Saisuddin Sk. v. State of West Bengal

Judgment

#1. The petitioner has prayed for issuance of a mandamus to command the respondents to initiate a fresh proceeding for acquisition of lands in question under the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 (for short “2013 Act”) 2 and to pay compensation on account of damages and occupational charges with effect from 1st April, 1997 till the date of initiation of the proceedings under 2013 Act.

#2. The petitioner claims to be the owner of several plots of land situated within Mouza-Basudevpur, JL No.81 under Police Station- Samsherganj in the district of Murshidabad which were required for the purpose of construction re-alignment/modification of National Highway No.34. A proceeding bearing case no. RA 43/72- 73 under the West Bengal Land (Requisition and Acquisition) Act 1948 (for short “1948 Act) was initiated. A notice under Section 3(1) of the 1948 Act was served on or about January 20, 1975. A notification under Sub-section 1(a) of Section 4 of the 1948 Act was published in the Calcutta Gazette (Extraordinary) dated April 14, 1994. The petitioner alleges that no award was passed in accordance with the provisions of the 1948 Act.

#3. Mr. Pan, learned advocate appearing for the petitioner submits that the notice under Section 4(1a) of the 1948 Act stood lapsed on April 13, 1997 in view of Section 7A of the 1948 Act. He submits that no notice under Section 9(3B) of the Land Acquisition (West Bengal Amendment) Act 1997 was issued in order to revive the notice under Section 4(1a) of the 1948 Act in accordance with law. He submits in view thereof the proceeding stood lapsed. He 3 further submits that the property of the petitioner has been utilized for the public purpose and, therefore, the State should be directed to initiate a fresh proceeding for acquisition under the 2013 Act since in the meantime the Land Acquisition Act 1894 (for short “1894 Act”) stood repealed.

#4. Mr. Bandopadhyay, learned senior government advocate submits that the proceeding was revived by issuing a notice under Section 9(3B) of the 1894 Act. He submits that possession of the land in question was taken and an amount estimated at 80% of the land value has also been paid to the petitioner. Therefore, the petitioner is entitled to only the balance 20% of the land value. He further submits that the notice under Section 4(1a) of the 1948 Act was issued sometimes in the year 1994 and the writ petition has been filed only on March 24, 2015. He submits that the writ petition is liable to be dismissed on the ground of delay and latches. In support of such contention Mr. Bandopadhyay places reliance upon a decision of the Hon’ble Supreme Court in the case of New Delhi Municipal Council vs. Pan Singh & Ors. reported in 2007(9) SCC 278 : Shiv Dass vs. Union of India & Ors. reported at 2007(9) SCC 274 and the judgment and order dated August 22, 2022 passed by the Hon’ble Supreme Court in Civil Appeal 4 No.5439 of 2022 in the case of Union of India vs. Subhash Chander Sehgal & Ors.

#5. Learned advocate appearing for NHAI refers to the report in the form of an affidavit and submits that in spite of a request made by the NHAI to forward a communication with regard to the revised estimate from the end of PWD nothing was forwarded to NHAI by the PWD.

#6. In reply Mr. Pan, learned Advocate submits that delay and latches cannot be raised in a case of continuing cause of action or if the circumstances shocked the judicial conscience of the Court. In support of such contention Mr. Pan places reliance upon a decision of the Hon’ble Supreme Court in the case of Vidya Devi vs. State of Himachal Pradesh & Ors. reported in 2020(2) SCC

#7. Heard the learned advocates for the parties and perused the material placed.

#8. The possession of the land in question was taken on 27.01.1975 in exercise of powers under Section 3(1) of the 1948 Act. Thereafter, the notification under Section 4(1)(a) of the 1948 Act was 5 published in the Calcutta Gazette Extraordinary dated 14.04.1994. Section 7(A) of the 1948 Act states that the Collector shall make an award under Section 2 of Section 2 even three years from the date of publication of the notice in the Official Gazette under Section 4(1)(a) and if such award is not made within the period as aforesaid, the said notice shall lapse.

#9. It is not in dispute that no award under Section 7(2) of the 1948 Act was made within a period of three years from the date of publication of the notice under Section 4(1)(a) of the 1948 Act that is on or before 13.04.1997.

#10. Though it has been stated in the affidavit-in-opposition that R.A. proceedings was switched over under the 1894 Act by issuing a notice under Section 9(3)(b) of the 1894 Act as amended by Amendment Act, 1997, the date of service of notice under Section 9(3B) of the 1894 Act has not been specifically said in the affidavit. That apart, it appears from the document annexed to the affidavit- in-opposition which is annexed as R/4 which is the rate report for filing payment of compensation in respect of the L.A. proceedings initiated under the 1948 Act, it is evident that till 04.07.2011, no such notice under Section 9(3B) was served upon the petitioner. 6

#11. It has further been stated in the said affidavit by the State that since the requiring body has not placed the fund before the Government, notice under Section 9(3B) could not be served upon the land losers.

#12. In view of the specific admission in the affidavit, that no notice under Section 9(3B) of the 1894 Act as amended by the Amendment Act, 1997 has been served, this Court holds that the proceeding for acquisition initiated by issuing notice under Section 4(1)(a) of 1948 Act was not carried forward under the 1894 Act.

#13. The possession of the land in question which was taken over was in exercise of powers of requisition. Since the power of requisition is no longer available with the expiry of the 1948 Act by efflux of time and also that the proceedings for acquisition initiated under the 1948 Act was not carried further by invoking the provisions under Section 9(3A) or 9(3B) of the 1894 Act, this Court is of the considered view that the State cannot retain its possession over the lands in question without paying compensation to the petitioner in accordance with law.

#14. It is also not in dispute that in the meantime, the 1894 Act stood repealed and the 2013 Act came into force with effect from 7

01.01.2014. The property of the petitioner has been utilized by the State and the State is not in a possession to return the said land to the land owners. This Court is, therefore, of the considered view that the State should be directed to initiate a fresh proceedings for acquisition in accordance with the relevant statute. At this stage, this Court has to deal with the objection raised by Mr. Bandopadhyay that the writ petition is liable to be dismissed only on the ground of delay and latches.

#15. In New Delhi Municipal Council (supra), the respondents therein approached the learned writ Court praying for issuance of a writ, the order or directions to grant the petitioners the benefits of the revised pay scale. The said decision relates to a service dispute.

#16. In Vidya Devi (supra), the Hon'ble Supreme Court held that the delay and latches cannot be raised in a case of continuing cause of action or if the circumstances shock the judicial conscience of the Court. It was further held that the condonation of delay is a matter of judicial discretion which must be exercised judiciously and reasonably. It was further held that there is no period of limitation prescribed for the Courts to exercise their constitutional jurisdiction to do substantial justice. The Hon'ble Supreme Court further held that where the demand for justice is so compelling, a 8 constitutional court would exercise its jurisdiction with a view to promote justice and not defeat it.

#17. In Vidya Devi (supra), the Hon'ble Supreme Court took note of the decision in the case of Tukaram Kana Joshi vs. M.I.D.C. reported at (2013) 1 SCC 353 wherein it was observed that there are authorities which state that delay and latches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence and grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories for similar cases etc. It was further observed that in Tukaram Kana Joshi (supra) the Hon’ble Supreme Court after noting the aforesaid fact observed that functionaries of the State which took over the possession of the land belonging to the appellants without any sanction of law and also that the appellants had asked repeatedly for grant of benefit of compensation, the State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.

#18. New Delhi Municipal Council (supra) relates to a service matter and in view of the aforesaid discussion, this Court is of the considered view that the same cannot come to the aid of the State. 9

#19. Shiv Dass (supra) relates to a case of pension. The Hon'ble Supreme Court observed that in case of pension, the cause of action actually continues from month to month and in view thereof, the Hon'ble Supreme Court observed that if the petition is filed beyond the reasonable period, the Court would restrict the relief which would be granted to a reasonable period of about three years. The said decision arises out of a service matter and being distinguishable on facts cannot also come to the aid to the State.

#20. In Subhas Chander Sehgal (supra) the issue was whether the acquisition proceedings with respect to the subject land have lapsed in terms of Section 24(2) of the 2013 Act. The said issue is not germane in this writ petition and, therefore, the same cannot also come to the aid of the State.

#21. Since the property of the petitioner has been utilized without paying compensation to the land owners, this Court is of the considered view that the action of the State shocks the judicial conscience of the Court and, therefore, this Court was inclined to entertain and decide the instant writ petition. 10

#22. Since the properties of the landowner have been utilized, to the mind of this Court the State should initiate an appropriate proceeding for acquisition in accordance with law, to determine compensation and pay the same to the petitioner.

#23. For all the reasons as aforesaid, the instant writ petition stands allowed. The Collector being the 5th respondent herein is directed to initiate a fresh proceeding for acquisition of the lands in question in accordance with the provisions of the 2013 Act and to conclude the same by paying compensation to the petitioner, if he is entitled to, or to any other interested person. The entire exercise shall be completed as expeditiously as possible but positively within a period of four months from the date of receipt of the server copy of this order.

#24. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the parties, upon compliance of all formalities. (HIRANMAY BHATTACHARYYA, J.) 11