SUNIL DEY Vs. AJOY NANDI MAJUMDAR

JUDGEMENT

(1.) Present is an appeal filed by one Sunil Dey and Sukumar Dey against the judgment delivered by the learned Single Judge of this Court. These two appellants were not parties to the writ petition which was allowed by the learned Single Judge. They, therefore, sought the leave of this Court for filing the appeal and on such leave being granted to them they have preferred the appeal and challenged the judgment.

(2.) That writ petition was filed by one Ajoy Nandi Majumdar wherein he had challenged the land acquisition proceeding started under Sections 4 and 6 of the West Bengal Land (Development & Planning) Act, 1948 (hereinafter referred to as 1948 Act) in particular he challenged the notification dated 24th February, 1982 and the notification under Section 6 of the 1948 Act dated 31st December, 1991. The claim made before the Court was that the petitioner was an 'interested person' in respect of Plot No. 223 of C. S. Dag No, 183 having total area of 1.067 acres as he had purchased a portion of land from this plot. The petitioner pointed out that the land was purchased by him from one Amiya Kumar Dey way back in the year 1977 by a sale deed and that his name was mutated in the records of Kolkata Municipal Corporation (KMC). It was pointed out by the writ petitioner that the land purchased was 3 cottah, 8 chittacks and 15 sft. We find from the writ petition that the deed of sale is studiously not mentioned in the writ petition, all that is mentioned is that by letter No.7-7-D/937/77-78 dated 21st March, 1978 the aforementioned plot was mutated in the name of the petitioner. We do not see any copy of the sale deed having been filed by the petitioner along with the writ petition, not do we find any mutation made in his favour in the Land Revenue Department. Be that as it may, the writ petitioner further claimed that he was a refugee from East Bengal belonging to Sylhet District and after purchasing the land in 1977 he could not arrange sufficient fund for the construction of the building and therefore he applied for the sanction to construct a building on the aforementioned plot which sanction was granted by the KMC by letter dated 12th April, 1989. It is then further claimed that when the petitioner started cleaning the vacant plot of land in order to construct the building, the local colony committee suddenly obstructed the work saying that the said plot was under the acquisition proceeding by the State of West Bengal. Thereafter, the writ petitioner knocked at the doors of various departments of the State of West Bengal including Kolkata Metropolitan Development Authority (KMDA) and Kolkata Improvement Trust (KIT) and caused searches to be made in the records of these departments and was informed that there was no such purported acquisition proceeding in respect of the said land. He, therefore, prayed a necessary clearance from KMDA and KIT for which he made necessary applications on 19th June, 1989. It is then claimed that the petitioner further caused necessary searches in the offices of respondent Nos.2 and 3, i.e., 1st Land Acquisition Collector at 5, Bankshall Road, Calcutta and Land Acquisition Collector at New Secretariat Building at 1, K. S. Roy Road, Calcutta as to whether any such land acquisition proceedings were in fact held, but in spite of his best efforts and in spite of his approach to the respondent Nos.2 and 3, he was kept in complete dark about the proceeding. Ultimately, he claims in Paragraph-11 of the writ petition that the respondent No.2 by his letter dated 14th March. 1990 informed the writ petitioner that the C. S. Plot No.183 of Mouza-Arkapur was notified for acquisition in LDP Case No. 1/74 under the 1948 Act. He was further informed that Plot No.223 appertaining to C. S. Dag No. 183 is included in the acquisition proceeding. However, the respondent No.2 did not specify whether such plot of land belonging to the writ petitioner was actually notified for acquisition. The writ petitioner then claimed that after coming to know about the land acquisition proceeding he realised that no notice for the acquisition was served upon him and. therefore, he made various representations in July 1990, February, 1991 and July 1992 and pointed out various illegalities in the matter of acquisition. He then says in his writ petition that respondent No.5, Refugee Rehabilitation Department deliberately sat tight over the whole issue and after great difficulty the petitioner obtained the copies of the notifications under Sections 4 and 6 of the 1948 Act, whereunder his plot in C. S. Plot No. 183 having an area of 1.067 acres were covered. He, therefore, says that all these notifications are illegal as he was never noticed before issuing such acquisition notices and had lost the opportunity. He further says that the writ petitioner himself being a refugee his land could not have been taken for the rehabilitation of the refugees meaning thereby he could not have been deprived of his land which he had purchased for a valuable consideration. There are various other objections raised to the proceeding and ultimately the petitioner filed a writ petition being C. O. No. 16870 (W) of 1992, inter alia, claiming quashing of the notifications under Sections 4 and 6 of the 1948 Act (being Annexure - 'G' and 'H' to the writ petition).

(3.) The learned Single Judge has allowed this writ petition. However, it is apparent that the learned Single Judge did not have the advantage of being assisted by the State Government Counsel. The learned Single Judge came to the conclusion that since the land was mutated in the name of the petitioner in the records of KMC and since the land was a part of the Corporation area the State Government could not have acquired the land under the provisions of the Land Acquisition Act, 1894. He has made the same comment regarding the 1948 Act also. He has also recorded a finding that the release of this land by the KIT was informed for the purpose of its applicability and once the KIT was informed that the land was not under the scheme of alignment of the Trust, it could not be said that the land was under the control of the Land Acquisition Collector. The learned Single Judge also recorded a finding that since the petitioner himself was an immigrant there was no question of their being any public purpose and he could not have been deprived of the land and there would be no applicability of the notification to the case since the writ petitioner was himself a refugee. The learned Single Judge ultimately held: -