Calcutta High Court (Appellete Side)
Sukunda Adhikari vs Union Of India & Ors on 11 July, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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July 11, 2018
12 ARDR
WP 2607 (W) of 2018
Sukunda Adhikari
Vs.
Union of India & Ors.
Mr. Bhagbat Chowdhury,
...for the petitioner.
Mr. Chandi Charan De,
Mr. Anirban Sarkar,
...for the State.
The writ petitioner had alleged that without due process the respondent
authorities have taken possession of the land of the writ petitioner. The writ petitioner had made a representation and had also applied for information under the Right to Information Act, 2005 as in Annexures P-3 and P-4 to the writ petition. The writ petitioner's claim that the representations aforesaid/request for information were not responded by the respondents. I had requested the learned Additional Government Pleader, Mr. De, to take instructions in the matter. Mr. De has come back today and has fairly submitted that the instructions even under the signature of the Special Land Acquisition Officer, Darjeeling who is the 6th respondent in answer to paragraph 18 of the writ petition clearly indicates as follows:
"18. In response to para 18 the respondent no.6 states that as no any of acquisition proposal was received from the SSB authorities and thus the question of payment of compensation against petitioners land by the L.A. Collector could not be made".
Besides, it is also admitted in the instructions that despite thorough search of the records in the office of the L.R. Collector no record for acquisition of the concerned land or even proposal for acquisition were found. Therefore, it now stands admitted that the lands of the writ petitioner have not been lawfully acquired.
It is also apparent that though the petitioner admittedly is a co-owner of the property, the Commandant 41 Battalion, Sashastra Seema Bal has taken over the property of the petitioner and his brother without due process of law. The said 4th 2 respondent is a party to the proceeding and it appears that from the affidavit of service that the 4th respondent has been served the copy of the writ petition and the notice on February 9, 2018. He has chosen not to appear.
I cannot, without hearing the 4th respondent, pass any order for dispossession him or the Armed Force of which he is the Commandant. However, since it was not acquired under the exercise of any of the powers of the State of West Bengal for expropriation and the said Commandant has not come forward to show any justification for such dispossession of the petitioner under any special power, under any other law the expropriation of the lands of the petitioner is illegal and without jurisdiction.
I, therefore, adjourn the matter for a period of a fortnight to allow the State of West Bengal either to start a proceeding under the Act 30 of 2013 or acquire the land by private treaty or to call for explanation from the 4th respondent as to how and under what authority it has dispossessed the writ petitioner.
It is the express case of the writ petitioner that the dispossession has been made at the instance of the 4th respondent and not the State of West Bengal. Therefore, in case the State of West Bengal chooses to acquire the property, the 4th respondent or the Union of India shall be deemed to be the requiring body and money shall not be payable to the petitioner until the said requiring body in accordance with law has deposited the market value computed under Act 30 of 2013 and also make appropriate provisions of rehabilitation of the writ petitioner.
The matter shall come up for further consideration for fortnight hence. That apart, the respondent no.4 is asked to be present in person before this Court or depute an officer subordinate to him who is competent to instruct Advocates along with the records of the case to explain how and why he could dispossess a citizen from his property without following the procedure established by law. The 4th respondent shall be entitled to legal representatives.
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This order is to be communicated to the 4th respondent by the Superintendent of Police, Darjeeling.
The instructions produced by Mr. De is kept on record.
(Protik Prakash Banerjee, J.)