Calcutta High Court (Appellete Side)
(Anchor Apartments Private Limited vs State Of West on 2 February, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
2 2.2.2018
jb.
W.P. 15862(W) of 2017
(Anchor Apartments Private Limited vs. State of West
Bengal & Ors.)
Dr. Indrajit Mondal
Mr. Amit Banerjee
.... For the Petitioner
Mr. Soumitra Bandyopadhyay
Mr. Subhasis Bandyopadhyay
.... For the State
Mr. Suranjan Mondal
.... For the Respondent nos. 4 to 63
This writ petition has come up for the third time before me. The order sheet would show that I have initially made up my mind that the petitioner was a post vesting transferee without having had the opportunity to ascertain whether the money had been tendered in terms of Sections 11 and 12 read with Section 18 of the Land Acquisition Act, 1894 and without ascertaining whether physical possession has been taken by the Government of West Bengal and handed over to the requiring body. That is why after this matter became evident to me in little more mature introspection, I caused the matter to be brought up as 'To be mentioned' in the daily cause list and in presence 2 of both sides caused the order to be recalled. I directed the matter would be taken up for further hearing today and pursuant to such direction the parties are present and the matter is taken up.
It appears that the writ petitioner's grievance is that it found out after purchase of the property that there was an acquisition proceeding in respect of the property and it was further ascertained that its vendors have not received any compensation for such acquisition.
Mr. Soumitra Bandyopadhyay, learned counsel appearing for the State of West Bengal ably assisted by Mr. Subhasis Bandyopadhya, learned counsel submits that the award has been declared after due process and some of the persons interested in the land including some of the vendors have already obtained compensation while some others have not so received it. In their cases, the funds have already been deposited with the competent civil Court under Section 18 of the aforesaid Act. Therefore, there has been not only tender but payment of award money within the meaning of Section 16 of the Land Acquisition Act, 3 1894.
Learned counsel for the West Bengal HIDCO Limited submits that it is his client which is the requiring body though it has not been arrayed as party respondent.
Dr. Mondal appearing on behalf of the petitioner instructed by Mr. Amit Banerjee, on the other hand, submits that his principal cause of action is against the Collector and the State of West Bengal for non-payment of compensation for acquisition to which he is entitled and, therefore, West Bengal HIDCO Limited being the requiring the body has nothing to do with it.
What complicates the matter in the present case is that the writ petitioner in an earlier round of litigation had obtained an order from a Co-ordinate Bench of this Court on March 20, 2017 in W.P. 1367(W) of 2017 directing the respondent no. 3 therein to consider and dispose of the application made by the petitioner for disbursement of the amount of compensation. Pursuant to such direction, the respondent no. 3 has purported to pass the order wherein he has recorded several facts which would constitute dispute as to whether title has passed to the writ 4 petitioner; while at the same time the respondent no. 3 has also recorded that the appearing opposite parties before that authority who had disputed whether they had sold the land to the writ petitioner were, on the face of the records, the vendors. The said authority in the order dated May 12, 2017 which is impugned before this Court has not recorded that money has been disbursed to the vendors of the petitioner. Despite the aforesaid, it has also been recorded that the writ petitioner is a post vesting transferee and the sale in its favour was executed after the State of West Bengal had acquired the land.
It is no longer open for any of the parties to dispute that acquisition under Act 1 of 1894 is not complete until payment of compensation has been made and compensation has been taken. Only then does the land vest in the State of West Bengal. In order to ascertain whether compensation has been paid to the persons interested in the land within the meaning of Section 9 of the erstwhile Act of 1894 and more especially to the respondent nos. 4 to 88 who are alleged to be the vendors of the present writ petitioner and to ascertain 5 compensation of the land has been taken physically by the Government of West Bengal and handed over to the requiring body who are the intervenors as aforesaid has already utilised it, it is necessary to add the Intervenor West Bengal HIDCO Ltd. as party respondent to this writ petition. Inasmuch as there are already 88 respondents in the writ petition, I direct that the writ petitioner to add the intervenor in the name and style to be provided to the writ petitioner's learned advocate on record by the learned advocate on record of the intervenor as added respondent no. 89. Learned advocate on record of the petitioner is given liberty to amend the cause title of the writ petition by adding the respondent no. 89 as aforesaid within the course of February 7, 2018. Whatever the appropriate correction shall be made and amendment shall be made to the file and register and to all other cause papers, for which reason the learned advocate on record of the writ petitioner shall attend the department at time which is mutually convenient to them. Such correction and amendment of the cause title of the file and register must be completed latest by February 9, 2018. On such 6 correction and amendment of cause title being made a complete copy of the amended writ petition as above shall be served on the learned advocate appearing for the added respondent no 89 in no case later than February 12, 2018. So far as the other respondents who have already been served and appeared are concerned, only service of the corrected pages of the writ petition would be required. So far as the non-appearing respondent nos. 64 to 88 are concerned, a fresh notice shall be sent by the writ petitioner's learned advocate on record communicating the present order.
The issue as to whether the writ petitioner is a post vesting transferee cannot be decided without submissions made today on behalf of the State respondents and the added respondents being brought on record by way of filing their affidavits. If payment has been made to all the persons interested, all their interests would have vested in the State of West Bengal taking possession. If on the other hand, some of the vendors who are persons interested to claim compensation have not been paid within the meaning 7 of Act 1 of 1894 then the question will arise as to whether Dr Mondal's client is a post vesting transferee or post notification transferee. If he is post vesting transferee then the sale deed is void and the order of the Authority though deficient in many respect may not be interfered in judicial review. Since the ultimate decision would then be held to be correct even if the decision making process has some irregularities which are not material, yet even this issue cannot be decided unless the respondents who are interested to oppose the present writ petitioner are granted liberty to file affidavit in opposition within four weeks from February 12, 2018. Reply thereto, if any be filed within two weeks thereafter.
The matter shall appear as contested application on March 28, 2018.
Government of West Bengal is directed to disclose the amount of compensation, market value ascertained by the L.A. Collector and the basis thereof and to annex the copy of the award and also give particulars of the vendors 8 of the writ petitioner, receipt of award if any and if there be any amount which is yet to be paid. This order shall not prevent the writ petitioner from approaching the appropriate Forum on acquiring information of any money which is yet to be paid to his vendors by way of compensation and for accepting the same. In case such prayer for payment of balance compensation is made on the basis of any affidavit used by the State of West Bengal, the State shall be at liberty to disburse the amount. This prayer for acceptance, disbursal shall be without prejudice to the rights and contentions of the parties.
(Protik Prakash Banerjee, J.)