Najrul Islam vs The State Of West Bengal & Ors
2023 Latest Caselaw 6226 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 16787 of 2015
                               Najrul Islam
                                  Versus
                      The State of West Bengal & Ors.


For the petitioner                  :      Mr. Amit Kumar Pan
                                           Ms. Tanusri Santra
                                                                .....Advocates
For the NHAI                        :      Mr. Dipankar Das
                                                                ......Advocate
For the State                       :      Mr. L.M. Mahata
                                           Mr. P.B. Mahata
                                                                ......Advocates


Heard lastly on                     :      13.04.2023

Judgment on                         :      18.09.2023

Jay Sengupta, J.:

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

praying for a direction upon the respondent authorities to determine and

pay compensation in question to the petitioner in respect of the land in

question in terms of the relevant provisions of the Right to Fair

Compensation and Transparency in Land Acquisition, Realignment and

Rehabilitation Act, 2013 and to pay damages and/or occupational charges

from 1st April, 1997 till the date of initiation of a fresh proceeding.

2. Mr. Pan, learned senior counsel appearing on behalf of the writ

petitioner, submitted as follows. At the material point of time the petitioner

was the owner of R.S. Plot Nos. 269/790, 338 and 339 measuring an area of

about 0.04 acre, 0.04 acre and 0.05 acre of land (hereafter referred to as 'the

said land') and the said land was situated within Mouza-Ghoramara, J.L.No.

68, under Police Station-Samsherganj, District-Murshidabad. In connection

with realignment/modification of National Highway 34 necessary for

construction of Farakka Barrage Project from Basudevpur to Ratanpur Part

V, the Collector being the respondent no. 2 herein initiated a proceeding

bearing Case No. RA 46/72-73 under the West Bengal Land (Acquisition and

Requisition) Act, 1948 (Act II of 1948). On or about 15th June, 1974 in

connection with the aforesaid proceeding the petitioner was served with an

order issued under Section 3(1) of the said Act of 1948 and accordingly, on

17.06.1974 possession of the said land was taken over and construction the

said road was already complete, which was permanent in nature. The said

land was never acquired upon publication of a Notification under Sub-

section (1a) of Section 4 of the said Act of 1948. On or about 07.08.1986 the

petitioner was served with a notice dated nil issued by the Collector under

Section 7(4) (2) of the said Act of 1948 and on 09.08.1986 in terms of the

said notice dated nil the petitioner duly appeared before the Collector and

received a sum of Rs. 106.05/- by cash by way of advance (on account)

towards the compensation in terms of Section 8B of the said Act of 1948.

During pendency of the aforesaid proceeding, the West Bengal Land

(Requisition and Acquisition) Amendment Act, 1994 came into force on and

from 31st March 1994 and by the said amendment Act, Section 3 of the

Principal Act (Act II of 1948) was omitted with effect from 1st April 1994 and

in view of such omission power to requisition under Section 3 of the said Act

of 1948 was taken away with effect from 1st April, 1994. However, the life of

the said Act of 1948 was extended till 31st March 1997. On 31st March 1997

the West Bengal Land (Acquisition and Requisition) Act, 1948 stood expired

and on 2nd May 1997 the Land Acquisition (West Bengal Amendment) Act,

1997 received the assent of the President of India and a notification was

published in the Calcutta Gazette. On the 1st day of April 1997 by the

aforesaid Amendment Act of 1997, Section 9 of the Principal Act, namely Act

I of 1894 was amended and after Sub-section (3) of Section 9, two Sub-

sections namely, Sub-section (3A) and Sub-section (3B) were inserted.

Instead of issuing a notice under sub-section (3A) of Section 9 of the said

Land Acquisition (West Bengal Amendment) Act, 1997, which was

mandatory in nature, for the purpose of declaration of award in respect of

the said land, the respondent no. 2 treated the said proceeding as stood

lapsed, on 16.11.2002 published a fresh Notification under Section 4(1) of

the Land Acquisition Act, 1894 in the Calcutta Gazette. The said Notification

under Section 4(1) of the Land Acquisition Act, 1894 lost its force and/or

effect from 17.11.2003 since no declaration under Section 6 of the said Act

of 1894 was made in terms of proviso (ii) to Section 6 and therefore, could

not be proceeded further for the purpose of determination of the award in

question in respect of the said land. The Land Acquisition Act, 1894 stood

repealed on and from 1st January 2014 and in place and stead of the Land

Acquisition Act, 1894, a new Act namely, the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013 (Act 30 of 2013) (hereinafter referred to as 'the said Act of 2013') came

into force on and form 1st January 2014. In the facts and circumstances of

the case it was crystal clear that the said order of requisition so issued

under the said Act of 1948 as well as the said proceeding so initiated under

the said Act of 1948 stood lapsed since no award under the said Act of 1948

was made during the life time of the said Act of 1948 and from 1st April,

1997 the respondents were forcibly enjoying the possession of the said land,

however, without any payment on account of occupational charges. As

regards the submissions advanced for and on behalf of the State

respondents, it was submitted that the Collector being the respondent no. 2

herein, was under statutory obligation to determine and pay the

compensation in question in respect of the land involved in the instant writ

petition since the said land had already been utilised for the purpose of

construction of road which was permanent in nature and such inaction of

non-payment of compensation in question was continuing breach which

lead to continuing cause of action. Reliance was placed on (2020) 2 SCC 569

(Vidya Devi versus State of Himachal Pradesh & Others). Further, in the

instant writ petition the petitioner did not challenge the acquisition

proceeding, but demonstrated the fate of the proceeding in question for the

purpose of determining the compensation in question. Reliance was placed

on (2013) 1 SCC 353 (Tukaram Kana Joshi & Ors. versus Maharashtra

Industrial Corporation & Ors.); (2020) 2 SCC 569 (Vidya Devi versus State of

Himachal Pradesh & Others) and (2016) 15 SCC 710 (State of West Bengal

& Ors. versus Aziman Bibi). As regards the judgment cited by the Learned

Advocate for the State respondents, Banda Development Authority, Banda

versus Motilal Agarwal reported in (2011) 5 SCC 394 had no manner of

application in deciding the instant writ petition in as much as the facts of

the case involved in Banda Development Authority, were completely different

from the instant writ petition. The delay and latches in the matter of

challenging the acquisition proceeding was considered taking into

consideration that possession of the land was taken over upon invoking

Section 17 (1) of the Land Acquisition Act, 1894 followed by declaration

under Section 6 and subsequent declaration of award. Similarly, the

judgment in respect of the State of Madhya Pradesh versus Bhailal reported

in AIR 1964 (SC) 1006 had no manner of application in deciding the instant

writ petition. In the facts and circumstances of the case involved in the

instant writ petition being the statutory authority the Collector the

respondent no. 2 herein, was under statutory obligation to determine and

pay the compensation in question in respect of the land involved in the

instant writ petition since the said land has already been utilised. Further,

in the instant case there was no delay of decades. The judgment cited

reported in (2020) 8 SCC 129 had no manner of application in deciding the

instant writ petition in as much as the facts and issues involved in the

judgment under reference were completely different. Further, the case of

State of West Bengal versus Niladri Chatterjee reported in AIR 2018 Cal 244

had no manner of application in deciding the instant writ petition and not

binding on this Court in deciding the instant writ petition as in the

judgment under reference no law was settled and it was contrary to the law

settled by the Hon'ble Supreme Court reported in (2016) 15 SCC 710 (State

of West Bengal & Ors. versus Aziman Bibi).

3. Mr. Mahata, learned senior counsel appearing on behalf of the

respondent no. 3, being the Special Land Acquisition Officer, Murshidabad,

submitted as follows. The writ petitioner claimed that he was the owner of

RS plot no. 269/790, 338 and 339, measuring an area of about 0.04 acre,

0.04 acre and 0.05 acre of land situated within Mouza-Ghoramara, J.L. No.

68, under Police Station Samsherganj, District Murshidabad. In support of

the claim the petitioner relied upon the RS record of rights which disclosed

that Bogdar Sk. was the owner of the land and petitioner got a share of 5

annas 6 gandas, 2 kara and 2 kranti and as such, the claim of the petitioner

could not be substantiated relating to the measurement of the land as per

record of rights. It appeared from the records that the writ petitioner had

been paid requisition compensation for 80% on account payment in respect

of 0.0265 acre in plot no. 339 and 0.01458 acres in plot no. 269/790

requisitioned from him. Thus, the claim of the petitioner in respect of

requisition of 13 decimal land did not appear to be correct as per available

records. As there was some mistake, a supplementary affidavit-in-opposition

was affirmed on 10th February, 2023 wherein stating that in the last

sentence of paragraph 4(a) due to typographical mistake the word "no" was

omitted. No affidavit in reply was filed on behalf of the petitioner refuting the

statements of the respondents. Advance compensation of 80% on account

payment for the writ petitioner was made for plot no. 269/790 in Award

Serial No. 163. However, the name was noted as Najruddin instead of Najrul

and for Award Serial No. 83 payment was made on 08.04.1986 amounting

to Rs. 106.05 and for plot no. 339 payment was made in Award Serial No.

163 on 09.04.1986 amounting to Rs. 117/-. The writ petitioner relied upon

the decision reported in (2020) 2 SCC Page 569 in the case of Vidya Devi

versus State of Himachal Pradesh wherein the fact of the case was that the

land was taken possession of by the State without initiation of any

acquisition proceeding and the appellant being an illiterate person, who was

a widow coming from rural area had been deprived of her property by the

State without resorting to the procedure prescribed by law and the defence

of the State of the doctrine of adverse possession was not accepted by the

Hon'ble Supreme Court. The lands were taken forcefully by the State. But,

in the instant case the acquisition proceeding had been initiated in

accordance with law and 80% assessment of compensation had been paid

but the acquisition proceeding could not be completed. It was not similar to

the case of Vidya Devi. The petitioner had also relied upon the case of State

of West Bengal & Ors. versus Aziman Bibi and others. The Division Bench

passed an order of compensation to be determined by appointing Special

Officer for that purpose in a lapsed proceeding could not be sustained in law

and direction was issued. Steps for acquisition once again and

determination the compensation in accordance with law be made. There was

no similarity of the facts of that case in respect of the present case as in this

instant case the proceeding had been initiated under Act-II of 1948 and 80%

assessment compensation had been paid. The writ petitioner had come

forward before this Hon'ble Court after a lapse of 43 years and the claim of

the petitioner relating to 13 decimals of land could not be substantiated by

any supported documents. In the case of Banda Development Authority,

Banda versus Motilal Agarwal reported in (2011) 5 SCC 394 the Hon'ble

Supreme Court held that it was true that no limitation had been prescribed

for filing a petition under Article 226 of the Constitution of India, but one of

the several rules of self imposed restraint evolved by the superior courts was

that the High Court would not entertain petitions filed after long lapse time

because that may adversely affect the settled/crystallized rights of the

parties. In State of Madhya Pradesh versus Bhailal Bhai, AIR 1964 SC 1006,

the Hon'ble Constitution Bench considered the effect of delay in filing writ

petition. In matters involving challenge to the acquisition of land for public

purpose, this Court had consistently held that delay in filing the writ

petition should be viewed seriously. There was a plethora of decisions where,

owing to delay of 6 months or more, this Court had repelled the challenge to

the acquisition proceedings. In U.P. Jal Nigam versus Jaswant Singh that if

a claimant was aware of the violation of his rights and did not claim his

remedies, such inaction or conduct tantamount a waiver of the right. In

Rabindranath Bose versus Union of India, the Constitution Bench of

Supreme Court had observed that the Court could not go into the stale

demands after a lapse of several years. In Dharappa versus Bijapur Coop.

Milk Producers Societies Union Ltd. the Hon'ble Supreme Court observed

that if delay had resulted in material evidence relevant to adjudication being

lost or rendered unavailable, would be fatal. Reference might be made to the

decision reported in (2020) 8 SCC Page 129. The writ petitioner relied upon

several decisions relating to the entitlement of claim of compensation like in

the case of Tukaram Kana Joshi and others versus Maharashtra Industrial

Corporation and others reported in (2013) 1 SCC 353, but in the said case

there was pleading of ignorance of poor farmers. Such pleading was absent

in this instant case. The decision in the case of Vidya Devi versus State of

Himachal Pradesh and others reported in AIR Online 2020 SC 19 had no

manner of application in this case as State did never claim adverse

possession of the requisitioned land in any manner. In the case of State of

West Bengal and others versus Niladri Chatterjee and others reported (2017)

SCC Online Calcutta 21450:AIR 2018 Cal 244, it had been held in the facts

of the instant case it could not be held by any stretch of imagination that

proceedings were ever initiated under the Act of 1894. As such abdication of

statutory duty on the part of the Collector of Burdwan to issue notice under

Section 9(3b) of Act 1894 either due to sheer callousness or negligence on

his/her part could not ipso facto translate into a claim for compensation

under the Act of 2013. However, the respondents writ petitioners were

entitled to be paid compensation as applicable in their case. From the

written instruction which was taken notice of by the learned Single Judge a

sum of Rs. 20,76,183/- was sought from the requiring body (i.e. the

Executive Engineer, Damodar Head Works Division Durgapur-2) for

payment of compensation to the writ petitioners. The said sum together with

interest @8% per annum was to be calculated from the date of taking

possession of the lands in question i.e. 29th April, 1978 as admitted by the

appellants in ground V of the Memorandum of Appeal.

4. Mr. Das, learned counsel appearing on behalf of the respondent no.

5A, submitted as follows. The said lands were not acquired under the

National Highways Act, 1956. Hence, the suit plots of land have neither

been published under Section 3A or 3D of the National Highways Act, 1956

in the Gazette of India. The land in question had been requisitioned vide

Case No. RA-46/1972-73, i.e. long before commencement of the project of

widening/4-laning of NH-34. No document/information pertaining to R.A.

Case No. 46/1972-73 was available with the National Highways Authority of

India. The land owners who did not receive compensation during the earlier

acquisition agitated when the work of widening was being done in that area.

Pursuant thereto, the District Magistrate, Murshidabad vide his letter dated

27.10.2010 informed NHAI PIU - Malda about fund placement for the old

acquisition case of RA Case No. 46/72-73 (NH-34) amounting to Rs.

2,31,03,907/-. Subsequently, the Special Land Acquisition Officer,

Murshidabad vide his letter dated 30.05.2012 sent an estimate in Form 4A

sanctioned by the Principal Secretary, L & LR Department, Government of

West Bengal amounting to Rs. 2,34,50,103/- towards LA compensation for

acquisition of land for construction of road from Basudebpur to Ratanpur

under R.A. Case No. 46/1972-73. In this manner, NHAI assumed that all

the land falling within the existing Right of Way (ROW) of NH-34 had already

been acquired and handed over to it vide above mentioned Gazette. The

petitioner came before this Hon'ble Court after 41 years from the date of

commencement of the cause of action. The petitioner had not even bothered

to explain the reason for such inordinate delay. A similar matter had been

decided by the Division Bench of this Hon'ble Court which has been

reported in 2017 SCC Online Cal 21450 (MAT No. 86 of 2016 - State of West

Bengal and others versus Niladri Chatterjee and others). The petitioner was

entitled to receive the balance 20% of compensation along with interest @8%

per annum to be calculated on the total amount of compensation from the

date of taking possession (17.06.1974) till the date of disbursement of

payment.

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

petition, the affidavits and written notes of submissions.

6. The writ petitioner claimed to be the owner of RS plot nos. 269/790,

338 and 339 at Mouza Ghoramara in District- Murshidabad. In support of

such claim, the petitioner relied upon the RS record of rights. The State,

however, disputed the claim regarding the measurement of such land.

7. It further appears from the records that the writ petitioners had been

paid advance requisition compensation for 80% on account of payment in

respect of .0265 acre in plot no. 339 and .01458 acre in plot no. 269/790

requisitioned from him. According to the State, the claim in respect of

requisitioned of 113 decimals of land was not correct.

8. Moreover, as per the State the name of Najruddin in stead of Najrul

was noted in the records.

9. In the present case, in connection with realignment/modification of

National Highway No. 34 necessary for construction of Farakka Barrage

Project from Basudevpur to Ratanpur Part V, the Collector initiated a

proceeding being Case No. RA 46/72-73 under the Act II of 1948. On

15.06.1974 the petitioner was served with an order issued under Section

3(1) of the said Act and on 17.06.1974 possession of the land was taken

over. The construction of the road is now complete. However, the said land

was never acquired upon publication of notification under Section 4 (1a) of

the said Act. On 07.08.1986 the petitioner was served with a notice under

Section 7 of the said Act and on 09.08.1986 in terms of the said notice the

petitioner appeared before the Collector and received a sum of Rs. 106.05 in

cash by way of advance towards compensation in terms of Section 8B of the

said Act.

10. Instead of issuing a notice under Section 9 (3A) of the Land

Acquisition (West Bengal Amendment) Act, 1997, the respondent no. 2

treated the proceeding as lapsed and on 16.11.2022 published a fresh

notification under section 4(1) of the Land Acquisition Act, 1894. According

to the petitioner, the said notification under Section 4(1) lost its force with

effect from 17.11.2003 as no declaration under 6 of the said Act was made.

As the Act I of 1894 stood repealed from 01.01.2014, a proper compensation

has to be paid to the petitioner under the New Act of 2013.

11. It is absolutely true that the respondents cannot enjoy a land

belonging to the petitioner without compensating the petitioner for acquiring

the same in accordance with law. In ordinary course, one could fairly claim

invoking of the Act of 2013 for calculating compensation, even if there is

some delay in making such claim.

12. However, there are two special circumstances present in the instant

list. First, there is a delay of decades in applying for such compensation

despite the fact that the petitioner was aware of the proceeding, at least from

the date they collected 80% of the estimated compensation even if the same

be in terms of Section 8B of the Act II of 1948. The other special feature is

quite obviously the acceptance of such money as far back as in 1986.

13. It has been contended on behalf of the State that the decision in Vidya

Devi's Case (supra) is distinguishable as there the possession was taken

without initiation of any acquisition proceeding and that the appellant was

an illiterate person.

14. In the present context the ratio laid by the Hon'ble Apex Court in

Banda Development Authorities Case (supra) appears to be very pertinent in

the facts and circumstances of the present case that although no limitation

was prescribed for filing a writ petition, but one of the several rules of self-

imposed restraint evolved by the superior Courts was that the High Court

would not entertain petitions filed after long lapse of time.

15. Although there could be no precedent on facts, the facts and

circumstances of the present case have uncanny similarity with those

involved in Niladri Chatterjee's Case (supra). It would also not be correct to

assume that no law was laid down in that decision. There, it was held that

the abdication of statutory duty on behalf of the Collector to issue notice

under Section 9 (3B) of the Act of 1894 either due to sheer callousness or

negligence could not ipso facto translate into a claim for compensation

under the Act of 2013.

16. It would not be in the interest of justice if this Court fails to exercise a

self-imposed restraint and allow the petitioner to make higher claims after a

lapse of more than 4 decades and only once a new Act comes into operation

providing for much higher compensation.

17. In view of the above, this Court does not find any merit in the writ

petition.

18. However, the petitioner shall be at liberty to claim the relief in terms of

the ratio laid down in Niladri Chatterjee's Case (supra). Accordingly, the

concerned Collector shall pay to the petitioner the rest sum of 20% of the

advance compensation together with interest at the rate of 8% per annum to

be calculated from the date of taking possession of the land in question i.e.,

17.06.1974.

19. With the above observations, the writ petition is disposed of without

costs.

20. 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