JAMALUDDIN MOMIN v. STATE OF WEST BENGAL & ORS

The Writ petitioner has prayed for issuance of a writ of mandamus to command the respondents to determine and pay compensation to the petitioner in respect of the lands in question in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the 2013 Act"). Petitioner claims that his father namely Saifuddin alias Saifuddin Munsi was the owner of R.S. Plot Nos. 684 and 1145 corresponding to L.R. Plot Nos. 1400 and 1174 measuring about 0.38 acres and 0.08 acres of land respectively within mouja Joy Krishnapur, J.L. No. 85 under P.S. Samsherganj in the district of Murshidabad. Petitioner further claims that the said Saifuddin died intestate on

16.10.2002 leaving behind him surviving the petitioner and two daughters.

The Collector of District Murshidabad being the 2nd respondents initiated a proceeding under West Bengal Land (Requisition and Acquisition) Act, 1948 (for short "the 1948 Act") being RA 44/72-73 transport / communication / alignment / modification of NH34 necessary due to construction of Farakka Barrage project.

Order under Section 3(1) of the 1948 Act was served upon the father of the petitioner on 12.06.1974. Possession of the land was taken over on

18.06.1974.

Petitioner alleges that no notice under Section 4(1a) of the 1948 Act was published. It is the specific case of the petitioner that notice under Section 9(3A) of Land Acquisition (West Bengal Amendment) Act, 1997 was not served upon the petitioner. Petitioner claims that since the land of the petitioner has been utilised for construction of road, the respondent authorities should be directed to pay compensation in terms of the 2013 Act.

Mr. Pan learned advocate appearing for the petitioner contended that since no notice under Section 4(1a) of the 1948 Act was published, the Collector being the 2nd respondent was under a statutory obligation to serve a notice under Section 9(3A) of the Land Acquisition (West Bengal Amendment) Act, 1997 (for short "W.B. Amendment Act") during the life time of the Land Acquisition Act, 1894 (for short "the 1894 Act") for payment of compensation and regularising the possession of the lands taken over in exercise of the power of requisition under the 1948 Act. He further contended that since no steps were taken to revalidate the proceedings initiated under the 1948 act during the life time of the 1894 Act, the entire proceedings stood lapsed. He submitted that the State is now illegally and forcibly enjoying the possession of land in colourable exercise of power. Mr. Pan concluded by submitting that the competent authority of the State should be directed to determine and pay compensation to the petitioner in terms of the 2013 Act. Mr. Pan placed reliance upon a decision in the case of State of West Bengal & Others vs. Aziman Bibi and Others reported at (2016) 15 SCC 710 in support of his contention that since the land owned by the petitioner has already been utilised, State should be directed to take steps for initiating a fresh proceeding for acquisition. Mr. Pan also placed reliance on the decision in the case of The State of West Bengal & Ors. vs. Ganesh Samanta reported at (2014) 4 WBLR (Cal) 996 in support of his contention that fresh proceeding under the 2013 Act should be initiated.

Per contra, Mr. Chandi Charan De, learned Additional Government Pleader submitted that the provisions of the 2013 Act cannot be made applicable in a proceeding for acquisition initiated under the 1948 Act. In support of such contention he placed reliance upon a decision of the Hon’ble Supreme Court in the case of Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation vs. Mahesh and Others reported at (2022) 2 SCC 772. He contended that notice under Section 7(2A) of the 1948 Act was served upon the father of the petitioner and 80% of the total compensation was paid to the father of the petitioner. He further contended that notice under Section 9(3A) of the W.B. Amendment Act was issued and the petitioner is entitled to get market value of the land on the basis of approved rate as on the date of notice under Section 9(3A). He placed reliance upon the decision of the Hon’ble Division Bench in MAT 86 of 2016 in the case of The State of West Bengal & Ors. vs. Niladri Chatterjee & Ors. delivered on

23.08.2017 in support of his contention that the petitioner is entitled to the compensation as calculated by the authorities together with interest at the rate of 8% per annum from the date of taking possession till date of payment.

Heard the learned advocates for the parties and perused the materials placed.

Record reveals that a proceeding being R.A. Case No. 44/72-73 was initiated under the 1948 Act and an order under Section 3(1) of the said Act was issued for requisition of lands for construction of realignment / modification of NH34 necessary for construction of Farakka Barrage project. Possession of the land was taken and delivered to the Requiring Body (R.B) on 18.06.1974.

Admittedly no notice under Section 4(1a) of the 1948 Act was published in the Calcutta Gazette.

At this stage it would be beneficial to recapitulate the relevant provision of the 1948 Act which is extracted hereinafter. "4. Acquisition of land.- land has been requisitioned under section 3, the State Government may use or deal with such land for any of the purposes referred to in sub- section (1) of section 3 as may appear to it to be expedient. (1) Where any (1a) The State Government may acquire any land requisitioned under section 3 by publishing a notice in the Official Gazette that such land is required for a public purpose referred to in sub-section (1) of section 3. (2) Where a notice as aforesaid is published in the Official Gazette, the requisitioned land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the State Government free from all incumbrances and the period of requisition of such land shall end. "

The 1948 Act was amended by the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1994 which was published in the Calcutta Gazette on 31.03.1994. By virtue of the said Amendment Act, Section 3 of the 1948 Act was omitted. Therefore, the power of the State to requisition any land was taken away by virtue of the Amendment Act, 1994 with effect from 01.04.1994. The validity of the 1948 Act was also extended till

31.03.1997 by virtue of the said Amendment Act.

The 1894 Act was also amended by W.B. Act VII of 1997 in its application to the State of West Bengal. By virtue of such amendment, sub-sections (3A) and (3B) were incorporated after Section 9(3) of the 1894 Act.

Sub-sections (3A) and (3B) of Section 9 of the 1894 Act as incorporated by way of amendment is extracted hereinafter. "(3-A) The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to in this section as the said Act), as re-enacted by the West Bengal Land (Requisition and Acquisition) Re-enacting Act, 1977, and, in every such case, the provisions of sub-section (1) of section 4, section 5, section 5-A, section 6, section 7 and section 8 of this Act shall be deemed to have been complied with: Provided that the date of notice under this sub-section shall be the date of reference for the purpose of determining the value of such land under this Act: Provided further that when the Collector has made an award under section 11 in respect of any such land, such land shall, upon such award, vest absolutely from all encumbrances. the Government, (3-B) The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the said Act, and notice for acquisition of such land has also been published under sub-section (1-a) of section 4 of the said Act, and, in every such case, the provisions of section 4, section 5, section 5-A, section 6, section 7, section 8 and section 16 of this Act shall be deemed to have been complied with: Provided that the date of publication of notice under sub-section (1- a) of section 4 of the said Act shall be the date of reference for the purpose of determining the value of such land under this Act: Provided further that in every such case, the Collector shall make an award under section 11 in respect of such land only for the purpose of payment of due compensation to the persons interested in such land has, upon the Collector taking possession thereof, already vested absolutely in the Government, free from all encumbrances. "

Section 9(3B) comes into play where notice under Section 4(1a) of the 1948 Act has been issued. Since admittedly notice under Section 4(1a) has not been issued in the case on hand, Section 9(3B) do not have any manner of application.

Section 9(3A) states that in a case where possession has already been taken on requisition under Section 3 of the 1948 Act, the provisions of Sections 4(1), 5, 5A, 6, 7 and 8 of the 1894 Act shall be deemed to have been complied with.

Proviso thereto states that the date of notice under Section 9(3A) shall be the date of reference for the purpose of determining the value of such land under the 1894 Act.

Second proviso states that when the Collector has made an award under Section 11 in respect of any such land, shall land, shall upon such award, vest absolutely in the Government free from all encumbrances.

In the case on hand, possession of the land was taken under Section 3 of the 1948 Act. Such possession was taken on requisition. In the absence of any notice being published under Section 4(1a) of the 1948 Act, the question of vesting of the land as contemplated under Section 4(2) of the said Act does not arise.

1948 Act, however, stood expired due to efflux of time after 31.03.1997. With the expiry of the 1948 Act, the requisition also ended and the State was obliged to restore possession of such lands to the land owner/ petitioner. The W.B. Amendment Act, however, empowers the State to continue with possession of such lands by resorting to Section 9(3A) of the 1894 Act.

The effect of the Land Acquisition (West Bengal Amendment) Act, 1997 fell for consideration in Sabitri Devi vs. State of W.B. reported at (2002) 3 CHN 108 wherein it was held that revalidation has the effect of reviving the requisition for acquisition. In paragraph 41 of the said report it has been held that - "41. The revalidation has the effect of reviving the requisition for acquisition. As such it is only on the issue of notices under sub- section (3A) or (3B) of section 9 of 1894 Act, the revalidation takes, effect. The requisition having ended on the effacement of the statute the property is to be restored to the owner. It could also be treated to have been ended for acquisition where notices under section 4(1a) of 1948 Act stood lapsed before 31st March, 1997. By reason of 1997 Amendment in West Bengal of 1894 Act a fiction is created. By reason of such fiction the requisition would stand converted into acquisition with the issue of notice under section 9(3A) of the 1894 Act, as amended in 1997 in West Bengal. As soon section 9(3A) is resorted to, the possession, if continued after requisition and not restored, shall be deemed to be a possession revalidated under the Land Acquisition Act which then would be a possession for acquisition on the issue of the notification/notice under section 9(3A).........................................."

In case the State resorts to Section 9(3A), the possession of lands taken on requisition and not yet restored to the land owners shall be deemed to be a possession revalidated under the 1894 Act. Such possession would then be a possession for acquisition upon issuance of notice under Section 9(3A) of the 1894 Act.

It is evident from the Memo dated 10.08.2011 issued by the Collector, Murshidabad to the Principal Secretary to the Government of West Bengal, Land and Land Reforms Department which has been annexed to the affidavit-in-opposition of the State that notice under Section 9(3A) has not been served to the concerned parties as the fund was not available. The affidavit was affirmed sometimes in the month of September, 2022.

Section 9(3A) of the 1894 Act casts an obligation upon the State to serve notice on all such persons known or believed to be interested in any land or to be entitled to act for the persons so interested in a case where possession of the land was taken under Section 3 of the 1948 Act to revive the requisition for acquisition.

In view of the admitted fact that notice under Section 9(3A) has not been served upon the concerned person, this Court is of the considered view that the proceedings initiated under 1948 Act stood lapsed with the effacement of the said statute. This Court accordingly holds that the authorities of the State are possessing the lands in question illegally and forcibly without any authority of law.

In the case on hand, possession of the land was taken over in exercise of the power of requisition under a temporary statute. Such statute was valid till 31.3.1997. Such land has been utilised for a permanent purpose without taking any steps to acquire the same. The power to acquire lands falls within the purview of eminent domain of the State. Article 300A of the Constitution of India states that no person can be deprived of his property save by authority of law. The land acquisition laws provide a complete mechanism for deprivation of property of a person in accordance with law. Such laws provide for payment of fair compensation to the land losers. Alleged payment of 80% of the estimated land value, by no stretch of imagination, can be construed to be a fair compensation in accordance with the relevant statute that provides for acquisition of land. Therefore, utilisation of property without payment of fair compensation to the land owner(s) is in violation of Article 300A of the Constitution of India. Such act amounts to colourable exercise of power by the State and the State is duty bound to pay compensation in accordance with law. Since the land owner is deprived of his property, State is obliged to pay fair compensation to such land owner in accordance with law.

It is not in dispute that the property in question has been utilised for the purpose of construction of road. State is also not in a position to restore the land to the land owners. The proceedings under the 1948 Act has already been held to have lapsed. The 1894 Act has since been replaced and the 2013 Act has come into force with effect from 01.01.2014.

In Aziman Bibi (supra), the Hon’ble Supreme Court after noting that the land owned by the writ petitioners has been utilised pursuant to the initial declaration and also noticing that the acquisition proceeding stood lapsed, directed the State to take steps for notifying the acquisition once again and determine compensation in accordance with law.

In Ganesh Samanta (supra), the notice under Section 4(1a) stood lapsed. The Hon’ble Division Bench after noticing the Special Bench decision of this Court in State of West Bengal vs. Sabita Mondal reported at (2011) 3 CHN (Cal) 555 held that the State Government could have completed the acquisition proceeding by applying the provision of Section 9(3A) of the Land Acquisition Act. However, in view of the subsequent development in Land Acquisition laws with the enactment of the 2013 Act, and particularly in view of Section 24(1)(a) of the said Act, the Hon’ble Division Bench directed the State to complete the acquisition proceeding by following the relevant provisions of the 2013 Act.

As the State has utilised the lands in question and is not in a position to restore possession of the lands to the petitioner/ land owner and also that the proceeding under the 1948 Act stood lapsed, the proposition laid down in Aziman Bibi (supra), and Ganesh Samanta (supra) shall squarely apply to the case on hand. This Court, therefore, holds that the State respondents should be directed to initiate a proceeding for acquisition afresh in accordance with the 2013 Act and to complete the same within a stipulated time.

In Mahesh (supra), it has been held that Clause (a) to Section 24(1) of the 2013 Act would apply only if the period for making of an award had not ended and time was available on 01.01.2014. The said decision being distinguishable on facts cannot be applicable to the case on hand.

The decision in the case of Niladri Chatterjee (supra) directing payment of interest was on the basis of an admission made by one of the parties. In view thereof, the said decision cannot come to the aid of the State.

Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities. (Hiranmay Bhattacharyya, J.) (P.A.-Sanchita, Rinki)