Calcutta High Court (Appellete Side)
Bhim Sen Mondal vs The Competent Authority Under The N.H. ... on 16 January, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
16.01.2020.
Item no. 11.
Court No. 14ap W.P. No. 12379 (W) of 2015 In W.P. No. 23993 (W) of 2014 Bhim Sen Mondal Versus The Competent Authority under the N.H. Act, 1956 & A.D.M. (L.A.), Burdwan & Ors.
Mr. Amit Pan, Mr. Arijit Dey.
..For the petitioner.
Mr. Chandi Charan De, ld. Addl. Govt. Pleader, Mr. Soumitra Bandyopadhyay, Mr. Anirban Sarkar.
...For the State.
Mr. Raja Basu Chowdhury, Mr. Sayantan Bose, Mrs. Anyapurba Banerjee, ...For the Asansol Durgapur Development Authority.
Mr. Dipankar Das.
...For the N.H.A.I. The writ petitioner is aggrieved by a notice dated 3rd March, 2015 issued by the National Highways Authority identifying him as a person interested in Dag No. 3120 under J.L. No. 58, Mouza - Bamunara comprising in about 0.83 decimal of land. The total compensation was proposed to the writ petitioner was Rs.1,02,166/-. The same admittedly represents the structure on the land and not the land itself. The said notice was issued pursuant to acquisition proceedings instituted under the National Highways Act, 1956. The brief facts relating to the petitioner's claim are that the petitioner purchased the land in the year 2005 from one Smt. Mungli Majhi, Sunil Majhi and Smt. Lata Majhi by a registered indenture. His name was originally entered into the records of the B.L.&L.R.O., Burdwan but subsequently deleted. The name of Asansol Durgapur Development Authority had been included in place of the petitioner and proceedings have been initiated challenging the refusal by the B.L.& L.R.O., Burdwan to record the name of the petitioner in his records. Such issue is now pending before the Land Reforms and Tenancy Tribunal constituted under the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act of 1997.
The State and the Asansol Durgapur Development Authority have used affidavits as also the National Highways Authority.
The State would contend before this Court orally as well as by way of affidavit that the said land comprised in an acquisition proceeding originally initiated under the Land Acquisition Act, 1894 being L.A. Case No. 1R/1965-1966. The said plot number is covered under Mouza - Bamunara, J.L. No. 58, Police Station - Kanksha, District - Burdwan between C.S. Plot No. 3117 to 3152 under the aforesaid acquisition proceedings.
The State would further contend that the compensation has been paid to the recorded land owners thereat being one Kali Sankar Roy, son of Bhola Nath Roy of Raniganj and compensation amount of Rs.110/- has been received vide Cheque No. 257194 dated 29th March, 1976.
Towards the fulfillment of the provisions as regards possession, the State would contend and rely upon a Certificate of Possession dated 11th June, 1965 signed by the Head Surveyor, one Paresh Chandra Banik, of the Office of the Special Land Acquisition Office and received by the Durgapur Development Authority. The said Certificate of Possession is stated to be under Section 17(1) of the Land Acquisition Act of 1894.
Counsel for the petitioner would submit that the land in question cannot vest in the State unless the State is able to demonstrate suitable possession having been taken in terms of Section 16 or proceedings taken under Section 17 of the said Act and such Certificate of Possession must indicate that the State has taken possession from the recorded land owners. The Certificate of Possession dated 11th June, 1965 relied upon by the Counsel for the State, according to the petitioner, cannot amount to a certificate in terms of Section 16 or 17 of the Land Acquisition Act of 1894.
This Court has carefully considered the pleadings and documents produced and filed by the respective parties. The only question to be determined is as to whether the possession has been lawfully taken over by the State and as to whether the land has vested in the State to be delivered to the Durgapur Development Authority as has been contended by the State. It is stated that at the at the time when the acquisition was proposed by the National Highway Authority in the year 2011, pursuant whereof the impugned notices has been issued to the petitioner, there are discussions and notings in a meeting of the Board of the Asansol Durgapur Development Authority to the effect that the land has not been acquired in the first place and fresh acquisition proceeding may be warranted, inter alia, in respect of the petitioner's land.
He further points out to the affidavit filed by the Asansol Durgapur Development Authority which discloses the particulars of the land as recorded in the proceeding initiated by the State at the instance of the National Highway Authority under the National Highways Authority Act, 1956. It appears therefrom that the land has been described as private, non-agricultural and yet recorded as standing in the name of the Asansol Durgapur Development Authority.
The same is sought to be explained by the Counsel for the National Highway Authority of India by indicating that it is a body corporate with the common seal constituted under the West Bengal Town and Country Planning Act, 1979. The expression private must, according to the Asansol Durgapur Development Authority, other than the State and only the Asansol Durgapur Development Authority.
This Court is of the view that the notings in the resolution of the Board of Asansol Durgapur Development Authority cannot by themselves set at naught the acquisition proceeding that has been carried by the State lawfully and in terms of the Act 1 of 1894.
Coming back to the principal question to be addressed, i.e. whether the possession has been lawfully taken by the State under Section 16 or 17 of the Land Acquisition Act, this Court is not satisfied that the Certificate of Possession dated 11th June, 1965 relied upon by the State by itself will constitute possession.
There is apparent contradiction in the certificate. While on one hand it is stated that the possession is being taken under Section 17 of 1894 Act, the text of the Certificate indicates that it is a document showing possession being handed over by the Surveyor on behalf of the State to the Durgapur Development Authority, which is the predecessor of the Asansol Durgapur Development Authority.
Counsel for the State, however, relies upon two judgments of the Hon'ble Supreme Court. The first of which is the case of Balmokand Khatri Educational and Industrial Trust, Amritsar - Vs. - State of Punjab & Ors. reported in (1996) 4 SCC 212. At paragraph 4 of the said judgment, the Hon'ble Supreme Court of India has laid down as follows:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."
The State further relies upon a decision of the Supreme Court in the case of Balwant Narayan Bhagde - Vs.- M.D. Bhagwat, reported in (1976) 1 SCC 700 particularly paragraphs 22 and 25 thereof and the same are set out hereinbelow.
"22. It would thus be seen that a symbolical or formal delivery of possession as understood in law has the effect of dispossessing the judgment-debtor from his right title or interest in the property. It does not dispossess the person in actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction-sale. A symbolical or formal delivery of possession against the judgment-debtor is giving of actual possession of the property in the eye of law and has the effect of dispossessing him although as a matter of fact he may have succeeded in resuming back possession as before shortly after dispossession.
23. .....
24. ......
25. When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possesssion is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government."
It follows from the above two decisions that the Land Acquisition Act is silent with regard to the mode and manner of taking possession. Possession can be taken, therefore, as per the dicta of the Hon'ble Supreme Court, either by beat of drum or a public announcement or a notice being affixed by the Collector, etc. There is averment in the affidavit-in-opposition filed by the State that the possession was taken of the land and subsequently handed over to the Asansol Durgapur Development Authority and/or its predecessor-in-interest.
The same would have to be accepted by this Court since the only person, who could have raised objection to the manner and mode of possession taken, was the original recorded owner, namely, Kali Sankar Roy. Kali Sankar Roy and/or his successors have not participated in the instant proceeding.
The petitioner having come into the picture in the year 2005, cannot challenge steps taken by the State against the said Kali Sankar Roy or the property in the year 1965 or in 1976 when payment was received towards compensation by the said Kali Sankar Roy from the State.
In those circumstances, this Court accepts that the possession has, in fact, been taken and the land has vested in favour of the State and was lying transferred in the name of Asansol Durgapur Development Authority. The argument of the petitioner that once the land is standing in the name of the State or its instrumentality, the question of any further acquisition thereof did not arise, can be addressed in the following manner. Admittedly the land in question is standing in the name of Asansol Durgapur Development Authority as has been held hereinabove after a lawful acquisition proceeding under the 1894 Act. The National Highway Authority of India would obviously pay compensation to the Asansol Durgapur Development Authority for having acquired the land in question.
The National Highway Authority of India and the State could easily have refused any compensation whatsoever to the petitioner but have been rather generous in atleast proposing compensation for the structures claimed to have been erected by the petitioner of land not belonging to him. The same, thus, cannot be interpreted to negate the original acquisition of land by the State and the title of the Asansol Durgapur Development Authority.
The impugned notices are not interfered with and it is held that the land was lawfully standing in the name of Asansol Durgapur Development Authority after having been lawfully acquired and having been vested in the State.
In view of the above, the instant writ petitions are hereby dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)