Calcutta High Court (Appellete Side)
Tapas Kumar Bagchi vs The State Of West Bengal & Ors on 11 April, 2019
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11-04-2019
MAT 1692 of 2016
(CAN 9364 of 2016)
sg
(CAN 9363 of 2016)
Ct. 37
Tapas Kumar Bagchi
Versus
The State of West Bengal & Ors.
Mr. Probal Kr. Mukherjee, Sr. Adv.
Mr. Rajat Dutta, Adv.
...for the appellant
Mr.T.M. Siddiqui, Adv.
Mr. Nilotpal Chatterjee,
Sufficient cause being shown for not being able to file the appeal within
the statutory period. The delay of 58 days in preferring the appeal is condoned.
CAN 9364 of 2016 is allowed.
This appeal is directed against an order dated 7th June, 2016 by which the
writ application was dismissed on the ground that the dispute canvassed in the
writ petition cannot be adjudicated by the Writ Court.
The learned Counsel appearing on behalf of the appellant has drawn our
attention to two reports filed by the District Magistrate, Murshidabad on 28th
June, 2012 and 11th July, 2012 and submitted that the findings arrived at by the
District Magistrate in the said two reports are contrary to the order passed by the
District Magistrate on 6th October, 2015.
The writ petition has a chequerred history. The writ petitioner alleged
that the writ petitioner was the owner of four plots of land, being plots nos.
5740, 5741, 5742 and 5419. The contention of the petitioner was that, although,
the State authorities have acquired the said lands for Pradhan Mantri Gram
Sadak Yojana (PMGSY) but no compensation was paid to the writ petitioner.
The petitioner further alleged that no award was passed after acquisition of the
said plots. On a reference being made, the District Magistrate on 28th June, 2012
recorded that a road was constructed on the plot nos. 5740, 5741 and 5419 under
PMGSY on 22nd March, 2010. The writ petitioner represented before the
authority that approximately 11 decimals (one bigha) has been included in
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PMGSY. The Block Land and Land Reforms Officer, Jalangi has produced a
report dated 17th March, 2010. From the said report it shows that while the RS
map did not indicate any road that connects the Panchayat road and the PWD
road over plot nos. 5741, 5740, 5742 and 5419 in Mouza Kharamari, the
connection that was done through the newly built PMGSY road was to connect
the existing Gam Pancnayat road to the newly construction Gam Panchayat
Road. The Panchayat Prodhan submitted before the authority that the foot
travelers used the said plots of land as passage for long.
On such consideration, the Sub-Divisional Officer, Domkal was directed
to examine the report of the Block Land and Land Reforms Officer after making
a spot survey and give his view. Thereafter, on 11th July, 2012, in pursuant to a
direction passed by the Hon'ble Court on 5th September, 2011 in the earlier writ
petition, a hearing was taken place which records the following status of the
land of the writ petitioner:
Plot Mouza Total Claimed Vested House/ PMGSY
nos.(RS) area (ac) by the area structure Road
petitioner (ac) (ac.)
5740 Khairamari 0.36 0.17 0.14 0.20 0.06
5741 Khairamari 1.20 1.20 ---- ---- 0.11
5742 Khairamari 0.53 ---- ---- ---- ----
(pukur)
5419 Khairamari 0.08 0.08 0.06 ---- 0.0075
The BLRO appears to have contended before the District Magistrate at
the time of hearing that the vested land was never demarcated and/or taken
possession of. Separate proceedings may be necessary to be initiated by the
Revenue Officer. In the event the land in question is covered by PMGSY road,
the petitioner should approach the said authority for compensation.
After hearing the parties, the District Magistrate observed that, it is
prima facie established that out of the four plots mentioned in the representation
of the petitioner, 17.75 decimals of land was covered by the PMGSY road and,
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therefore, the contention of the petitioner on the land in the plots being covered
by the PMGSY road is established. The order records that the writ petitioner had
agreed to make a representation along with the documentary evidence to prove
his legal possession over the land for which he has claimed compensation for
the reason that the PMGSY road was completed in 22nd March, 2010.
On the basis of the submission made on behalf of the B.L.&L.R.O.,
Jalangi that the vested land was never taken possession of, the matter was
adjourned in order to ascertain the portion of the land that was vested. The B.L.
& L.R.O., Jalangi, was directed to examine the record and carry out necessary
correction of the record, if necessary, within a period of two months. On 16th
June, 2014, the time to file report by the B.L. & L.R.O. was extended. On 14th
September, 2015, the B.L.&L.R.O., Jalangi and the Executive Engineer,
WBSRDA, Murshidabad Division filed a report. B.L.&L.R.O., Jalangi,
reiterated that the right, title and interest of the petitioner along with the portion
of the land has not been established. That the petitioner is one of the successors
of Smt. Chayarani Bagchi along with others was not disputed. It was observed
that if it is found that the right, title and interest is established in favour of Tapas
Kumar Bagchi by any appropriate authority, his claim over the land occupied
for PMGSY road would be considered. The executive Engineer, WBSRDA was
directed to submit a report on the following points:
1) The ownership of the PMGSY Road.
2) To report clearly whether the land on which the road was constructed still belong to
the previous owners or not.
3) Whether the R.O.R. can be changed in favour of the name of the present owner.
4) Whether there is any provision of any compensation for the owners of the plot, on
which the road was constructed.
The reports must include relevant G.O. and guidelines of the concerned
Deptt.
The matter was adjourned till 6th October, 2015 for further consideration.
On 6th October 2015, on consideration of the report of the Executive Engineer,
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the District Magistrate passed an order that the said report shows that more than
50 years the land covered by the aforesaid plots were treated as easement right
of the public in terms of Section 25 of the Limitation Act, 1963 therefore, the
ownership of the land is not with the petitioner. Accordingly, the petitioner is
not entitled to compensation. This finding is under challenge. The said decision
falls foul of two things: - Firstly, there is nothing on record to show that the
report of the Executive Engineer, WBSRDA was made available to the writ
petitioner before the hearing and secondly, the authority is in no way concerned
with the right of easement unless the record of rights indicates to that effect. The
B.L. & L.R.O. did not contend before the District Magistrate on 6th October,
2015 that the record of rights shows otherwise. The record of rights is a prima
facie evidence of occupation as well as the character of the land.
We are not unmindful of the fact that the record of rights does not create
title but it certainly shows occupation. The District Magistrate is not the
authority to decide the ownership of the claimant. Moreover, the District
Magistrate also did not refer to his earlier finding where on the basis of the
report available with him, he was prima facie of the view that the land of the
writ petitioner is covered by the PMGSY. Since the order passed by the District
Magistrate is subject to judicial review it is expected that such authorities if not
elaborately but precisely indicate reason after referring to the earlier reports and
documents so that the reviewing court would be in a position to assess the
propriety of the order.
We feel that the said order suffers from non-application of mind and
does not disclose any reason. It had failed to refer to the earlier document, and
the reason for arriving at a different conclusion. The order is an unreasoned
order in the sense that it did not adequately mention the ground on which basis
the claim of the writ petitioner have been denied inasmuch as the said authority
could not have relied upon the Limitation Act to deny the right of the writ
petitioner in the absence of any record to support such conclusion. The
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Executive Engineer, WBSRDA is not the authority to decide that the claim of
the writ petitioner is to be defeated on the ground of Easement Act.
On such consideration, the impugned order is set aside. The District
Magistrate, Murshidabad is directed to re-consider the matter of compensation
afresh in the light of the aforesaid observation after giving a reasonable
opportunity of hearing to the writ petitioner and the concerned parties. All the
records on which the respondent authorities intend to rely in the said proceeding
should be made available to the writ petitioner in advance in order to enable the writ petitioner to make appropriate submission before the District Magistrate at the time of hearing. The entire exercise shall be completed within a period of 12 weeks from the date of communication of this order.
The appeal succeeds. The impugned order is set aside. However, there shall be no order as to costs.
The appeal being MAT 1692 of 2016 and the applications being CAN 9364 of 2016 and CAN 9363 of 2016 are accordingly disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(Ravi Krishan Kapur, J.) (Soumen Sen, J.)