DILIP KUMAR GHOSAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India praying for a direction upon the respondents to rescind and/or withdraw the notice dtd. 2/5/2014 and to pay compensation as per the new Act of 2013 by initiating a fresh proceeding after treating the earlier proceeding being Case No. R.A.-44/77-78 as lapsed.

(2.) Mr. Pan, learned senior counsel appearing on behalf of the petitioner, submitted as follows. The petitioner is the owner of R.S. Plot Nos. 1696, 2356, 2199 and 1721 measuring an area of about 0.12 acre, 0.06 acre, 0.08 acre and 0.10 acre respectively (hereinafter referred to as 'the said land') and the said land is situated within Mouza - Kandra, J.L. No. 114, presently under Police Station - Salar, District - Murshidabad. For providing proper facilities for transport and communication, viz. widening of Salar-Bharatpur Road the 4thand 5thkilometre in the district of Murshidabad, the Collector being the respondent no. 2 herein, initiated a proceeding under the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948), at present expired, bearing Case No. R.A. - 44/77-78 and the possession of the said land was taken over on 28/4/1978, upon an order under sub- Sec. (1) of Sec. 3 of the said Act II 1948. Subsequently, the said land was acquired upon publication of a notification under Sub Sec. (1a) of the Sec. 4 of the West Bengal Land (Acquisition and Requisition) Act, 1948 (Act II of 1948) and the said notification was published in the Calcutta Gazette on 27/9/1982. During pendency of the aforesaid proceeding, the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1994 came into force on and from 31/3/1994 and by the said Amendment Act Sec. 3 of the Principal Act (Act II of 1948) was omitted with effect from 1/4/1994 and in view of such omission power to requisition under Sec. 3 of Act II of 1948 was taken away with effect from 1/4/1994. However, the life of the said Act II of 1948 was extended till 31/3/1997. Subsequently, the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948), since expired, was further amended on 8/10/1996 and by virtue of Sec. 3 of the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1996 (West Bengal Act XXV of 1996), Sec. 7A was inserted after Sec. 7 of the Principal Act. In view of insertion of Sec. 7A, the said notice/notification under Sec. 4(1a) of the West Bengal Land (Requisition and Acquisition) Act, 1948 dtd. 27/9/1982 in connection with the said proceeding stood lapsed, as no award could be made on or before 31/3/1995 and thereby, the said land reverted back under requisition from acquisition and was under requisition till 31/3/1997. By the said amendment, Sec. 9 of the Principal Act, namely Act I of 1894 was amended by which sub-sec. (3B) was inserted. Furthermore, by such amendment Act after the proviso of Sec. 11A of the Principal Act, a further proviso had been added which was as follows: - "Provided further that in respect of the acquisition of the land referred to in such Sec. (3A) and sub-sec. (3B) of Sec. 9 the award shall be made within a period of two year from the date of issue of public notice under Sec. 9." The respondents, particularly the respondent no. 2 herein, never made any attempt to determine and/or to pay the compensation in question either during the pendency of the said Act II of 1948, since expired or under the said Land Acquisition Act, 1894 which stood repealed with effect from 1/1/2014 and in fact, till date no award had been declared in respect of the said land although the project for which the said land was taken over, was completed long back which was permanent in nature. The Land Acquisition Act, 1894 stood repealed on and from 1/1/2014 and in place and stead of the said 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) came into force on and from 1/1/2014. The respondents ought to have initiated a fresh proceeding under the said Act of 2013 for the purpose of determining the compensation in question in respect of the said land since no award could be made during the lifetime of the Land Acquisition Act, 1894. On the contrary, on or about 5/5/2014 the petitioner was served with notices under sub-sec. (3B) of Sec. 9 of the Land Acquisition (West Bengal Amendment) Act, 1999 dtd. 2/5/2014 issued by the Collector, being the respondent no. 2 herein whereby the petitioner was asked to appear before the said respondent on 21/5/2014 and 22/5/2014, respectively to state his nature of interest in respect of the said land and to submit the particulars of the claim on account of compensation along with the relevant documents in support of the claim. In terms of the aforesaid notices dated on 21/5/2014 and 22/5/2014, respectively the petitioner duly appeared before the Collector being the respondent no. 2 herein when the petitioner requested the said respondent to rescind and/or withdraw the said notices dtd. 2/5/2014 since no notice under sub-Sec. (3B) of Sec. 9 of the Land Acquisition Act, 1894, wrongly mentioned as Land Acquisition (West Bengal Amendment) Act, 1999, could be issued in the year 2014, particularly when the Land Acquisition Act, 1894 stood repealed with effect from 1/1/2014. However, the petitioner produced all the relevant documents, as was asked for, in support of his claim in respect of his title of the said land to the satisfaction of the said respondent. Thereafter, the petitioner made several visits to the Office of the Collector being the respondent no. 5 herein to know the fate of the compensation in question, when ultimately on 20/4/2015, the petitioner was handed over with a Memo bearing No. 2020/LA/EN dtd. 22/10/2014 wherefrom it would be evident that the respondents were taking steps to declare the award in question on the basis of the said notices dtd. 2/5/2014. The proposed attempt on the part of the respondents to declare the award on the basis of the said notices dtd. 2/5/2014 was illegal, arbitrary, mala fide, perverse and tantamounted to colourable exercise of power. The said notices issued under sub-Sec. (3B) of Sec. 9 of the Land Acquisition Act, 1894 wrongly mentioned as Land Acquisition (West Bengal Amendment) Act, 1999 could not be sustained in the eye of law inasmuch as the Land Acquisition Act, 1894 stood already repealed on the date of issuance of the said notices. The said notices dtd. 2/5/2014 were issued without proper application of mind since Land Acquisition Act, 1894 stood repealed on and from 1/1/2014. Being statutory authority, the respondents could not issue any notice in connection with an Act which was not in existence at the time of issuance of such notice. They were duty bound to determine and pay the compensation in question in respect of the said land, upon initiating a fresh proceeding under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013), by withdrawing and/or cancelling the said notices dtd. 2/5/2014.

(3.) Mr. Dey, learned senior counsel representing the State, submitted as follows. A Land Acquisition Case being RA Case No. 44/1977-78 was initiated as per provision of West Bengal Land (Requisition and Acquisition) Act 1948 for the Requiring Body Public Works (Roads) Department, Government of West Bengal for construction of Road and notice under Sec. 3(1) of the said Act was published and subsequently, notice under Sec. 4(1a) of the said Act was published on 27/9/1982. One writ petition being WP Case No. 9355(W) of 2014 was filed by some persons before the Hon'ble High Court at Calcutta and Order was passed directing the Special Land Acquisition Officer, Murshidabad was directed to disburse the amount to the writ petitioner according to their proportionate share by four weeks from the date and notices were issued to the writ petition and they attended the Office of the Special Land Acquisition Officer being person having interest in the acquired plots of land mentioned in the notice. Action of the respondent authority was taken as per order dtd. 12/8/2014 of the Hon'ble Justice Ashoke Kumar Adhikary being WP No. 9355(W)/14 and instant writ petition was similar in nature and involved the same RA Case No. 44/1977-78 and the petitioner was entitled to get award/compensation as per calculation made in RA Case No. 44/1977-78. The award/compensation was declared as per order of the Hon'ble Court being WP Case No. 9355/14 and as such, this writ petition would also get the similar benefit. The admitted position that the possession of the said land was taken over on 28/4/1978 upon an order sub-sec. (1) of Sec. 3 of the said Act II of 1948 and the land was acquired upon publication of a notification under sub-sec. (1a) of Sec. 4 of the West Bengal Land (Requisition and Acquisition) Act, 1948 published in Calcutta Gazette on 27/9/1982. According to the provision of Sec. 24 of the right to fair compensation and transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 was not applicable in West Bengal Land (Requisition and Acquisition) Act, 1948 i.e. Act II of 1948 and it was only applicable in Act No. 1 of 1894. From the above it was very clear that if the acquisition was started from the West Bengal Land ((Requisition and Acquisition) Act 1948 the provisions to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 is not applicable. From the order dtd. 12/8/2014 passed by this Court in WP No. 9355(W)/14 it was also very clear that the Hon'ble Court was pleased to direct to pay the award/compensation to the then writ petitioner. The Hon'ble Division Bench, in MAT 86 of 2016 (The State of West Bengal and Ors. versus Niladri Chatterjee and Ors.), was pleased to observe that the writ petition/respondents were certainly entitled to get the award/compensation alongwith interest 8% per annum to be calculated from the date of taking passions of the land in question till date of disbursement and other.