, affidavits filed and the

written notes of submissions.

6. The facts relevant to the adjudication of the present list in brief as

follows. The petitioner company was the owner of the land measuring about

3.55 acres in Mouza-Gopalpur, Police Station-Rajarhat, North 24 Paraganas.

By a notification dated 09.06.2006 the land was sought to be acquired

under the Land Acquisition Act, 1894. Challenging such notification to

acquire 2.96 acres of land out of the said 3.55 acres, the petitioner company

filed a writ petition, which was dismissed on 07.08.2006. The appeal

preferred by the petitioner company was disposed on 01.11.2006 granting

liberty to it to raise a formal objection against such notification, which was

to be considered by the concerned authorities. Aggrieved by this, the State

preferred a Special Leave Petition being SLP (Civil) No. 3148 of 2007. During

pendency of such petition, the State through the Managing Director of

HIDCO entered into terms of settlement with the petitioner company and

settled the disputes amicably. It was agreed that out of the said 2.96 acres

of land, 1.27 acres would be immediately released. After such release, 1.69

acres would remain. It was recorded that 1.59 was lying as surplus land

with the transport department and the petitioner company would accept the

said 1.5 acres in lieu of the said 1.69 acres on payment of cost of acquisition

of such 1.5 acres of land. The settlement was accepted by an agreement

dated 06.02.2009 and was recorded in the order dated 13.05.2009 of the

Hon'ble Supreme Court. Pursuant to this, the State issued a notification

dated 09.04.2010 for fresh acquisition of the said 1.69 acres of land that

was duly handed over by the petitioner company to the State. The remaining

1.27 acres of land was released by the State in favour of the petitioner.

However, despite reminders no steps were taken by the State to hand over

the said 1.7 acres of land to the petitioner nor was the cost of acquisition

indicated.

7. While the petitioner company contends that regardless of any

contempt petition before the Hon'ble Apex Court, a writ petition can be

maintained before the High Court for having a settlement recorded before

the Hon'ble Apex Court executed. This is opposed by the respondents and it

is contended that an application for execution of an order passed by the

Hon'ble Apex Court would lie before that Court and not before the High

Court and the decisions relied on in this regard are factually of such nature

and therefore, distinguishable on present facts.

8. Another bone of contention between the parties is a purported letter

dated 14.05.2019 by which the cost of acquisition of land measuring 1.5

acres was disclosed as Rs. 5,40,90,855/- allegedly by the respondents.

9. It is trite law that existence of a remedy of contempt cannot take away

the right of the petitioner to execute a Court order.

10. On the other hand, respondents were unable to substantiate their

stand as regards whether a writ petition could be filed before a High Court

for executing an order passed by the Supreme Court.

11. At the crossroads, one is reminded of the latin maxim - Ubi Jus Ibi

Remedium (where there is a right, there is a remedy).

12. The right accrued to the petitioner company by way of a settlement

recorded before the Hon'ble Apex Court cannot be simply effaced on the

purported ground of absence of an appropriate remedy. In the writ

jurisdiction, the High Court has plenary powers to pass necessary orders in

order to do justice. Therefore, this Court finds no reason not to entertain the

application for appropriate relief made by the petitioner company in

pursuance of an order passed by the Hon'ble Supreme Court regarding a

settlement between the parties.

13. Even without going into the factual debate about whether the notice

dated 14.05.2019 intimating the cost of acquisition of land measuring 1.5

acres was actually served, one can fairly arrive at a harmonious and

equitable conclusion that in the view of the settlement arrived at between

the parties before the Hon'ble Supreme Court, it will be apt to direct the

respondent authorities to release 1.5 acres of land in question to the

petitioner company upon payment of cost of acquisition for the said land by

it.

14. In view of the above discussions and in the interest of justice, this

Court is inclined to pass the following directions -

(i) Within a period of one month from the communication of this order, the

respondent authorities shall communicate to the petitioner company the

cost of acquisition for the said land measuring 1.5 acres.

(ii) The petitioner company shall make payment of the said sum within two

months from the date of such communication and simultaneously, the

respondent authorities shall deliver vacant and peaceful possession of the

said land measuring 1.5 acres to the petitioner company upon complying

with incidental formalities.

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

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