Calcutta High Court (Appellete Side)
Gita Rani Mondal & Ors vs The State Of West Bengal & Ors on 12 December, 2014
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Sahidullah Munshi.
C.A.N. 8561 of 2012
with
W.P. 15591(W) of 2003
Gita Rani Mondal & Ors.
...Petitioners
- Versus -
The State of West Bengal & Ors.
... Respondents
Mr. P.B. Sahu,
Mr. Sudhakar Biswas,
Mr. Prasanta Bishal,
... for the petitioner
Mr. Rammohan Pal
... for the State
Mr. Ashoke Banerjee,
Mr. Debabrata Banerjee,
Mr. Samir Kumar Chakraborty
... for the WBHIDCO
Heard on : 06.01.2014, 11.11.2014, 17.11.2014, 19.11.2014.
Judgment on : December 12, 2014.
Sahidullah Munshi, J.:
This is an application for amendment filed in connection with W.P.15591(W) of 2003. The writ petition was affirmed on 26th of September, 2003. In the writ petition the petitioner made the following prayers :
A. A Writ of and/or in the nature of - Mandamus, commanding the Respondents, their men, agents and subordinates why an appropriate direction should not be given upon the State Government in case the said land was not properly acquired in accordance with law within a reasonable time, the land of the petitioners should not be declared free from acquisition and the petitioners may start the construction of the building for their dwelling purpose.
B. A Writ of and/or in the nature of - Mandamus, commanding the Respondents, their men, agents and subordinates why the impugned notice and/or notification issued by the State Authorities for acquisition of the petitioners without taking recourse to the provisions of law in respect of the petitioners' lands should not be quashed, cancelled and set aside.
C. A Writ of and/or in the nature of - Certiorari, calling upon the Respondents, their men, agents and subordinates to transmit and certify the records of the proceedings to this Hon'ble Court so that the conscionable justice may be done by quashing the impugned notice and/or alleged notification for acquisition of the petitioners' lands;
D. Rule Nisi in terms of the prayers A to C as above;
E. Costs of the petition and incidental to this petition; F. Any other appropriate writ or writs, order or orders, direction or directions;
G. An ad interim order of injunction restraining the Respondents, their men, agents and subordinates and each one of them from disturbing in any manner with the peaceful possession of the petitioners in respect of the lands as mentioned in paragraphs 2 to 28 to this petition, and further restraining the respondents, their men, agents and subordinates and associates from taking the said lands by the State authority without taking recourse to the provisions of law, till the disposal of the Rule.
Out of the above-mentioned prayers by virtue of prayer B the writ petitioner has prayed for a writ of mandamus commanding the respondents, their men, agents and subordinates as to why impugned notice and/or notification issued by the State authorities for acquisition of the writ petitioner's land without taking recourse to the provisions of law should not be quashed, cancelled and/or set aside. Number of petitioners have joined together and challenged the acquisition proceeding in respect of various lands description of which has been mentioned in the writ petition. In the writ proceeding affidavits have been filed by the respondents way back in 2003. From the record it appears that an affidavit-in- opposition was affirmed on 17th November, 2003 by Kajal De Biswas, Additional Land Acquisition Officer, on behalf of respondent Nos.1 to 4. By the said affidavit-in-opposition the said respondents dealt with the entire case of the petitioner and the acquisition in respect of the lands. Annexures to the said affidavit disclose notifications in connection with the acquisition proceeding. One of the notifications being annexed as Annexure R-1 dated 11th July, 2002 shows that the said notification was issued under Section 4 of the Act (I) of 1894 (Land Acquisition Act, 1894) and it also mentions that the said notification has been issued in exercise of the powers conferred by sub-Section (4) of Section 17 of the Land Acquisition Act, 1894. The Governor was pleased to direct that the provisions of Section 5A of the Act shall not apply to the lands as described in the Schedule to the said notification to which in the opinion of the Governor, the provisions of sub-Section (1) of Section 17 of the said Act would be applicable. Under Section 17 special power is being exercised by the Government in case of urgency. The petitioners have filed their reply to the said affidavit-in-opposition and in their reply they have dealt with the averments made in the said affidavit-in- opposition. During the pendency of the writ petition some of the petitioners expired and substitution has been duly made. In the pending writ petition in which affidavits and counter-affidavits were filed in 2003 and/or 2004 the writ petitioner sought permission of the Court on 19th December, 2011 for filing a supplementary affidavit but the same was opposed by the learned advocate appearing for the respondent Nos.8 & 9 and as a result, the said supplementary affidavit could not be filed. On 19th December, 2011 this Court passed the following order :-
"Mr. Sahoo, learned Senior Counsel along with Mr. Sudhakar Biswas, learned Counsel, appearing on behalf of the writ petitioner, wanted to file two supplementary affidavits, which was opposed by Mr. Banerjee, learned Senior Counsel along with Mr. Debu Banerjee, learned Counsel, appearing for the HIDCO and he submits that the supplementary affidavit is sought to be filed for bringing some new documents and adding some new grounds, which are not permissible.
However, Mr. Sahoo submits that his client is willing to file an application for amendment of the writ petition. The parties are at liberty to take steps."
By the said order this Court held that regarding application for amendment the parties would be at liberty to take steps. After the aforesaid order dated 19th December, 2011, in the year 2012 the writ petitioner filed an application for amendment being C.A.N.8561 of 2012. On the death of original writ petitioner No.1, Sachindra Nath Mondal Gita Rani Mondal, Sujit Mondal, Suman Mondal, Smt. Sushmita Chakravarty and Smt. Sumi Mondal (Karmakar) have been substituted as the heirs and legal representatives of the original petitioner No.1. The application for amendment has been affirmed on 29th August, 2012. In the amendment application it is the case made out by the petitioner -
a) that challenging the acquisition proceeding in respect of lands of the petitioners they moved the writ petition wherein amongst others specific challenge was made to the effect that Section 4 of the Land Acquisition Act, 1894 was not complied with.
b) that in pursuance of Court's orders an affidavit-in-opposition and a supplementary affidavit to the said affidavit-in-opposition were filed on behalf of respondent Nos. 1 to 4. As per order dated 18th March, 2004, passed by Pratap Kumar Ray, J. as His Lordship then was one Arup Kumar Majumdar affirmed separate affidavits. Said case came up for hearing on several dates and, ultimately, on 19th December, 2011 the writ petition was taken up for hearing by Ashoke Kumar Dasadhikari, J.
c) that while the application for amendment was under preparation the writ petitioner No.12 Dasarath Mondal alias Molla, died on 20th January, 2012 leaving his heirs and legal representatives and to bring them on record a substitution application was taken out which was disposed of on 2nd of August, 2012 and the prayer for substitution was allowed.
d) that in the meantime, learned conducting lawyer of the petitioners declined to conduct the case and they engaged a new lawyer. However, substitution application was filed within time which was allowed on 2nd August, 2012 and the petitioners, therefore, could not file the application for amendment beforehand.
e) that in compliance with an order dated 18th December, 2003 passed by this Hon'ble Court on 28th January, 2005, one Arup Majumdar, Deputy Superintendent, West Bengal, Government Press, Alipore, affirmed an affidavit annexing a supplementary affidavit of the respondent Nos.2 and 3 along with some gazettes in respect of notification under Section 4 and declaration under Section 6 of the aforesaid Act of 1894 and together with other documents.
f) that the application for amendment is necessary to bring all the relevant facts as to non-compliance of the mandatory provisions of publication of notification and illegal invocation of urgency provision as contained in Section 17 of the Land Acquisition Act, 1894, in a synchronized way and for complete and effective adjudication of the case.
g) that the amendment sought for will not cause any prejudice to the respondents and the same is necessary for the ends of justice and for just decision.
h) And that there is no negligence and/or laches on the part of the petitioners to seek amendment of the writ petition.
Accordingly, the petitioner has sought for incorporation of some paragraphs, grounds and one prayer. It appears from the amendment petition that the paragraphs which have been sought for to be incorporated as part of the writ petition is already on record. The petitioners have highlighted that since the urgency clause that is, Section 17 of the aforesaid Act has been invoked under the acquisition proceeding the petitioners want to challenge the provision of the said Section 17 of the Land Acquisition Act, 1894 because, according to the petitioners, by invoking the provisions of Section 17 they are deprived of the opportunity of filing objection to the acquisition proceeding. But it is apparent on the face of the record particularly, the affidavits filed by the respondents it appears that in 2003 the notifications were annexed to the affidavit-in-opposition wherein Section 4 notification disclosed about invocation of the provisions of Section 17. It is not understood when the notifications are already on record, what is the necessity of amending the writ petition for challenging the said provisions of Section 17 by incorporating few paragraphs to that effect. When the materials needed to be incorporated in the writ petition are already on record the writ petition can be adjudicated upon on the basis of those available records and documents and the writ petitioner can rely on the same which are part of the record. The prayer which has been sought to be incorporated is already in the prayers of the writ petition and that being so, the proposed amendment may not be necessary. That apart, the writ petitioner has failed to advance any cogent ground for filing the amendment application for effective adjudication of the lis between the parties. He has also failed to give explanation as to why the amendment application has been filed at such a belated stage when the writ application was affirmed on 24th September, 2003 and affidavits were filed immediately thereafter and particularly, when necessary documents were exhibited by the respondents either by way of affidavit-in-opposition or by supplementary affidavit which are already on record.
Mr. Sahu, learned advocate for the petitioner, submits that even if there is delay the amendment application may be allowed depending upon the facts and circumstances of a particular case. He submits that in the present case, although, there has been substantial amount of delay but that will not stand in the way of amending the writ petition. Mr. Sahu submitted that he had tried his level best to come up with an application for amendment in time but as the matter was taken up by various Benches at different point of time he was unable to take out the application for amendment in time. He submits that the amendment application is a genuine one and that there was no mala fide in making such application before the Court and, therefore, the same should be allowed. In support of his submission Mr. Sahu has relied upon the following judgments:
(2011) 5 Supreme Court Cases 553 Radhy Shyam (Dead) Through L.R.S. & Ors. - Vs. - State of Uttar Pradesh & Ors.
AIR 2011 Supreme Court 3389 Lalrivenga dead by LRs. & Anr. - Vs. -
State of Mizoram & Ors.
2010(1) CLJ(SC) 89 Surendra Kumar Sharma - Vs. - Makhan Singh. (2010)1 WBLR (Cal) 865 Sri Gopal Krishna Saha - Vs. - The State of West Bengal & Ors. (2007) 6 Supreme Court Cases 167 Andhra Bank - Vs. - ABN Amro Bank N.V. & Ors. 2003(2) CLJ 392 Rathindra Nath Chattopadhyay - Vs. - Ratna Roy Gupta. (2002) 7 Supreme Court Cases 559 Sampath Kumar - Vs. - Ayyakannu & Anr. (2001) 2 Supreme Court Cases 472 Ragu Thilak D. John - Vs. - S. Rayappan & Ors. (1978) 2 Supreme Court Cases 91 M/s. Ganesh Trading Co. - Vs. - Moji Ram. AIR 1969 Supreme Court 1267 Jai Jai Ram Manohar Lal, - Vs. - National Building Material Supply, Gurgaon.
All the above-mentioned judgments have been cited to show that amendment should be construed liberally but the fact situation of the case cited above are completely different to that of the fact situation of the present case and, therefore, no discussion on those judgments is required to be made separately.
Mr. Banerjee, learned Additional Advocate General, appearing for the respondent Nos. 8 and 9 (West Bengal Housing Infrastructure Development Corporation Ltd.) submits that the writ petitioner has made out no case for amendment. He submits that in the facts and circumstances of the case there has been an inordinate delay and that too such delay has not been properly explained anywhere in the application for amendment. He submits that according to Article 137 of the Limitation Act at best the application could be taken out within a period of three years but beyond three years the same is barred under the law and, therefore, the application for amendment beyond the prescribed period of three years should not be allowed. In order to emphasize his argument on the question of delay he has placed reliance on the judgment reported in (2014) 4 SCC 108 (Chennai Metropolitan Water Supply & Sewerage Board & Ors. - Vs. - T.T. Murali Babu) and relying paragraph 16 thereof he submits it has been held by the Hon'ble Supreme Court that delay and laches should not be lightly brushed aside. A constitutional Court has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person without adequate reason approaches the Court at his own leisure and pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. It has been further held that in certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, "law does not permit one to sleep and rise like a phoenix." Delay does bring in hazard and causes injury to the lis. Relying on the paragraph 16 of the said judgment Mr. Banerjee submits that in the instant case, the application for amendment is barred by the law of limitation and because of the unexplained delay the same cannot be entertained and should be rejected. Mr. Banerjee further submits that awardees including the writ petitioners received award money by putting signature and documents have been annexed to show such payment as R-1 to the affidavit-in- opposition affirmed by Mr. Amitava Bhattacharya on behalf of respondent No.2 on 17th September, 2014. He submits that the writ petitioner never filed any objection against the award money and, therefore, the compensation awarded by the Land Acquisition Collector has become final and that too accepted by the writ petitioners. The writ petitioners never filed any application for reference within the prescribed period. It has been submitted that by attempting to amend the writ petition the writ petitioners have attempted to make out a new case and the same is not permissible in law.
Mr. Ram Mohan Pal, learned advocate appearing for the State, has drawn the attention of the Court to his affidavit-in-opposition and submits that award was published in 2004 and the petitioners have received the award money. By the affidavit he has also pointed out the payment status of the petitioners. According to him, there is nothing in the writ petition. The same has become infructuous and should be dismissed.
The matter was taken up for consideration by this Court on number of occasions as will be evident from a list of dates filed by the petitioner and the same is set out below:-
24.9.2003 ... Writ petition was affirmed.
Writ petition was moved.
11.11.2003 ... A/O by 15.11.2003, A/R by 17.11.2003. The matter P.K. Ray, J. will appear on 17.11.2003 as 'Listed Motion' at the top of the list. Liberty to the petitioners to deposit deficit Court fees.
18.11.2003 ... Respondents 1-3 are directed to produce the records. P.K. Ray, J.
28.11, 2003 ... On the prayer of Advocate of petitioners matter P.K. Ray, J. adjourned till Wednesday next at 2 P.M. Let the Suppl. Affidavits filed by Respdt. Nos. 1,2,3 and 8 land the reply filed by petitioners be kept on record.
18.12.2003 ... Learned Advocate for the respondents challenged P.K. Ray, J. maintainability of the writ petition, though no affidavit-in-opposition filed, leave granted to file supplementary affidavit by Tuesday by disclosing the exact date and Memo under when the Gazette was sent to sales counter for public etc. The matter will be listed on Tuesday, 23.12.2003 at 2 P.M. as specially fixed for consideration of injunction matter .
23.12.2003 ... The supplementary affidavit filed by respondent No.8 P.K. Ray, J. be kept with the record, reply, if any be filed by one week after X'mas vacation and the matter will come up on 13.1.2004 at 2 P.M. 19.01.2004 ... Ld. Advocate General sought for time to file A/O, by 28.1.2004 A/O to be filed, A/R by 2.2.2004. The matter will appear on 4.2.2004 at 11 A.M. 11.3.2004 ... Heard in part. Adjourned to 18th March 2004 at 2 P.K. Ray, J. P.M. 18.3.2004 ... Superintendent B.G. Press is directed to produce P.K. Ray, J. records.
31.3.2004 ... As petitioner No.11 died, steps be taken. CAN 2783 P.K. Ray, J. already filed. To supply affidavits filed by one Dipak Kr. Basu affirmed on 29.3.2004 and 31.3.2004 respectively by kept with records subject to the direction if any, as to be filed by way of affidavits by the petitioners. .................. Parties directed to file respective affidavits answering the points as per order dated 18.3.2004 on next date.
31.3.2004 ... Submitted by Petitioners that petitioner no.11 died P.K. Ray, J. and application for substitution filed. Matter be released from the list.
8.7.2004 ... CAN 2783 (Substitution of Petn. No.11) is allowed. Registrar (Admn.) 6.1.2005 ... Petitioner is directed to communicate the order P.K. Ray, J. about production of documents to the Officers & learned Advocate.
13.1.2005 ... Matter to appear on 5.2.2005 at 11 A.M. P.K. Ray, J.
4.2.2005 ... A.K. Majumdar and K. Pramanik are present in P.K. Ray, J. Court today. Matter is adjourned till 17.2.2005 at 11 A.M. let inspection of records be made by petitioners.
17.2.2005 ... Pursuant to the order dated 4.2.2005 Sri A.K. S. Pal, J. Majumdar and Sri Kartick Pramanik are present today before Court with records. Further appearance dispensed with until further order.
Matter to appear on 22.02.2005 as 'For Orders'.
22.2.2005 ... Petitioner No.1 died, matter is released. It will not be
P.K. Ray, J. treated as part heard.
19.8.2005 ... By order dated 22.2.2005 the matter was directed
P.K. Ray, J. not to be treated as Heard in part and it was
released. At the present moment this Court has no
determination to hear this matter, let the matter be released from by list.
14.9.2005 ... Let this matter be now heard by the present Chief Justice appropriate Court having determination. 1.8.2006 ... R. Ray for petnr. Let the matter be listed in monthly D.Kar Gupta, J. combined list of August, 2006 under the hearing.
23.8.2006 ... On the prayer of the learned Advocate for the
D. Kar Gupta, petitioners the matter stands adjourned for two
J. weeks. The matter will appear under the heading
hearing in the supplementary list on 6.9.2006.
23.8.2006 ... R. Ray for petitioner, D. Banerjee for State.
D. Kar Gupta, Matter stands adjourned on the prayer of petitioner.
J. To appear under the heading Hearing on 6.9.2006 in
Suppl. List.
6.9.2006 ... P.B. Sahu & S. Biswas
To appear in monthly list of Nov. 2006 along with
other writ - W.P. 2259 of 2003. Counter affidavit
filed by petitioner be kept on record.
13.11.2006 ... Matter stands adjourned for three weeks on the
prayer of petitioner - Ramapati Roy.
12.2.2009 ... Counsel prays for adjournment. Let it go out of the
J.K. Biswas, J. list.
19.12.2011 ... Petitioner is wanted to file Suppl. Affidavit which
A.K. Das was opposed by Mr. Banerjee along with D.
Adhikari, J. Banerjee for HIDCO and submit ICS for bringing
new documents and adding new grounds which are
not permissible. Mr. Sahu submits that he will file
amendment of writ petition. Liberty to take steps.
It appears from the record that only after 19th December, 2011 the petitioner has taken steps for filing an application for amendment and the delay he has explained is only with regard to the delay caused after death of some of the petitioners in the meantime but, so far the delay caused prior to the death of the said petitioners and prior to the substitution application was allowed on 2nd August, 2012 as such, there is no explanation by the petitioner as to why such an application for amendment should be considered at such a belated stage after about 7 years. That apart, because of the delay the acquisition proceeding has come to an end and lot of changes have occurred in view of the conclusion of the acquisition proceeding. In the writ petition there was no interim order passed by which the interest of the petitioner is protected and if no interim order has been passed then before allowing the application for amendment it is required to consider as to whether by allowing such amendment application third parties would be affected or not. In the instant case, the amendment sought for is not necessary for deciding the real question in controversy. The real question in controversy is whether the acquisition proceeding has been initiated in accordance with the provisions of Land Acquisition Act or not and as to whether the provisions of the said Act has been duly complied with or not. Since the entire acquisition proceeding is under challenge and the writ petition is yet to be decided to decide the fate of the acquisition proceeding amendment or no amendment, will not change the situation. According to the writ petitioner, the real question in controversy is invocation of Section 17 of the Land Acquisition Act that is, the urgency provision. Although, the petitioner challenges the said urgency provision but it took almost 7 years to incorporate the same into the writ petition. This delay has a significant effect which may adversely affect many others those who are not parties to this writ petition. Inasmuch as pleading has already been made in the writ petition itself regarding the merit of the acquisition proceeding proposed amendment is not necessary for disposal of the real controversy between the parties and, therefore, the amendment application merits no consideration at all. I do not find any bona fide in making the application for amendment at such a belated stage, although, everything was within the knowledge of the petitioner all the times after the affidavits and supplementary affidavits were filed in Court by the respondents. While in 2005 the State has filed an affidavit disclosing in details about the acquisition proceeding, the writ petitioner has come up with an application for amendment only in the year 2012, almost after a period of 7 years. This long period of delay is yet to be explained by the petitioner. Instead of explaining the delay with cogent reasons for the proposed amendment, he has only said that the delay is beyond his control and except this no other explanation has been offered in the application for amendment. Even if for the sake of argument the delay is condoned, it cannot undo what has already been done as a consequential effect of the acquisition proceeding. Pursuant to the acquisition proceeding, the State has acquired the property and they are no more the custodian of the acquired properties. Since the writ petitioners are not protected by any interim order, by now the acquired properties have been settled with numerous persons and such numerous persons have developed the properties in various ways. At this stage, if this amendment is allowed in order to throw challenge against the authority invoking the provisions of Section 17 of the Land Acquisition Act, 1894, the over-bridges built upon the acquired property have to be pulled down, multi-storied buildings raised upon the acquired property have to be demolished, roads made on the properties under acquisition have to be removed and so on which is not possible at this stage because the acquisition proceeding was initiated prior to the year 2003 and after a lapse of 11-12 years by allowing the amendment the petitioner cannot be permitted to challenge the urgency clause in the acquisition proceeding so as to re-open the whole thing. A right has accrued to innumerable number of innocent people by virtue of lapse of time and if today this amendment is allowed these innocent people may be invited to unnecessary trouble and harassment which they are not prepared to face with and in all fairness those persons are to be made parties in the writ petition before their interest in the land settled with them is adversely affected. If this is allowed the same will create a lengthy and never ending process for disposal of the writ petition and cannot be permitted in law.
Therefore, by exercise of discretion of Court I am unable to allow the amendment petition at such highly belated stage. That apart, principles governing amendment of pleadings in a suit or civil proceeding would not apply to writ proceedings because when the writ petition is filed the petitioner discloses the fact on the basis of papers available to him and even papers are not available, pleading made in the writ petition will be sufficient to make the attack which is still open for the writ petitioner in the present writ petition and, accordingly, proposed amendment if not allowed, the writ petitioners will not in any way be prevented from challenging the acquisition which he has already made in the writ petition. The amendment sought for is no subsequent event because no new fact has been brought. Invocation of Section 17 of the said Act was there when Section 4 notification was made. Therefore, there is no reason to allow the amendment application. In the present case, there is no subsequent event has been sought to be incorporated. Everything was within the petitioners' knowledge with regard to the acquisition proceeding and he has challenged the acquisition proceeding itself and in my view, there is no subsequent event to be brought on record by way of amendment. Therefore, there is no scope in the present petition seeking amendment of the writ petition.
Accordingly, the application for amendment is rejected. There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)