Calcutta High Court (Appellete Side)
Rabindra Nath Singha & Ors vs State Of West Bengal & Ors on 8 February, 2018
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONALWRITJURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Mir Dara Sheko
W.P. No. 22517 (W) of 2015
Rabindra Nath Singha & Ors.
Vs.
State of West Bengal & Ors.
For the Petitioners : Mr. Sudeep Sanyal,
Mr. S. Jana,
Mr. Sukanta Das,
Ms. Lopamudra Moitra,
Ms. Tutun Das
For the State : Mr. Ansar Mandal
Respondents Mr. Susovan Sengupta,
Mr. Ahibhusan Chakraborty Heard on : 19.01.2018 Judgment on : 08.02.2018 Mir Dara Sheko, J. : 1. The instant writ petition is filed seeking the rule of mandamus entitling the writ petitioners to get compensation award in terms of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 on account of acquisition of 3.59 acres of plot no.43 (new number being 101) appertained to J.L. no. 371 of mouza-Betkundari belonging to the writ petitioner no.1, and of 0.70 acres of land appertained to same J.L. number and mouja belonging to writ petitioner nos. 2 and 3 as was acquired by the State on the basis of requisition for construction of Kangsabati Reservoir Project.
2. Mr. Sanyal, learned Senior Counsel for the writ petitioners submitted that for the above purpose L.A. case no.60 of 1982-1983 was initiated. But the petitioners received notice dated 27.04.2005 under Section 9(3B) of the Land Acquisition Act I, 1894 by which they were asked to appear though estimate in Form 4A and proposal for placement of fund were never made till then although the Executive Engineer, Kanshabati Canals Division however wrote to the District Magistrate Paschim Medinipur for placement of fund with reference to L.A. case no. 60 of 1982-83. Further submitted that pursuant to above notice though the petitioner attended the hearing on the appointed day, but no result yielded since the requiring body could not place the fund due to intra departmental communication gap.
3. Mr. Sanyal invited my attention to the letter no. 328 dated 29.05.2014 again written by the then Executive Engineer requiring body Kangsabati canals to the District Collector seeking estimated value of land so that the irrigation department might move for placing the fund due to be deposited at the disposal of the collector. Therefore submitted that though the L.A. Case 60 of 1982-1983 was initiated on the basis of requisition of the requiring body, and although the possession of the land belonging to the petitioners having been taken over by the acquiring body for public purpose on 22.11.1983 without payment of award despite persuasion till May 2014 the writ petitioners filed the writ petitioners seeking appropriate relief in terms of prayer in the writ petition.
4. Mr. Sanyal in support of his submissions relied upon following cases:-
1. State of West Bengal Vs. Somesubhra De reported in (2016) 4 WBLR (Cal) 300.
2. Full Bench decision of this Court reported in 2011(3) CHN (CAL) 555.
3. W.P. 11983(W) of 2010 Santosh Kumar Patra & Ors. Vs. The State of West Bengal (unreported).
4. MAT 1969 of 2013 The State of West Bengal Vs. Ganesh Samanta (unreported).
5. Mr. Sengupta learned Additional Government Pleader representing the State in the tune of their text of affidavit in opposition shortly to be called on hereafter as affidavit-in-opposition, per contra submitted that both the Act 2 of 1948 and Act I 1894 having been repealed and the rule is yet to be framed by the State Government to supplement the relief to the land losers there would be no question of divesting title or possession of the subject plot, which already got utilised for public purpose nonetheless of the fact that award was neither assessed nor published nor paid within the stipulated period prescribed under Section 7A of the Act 2 of 1948 which became inoperative on and from 01.04.1997. Submitted further that, the L.A. proceeding though was initiated under Act 2, 1948 but since it remained incomplete, the same would require completion invoking Section 9(3B) of the Land Acquisition Act 1894, for which notice was issued in this case. Since, according to Mr. Sengupta there is no provision under the new Act namely, "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013" (shortly to be called on as Act, 2013)" for automatic switch over of lapsed Act 2 the writ petition with its exaggerated claim is liable to be dismissed since it would not be maintainable. He relied upon the judgment in appeal delivered by the Division Bench of this Court on 23.08.2017 in MAT 86 of 2016 against which of course, Mr. Sanyal submitted that the said decision would not be applicable in the fact and circumstance of the instant case.
6. Consulted the provisions of law, both repealed and prevalent, and also the cases cited at the Bar which will be dealt with appropriately.
To overview the sequences related with facts and law involved therein and to be ensured thereby as to whether the authority requiring examination of the said fact within framework of the statute had appropriately utilised the provision to exercise the power vested to such authority. Therefore some chronological admitted facts only are cited viz.,
(i) the subject property belonging to the requisition for construction of canals from river Kangsabati was acquired by the State vide L.A. case no. 60 of 1982-1983,
(ii) possession of said property was taken over on November 22, 1983,
(iii) the petitioners on 21.07.2004 with reference to office memo 1051 dated 13.06.1989 submitted prayer to the Special Land Acquisition Officer to the claim and to issue cheque, but in vain,
(iv)on 18.03.2005 the Deputy Secretary to the irrigation and waterways department, Govt. of West Bengal forwarded representation of the petitioners to the L.A. Collector, Paschim Medinipur, so that payment of compensation would be expedited without any further delay, and if not done already then asked certain relevant particulars. A copy of said letter was also communicated to the writ petitioner,
(v)the petitioners were to be served with a notice under Section 9 sub-section (3B) of Act I, 1894 in Form-9 (though may be inadvertently mentioned the sub-section as "9(3b)". Accordingly, notice was given on 27.04.2005 informing to remain present at the site since marking and measurement of the subject land would be taken place as per declaration held under Section 6 of the Act 2 of 1948 with reference to the impugned L.A. case no. 60 of 1982-1983,
(vi) on 15.05.2004 the petitioners referring their two earlier letters knocked again the door of the then Executive Engineer Kangsabati Canal to settle their claim of compensation at the earliest opportunity,
(vii) the petitioner no.1 then aged about 71 years old again on 24.01.2014 sent representation to the concerned Executive Engineer so that they could get the compensation which till then they was not received by them,
(viii) from letter dated 29.05.2014 issued by the concerned Executive Engineer addressed to the District Magistrate, Paschim Medinipur so that tentative estimate be sent to their irrigation department, so that they could move for placement of fund.
7. The above noted series of fact gave clear indication that despite persuasion by the land losers, like the writ petitioners, even the tentative estimate, due for payment of compensation for the acquired land could not be assessed by the acquiring body, so that the requiring body could have deposited the amount. Rather the authority simply took plea of getting the L.A. Proceeding lapsed due to repeal of Act 2 of 1948 w.e.f. 01.04.1997 and later on as per paragraph 2(e) of the affidavit-in-opposition though to revive said L.A. Proceeding notice under Section 9(3A) of the Act I of 1894 was issued but it was also lapsed due to its non-completion for want of fund. Paragraph 2(d) and
(e) from Affidavit-in-Opposition on behalf of respondent nos. 1 to 5 are set out:-
2(d) Subsequently, the L.A. proceeding bearing number 60/82-83 got lapsed on 31.03.1997 due to repeal of Act II of 1948 w.e.f. 01.04.1997.
2(e) Later on, to revive the instant L.A. Proceeding, notice U/s. 9(3A) of Act I of 1894 was issued upon the land owners as per L.A. Amendment Act, 1997. But the said revival proceedings could not also be completed due to lack of required fund and thereby further lapsed.
8. From the fact of the case connected with the MAT 86 of 2016 The State of West Bengal & Ors. Vs. Niladri Chatterjee & Ors. (supra) the following was taken note of:-
"admittedly a notice under Section 9(3A) and Section 9 (3B) of the Act, 1894 was not issued." Their Lordships further observed, "in this case, since no notice was issued under Section 9(3A) or Section 9 (3B) of the Act 1894, the question of making or failing to make award under Section 11 did not arise."
9. Though judicial precedent is oftenly honoured and taken care of, if it is either squarely applicable, or its ratio decidendi is applicable, but at the same time in the similar nature of case judgemade law may be applicable in it subject to its variation depending on the given fact. Because slightest difference in the fact may also demand variation in legal answer. In the case on hand, unlike the case in Appeal (MAT 86 of 2016, supra) notice under Section 9(3B) was issued on 27.04.2005 under Act I of 1894 with reference to L.A. case no. 60/ 82-83 as was declared under Section 6 of the Act II 1948. That apart, this is legal proposition to accept for all time to come that for undoing the task by the authority vested to whom under law, inaction of such undoing of the authority cannot be thrown upon the shoulder of the other, who for such undoing became the victim firstly by losing the land, and, secondly being deprived of compensation money which the land loser is entitled to get under law, and thirdly, intra-department communications making such land looser hopeless compelled to knock the door of the Court seeking redress at the cost of anxiety, agony and expense. However, in the case on hand it appears that the writ petitioners were in communicating touch with the respective authority since before coming of the New Act of 2013, who were worried only about the compensation money in lieu of their land acquired by the state on the basis of requisition of irrigation department. In view of above in the case in hand since the petitioners should not be victimised again for any delay and laches on their part, the fact connected with the case involved in MAT 86 of 2016 (supra) is distinguishable and therefore is not applicable in the fact and circumstance of the case on hand.
10. Of course, notwithstanding non-fulfilling the condition laid down in Section 7A of Act 2 of 1948 the title of the writ petitioners which was already vested to the State, the same shall remain unaffected. In the case on hand, since no award was ever even assessed, far to speak of making payment of the same to the land losers and possession was taken over by the State and the requirement was implemented, the Central, or the State, whichever it would be, cannot violate the provisions of law legislated by it on according assent of the President. As also rightly contended by the state-respondent in its affidavit-in- opposition in paragraph 2(f) "there is no provision in the New Act of 2013 (Act 30 of 2013) to switch over such lapsed Act II L.A. cases under the Act of 2013." But in view of assertion made in 2(e) of the affidavit- in-opposition the state-respondent cannot now deviate that the L.A. proceeding initiated under Act II of 1948 was taken over under the prevalent Central Act I of 1894. That is why the notice under Section 9(3A) was also issued. Issuance of said notice gave rise also to deem that "in every case, the provisions of sub-section (1) of Section 4, Section 5, Section 5A, Section 6, Section 7 and Section 8 of this Act shall be deemed to have been complied with." Apart from the above assertion in affidavit-in-opposition the notice also under Section 9(3B), as was issued on 27.04.2005 (supra) is on record. But admittedly the proviso appended to both Section 9(3A) and 9(3B), and/or Section 11 of Act II of 1948 having not been proceeded with the L.A. proceeding under Act I of 1894 also remained incomplete. In such circumstance what would be the answer would be available from the judgment delivered by the Division Bench on 21.01.2014 in MAT 1969 of 2013 (The State of West Bengal Vs. Ganesh Samanta), relevant portions from its page 9 to 13 are set out:-
Thus, we find that in case of acquisition of any land in urgency under Section 17 of the said Act, provision for payment of eight percent of compensation to the landowner before taking over possession of such land, is made therein, subject to adjustment of the same against the ultimate amount to be awarded under Section 17(3B) of the said Act.
However such provision is absent in Act II of 1948, in case of acquisition of any land under Section 4(1a) of the said Act.
That apart land acquisition Act does not contain any provision dealing with the consequence for non-publication of the award and/or non-payment of the compensation within any fixed period, in case any land is required under section 17 of the said Act. But Section 7A of Act II of 1948 deals with the consequence of non-publication of the award within three years from the date of publication of notice under Section 4(1a) of the said Act. Section 7A of the Act II of 1948 is set out here under:-
"The Collector shall make an award under sub-section (2) of section 7 within a period of three years from the date of publication of the notice in the Official Gazette under sub-section (1a) of section 4 (hereinafter referred to as to said notice) and if such award is not made within the period as aforesaid, the said notice shall lapse:
Provided that in a case where the said notice has been published more than two years before commencement of the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1994 (West Ben. Act XIV of 1994), the award shall be made within a period of one year from the date of commencement of the Act.
Explanation- in computing the period of three years or one year, as the case may be, under this section, the period during which any action or proceeding to be taken in pursuance of the said notice is stayed by an order of a Court having jurisdiction shall be excluded."
On perusal of the said provision, we have no hesitation to hold that the Collector had an obligation to make an award under Section 7A of Act II of 1948 within a period of three years from the date of publication of the notice in the Official Gazette under sub-section 1(a) of Section 4 and if such award is not published within the prescribed period, the said notice shall lapse. In the present case, though notice under section 4(1a) of Act of 1948 was issued on 14th April, 1986 but no award was admittedly published within three years from the date of issuance of such notification. As such the notice which was issued under Section 4(1a) of Act of 1948, stood lapsed with effect from 14th April, 1989. When the notice lapsed, we cannot hold that the title which was vested with the State by operation of law under section 4(1a) of the said Act will continue to remain with the State even after the State respondent failed to published the award under section 7A of the said Act, within the statutory period.
Since the provision for acquisition of the land under the land Acquisition Act and the vesting of title with the State under the said Act are not identical with the provisions contained in Act II of 1948; we hold that the decision of the Hon'ble Supreme Court which was cited by Mr. Sengupta in the case of Satendra Prasad Jain -vs- State of U.P. (supra) has no application in the facts of the instant case.
By relying upon the Special Bench decision of this Court in the case of State of West Bengal -vs- Sabita Mondal (supra) we thus hold that the State Government could have completed the acquisition proceeding by applying the provision contained in section 9(3A) of the Land Acquisition Act, in pursuance of the notice which was issued by the State Government in compliance of the direction passed by the Learned Single Judge of this Court, but in view of the subsequent development in the Land Acquisition Laws with the enactment of the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 and particularly in view of section 24(1)(a) of the said Act, the State respondent in our view cannot complete the acquisition proceeding by following Section 9(3A) of the Land Acquisition Act, which has since been repealed. The State respondents in our view is now required to complete the acquisition proceeding by following the relevant provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013.
11. In the case of Santosh Kumar Patra (supra) on 21.09.2010 taking note of a categorical assertion that though in that case land was requisitioned way back in 1980-81, no compensation amount was ever awarded. Thereby taking note of Section 7A of the Act 2 of 1948, as inserted by amendment in 1996, and also amended provisions of Sections 9 (3A) and 9(3B) of the Act I 1894, the Co-ordinate Bench of this Court quoting the provisions held as follows:-
Sections 9(3A):- The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the West Bengal Land (Requisition and Acquisition Act, 1948 (West Ben. Act II of 1948) (hereinafter referred to in this section as the said Act), as re-enacted by the West Bengal land (Regulation and Acquisition) Re-enacting Act, 1977 (West Ben. Act XV of 1977), and in every such case, the provisions of sub-section (1) of section 4, section 5, section 5A, section 6, section 7 and section 8 of this Act shall be deemed to have been complied with:
Provided that the date of notice under this sub-section shall be the date of reference for the purpose of determining the value of such land under this Act:
Provided further that when the Collector has made an award under section 11 in respect of any such land such land shall, upon such award, vest absolutely in the Government, free from all encumbrances.
9(3B):- The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the said Act, and notice for acquisition of such land has also been published under sub-section (1a) of section 4 of the said Act, and, in every such case, the provisions of section 4, section 5, section 5A, section 6, section 7, section 8 and section 16 of this Act shall be deemed to have been complied with:
Provided that the date of publication of notice under sub- section (1a) of section 4 of the said Act shall be the date of reference for the purpose of determining the value of such land under this Act:
Provided further that in every such case, the Collector shall make an award under section 11 in respect of such land only for the purpose of payment of dues compensation to the persons interested in such land has, upon the Collector taking possession thereof, already vested absolutely in the Government free from all encumbrances."
There being no subsisting notice under Section 4 of the 1948 Act, the Land Acquisition Collector will now have to issue notice under Section 9(3A) of the Land Acquisition Act and complete the acquisition proceedings expeditiously as per the provisions of the said Act. Be it noted that the land of the petitioner having been utilized, there can be no question of restoration of the land to the petitioner in the condition in which it had been taken.
Having regard to the fact that possession of the land was taken in 1980, the acquisition proceedings shall positively be completed within six months from date by declaration of award at current market value. The petitioner may also claim compensation for having been deprived of possession, use and occupation of and income from the land in question from 1980 till date of issuance of notice under Section 9(3A).
12. The land acquisition authority having kept the L.A. proceeding incomplete despite taking over possession on November 22, 1983 for want of fund, and since after issuance of notice under Section 9(3B) in April 2005 there was no lack of persuasion from the end of the writ petitioner till 2014, and getting no result filing of this writ petition in 2015 seeking rule of mandamus with other reliefs cannot be said to have been hit by the principle of delay and laches.
13. In the case on hand the land of the petitioners accordingly is under possession of the State on and from November 22, 1983. The L.A. proceeding either under Act 2 of 1948 or Act I of 1894 admittedly having remained incomplete, such possession of the land of the petitioners is illegal, for which recourses are two, of course in the nature of either, or. Either the State shall have to revert back possession of the land to the petitioners by resorting to its original position at the cost of the State apart from paying damage for holding said land in illegal possession for such a long period, or alternatively to pay compensation only under the New Act of 2013. There is no other 3rd alternative in view of the fact of the case in hand. Definitely the land was taken away for public purpose. From the Clause no.2 some relevant extracts and Clause 18 of the "statement of objects and reasons" for enactment of such New Act of 2013(30 of 2013) are set out:-
Clause 2:- In order to streamline the provisions of the Act causing less hardships to the owners of the land and other persons dependent upon such land, it is proposed repeal the Land Acquisition Act, 1894 and to replace it with adequate provisions for rehabilitation and resettlement for the affected persons and their families.
Clause 18:- The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken.
In the case on hand though possession has been taken but award has not been passed. So the new law would apply for paying compensation on failure of the first alternative indicated above.
14. In the case on hand however when notice was issued on 27.04.2005, the same only may be the distinguishing feature from the case of Santosh Kumar Patra (supra). But, admittedly, consequent upon said notice in Form-9 the proceeding having remained incomplete for keeping all the rest works as undone, only breathing space for the respondents could have been available if they would further proceed to complete the same. In that event subject to all compliance State could have shown the forum under Section 18 of Act I, 1894 where except validity of the proceeding other available eventualities only could have been questioned. However, the respondent ultimately having not completed the proceeding under Act I, 1894 and the Act with its amendment having been its own creature to render administration of justice, the respondents now cannot hide under any technicality, which is also not acceptable in any proposition of law.
15. From another appeal preferred at the instance of the State of West Bengal against Somesubhra De (supra) MAT No. 1783 of 2015 its short fact and, observation of the Division Bench as available from paragraphs 7, 8, 9, 11 and 12 are set out:-
Paragraph 7:- A few facts necessary to dispose of the appeal are as follows:-
Pursuant to a notification issued under Section 4 of the West Bengal Land (Requisition and Acquisition) Act, 1948 the State took possession of the land owned by the Petitioner i.e. the respondent herein. No steps were taken by the Government of the State of West Bengal to determine the compensation under the aforesaid Act. There is no dispute that the aforesaid Act of 1948 had been enacted for a temporary period and has lapsed in 1997.
Paragraph 8:- No notification has been issued by the State under the Land Acquisition Act of 1894. Therefore after the lapsing of the Act of 1948 the State is in possession of the land owned by the respondent illegally and without payment of compensation. The land has been utilised for construction of the Link road from Kalna-Baidyapur to Akalpoush health Centre.
Paragraph 9:- Today admittedly no proceedings have been initiated under any Act for payment of compensation to the respondent. Aggrieved by this action of the State the respondent preferred the aforesaid Writ Petition. The learned Single Judge has accepted the contention of the respondent that the State must determine the compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The learned Single Judge has directed that since no award was passed pursuant to the notification issued under the Act of 1948, the Act of 2013 would be applicable for determining the compensation payable to the respondent. The Court has directed that the compensation must be determined under the Act and the concerned requiring body should be called upon to release the fund making payment to the respondent.
Paragraph 11:- In our opinion, the matter can be laid to rest by clarifying the order as follows:-
The State shall determine the compensation payable to the respondent by initiating proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. After the initiation of the proceedings under the aforesaid Act of 2013, compensation shall be determined and paid over to the respondent.
Obviously all the provisions of the 2013 Act must be scrupulously followed while determining the compensation.
Paragraph 12:- The State has been in possession of the respondents' property since 1982 without paying a single paise. We, therefore, direct the State to initiate proceedings immediately and in any case within two months from today. The Collector shall make an award within one year from the date of publication of the declaration under Section 19. This direction has been issued to avoid any further delay in payment of compensation to the respondent who has been illegally and unjustly deprived of his property since 1982.
(Emphasis supplied taking note of identicality in fact of the case on hand)
16. Mr. Sengupta, learned Additional Government Pleader with the language of Section 24 of the New Act, 2013 tried to impress upon that since the L.A. Case was never initiated under Act I of 1894 rather it was initiated under Act 2 of 1948, so the writ petitioners would not be entitled to get benefit of Section 24 or 26 etc. of the New Act, 2013. According to him, the petitioners would be governed under Section 11, 12 etc. of the Act I of 1894, and if the writ petitioner would have dissatisfaction then they would have to take steps under Section 18(1) of said Act. For better appreciation Section 18(1) is set out:-
Section 18(1):- Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
During foregoing discussion I have already indicated that under Section 18 of Act I, 1894 validity of an award, if any passed, or if not passed in a lapsed proceeding cannot be challenged under Section 18 of the Act. Only the four eventualities can be adjudicated under said reference proceeding without having any scope to question or challenge about any invalid or illegal award as a consequence of the proceeding itself being lapsed. In the case on hand nothing was happened. For want of fund proceedings could not be complete. So passing of award did not arise. Eventually Section 18 would have thereby no application.
17. The provisions from Sections 1 to 13 of the Act 2 of 1948 contained also scope of reference to Court for adjudication and power of the State to make rules. Mr. Sengupta in the tune of paragraph 2(f) of affidavit-in-opposition tried to submit that the rule is yet to be framed by the Government. If this submission is on instruction, the Court equally reacts to reject it in not accepting its slightest flavour.
Because if at the time of very inception of such Act 2 of 1948 its specific object was specified by putting flesh, bone and blood only to survive upto 31st March, 1997 and it suffered thereby from natural death w.e.f. 1st April, 1997, only legal interpretation can come that even if there was any L.A. Case proceeding "initiated" under Act 2 of 1948, but could not be complete till 31st March, 1997, the land losers of course for that reason cannot be deprived of because of its non- completion as also quoted from the State's affidavit-in-opposition in paragraph 2(e) "revival of proceedings could not also be completed due to lack of required fund and thereby further lapsed."
18. On February 7th, 2018, the writ petition 25(W) of 2014 has been dismissed specially on taking note of the case of State of Rajasthan and others Vs. D.R. Laxmi and others reported in (1996) 6 Supreme Court cases 445, as it was also cited from the side of KMDA and State also adopted it apart from relying on the case of State of West Bengal Vs. Niladri Chatterjee (supra). If a few lines be added on the basis of said case of D.R. Laxmi & Ors. (supra) as it was cited in another writ by the official respondents the respondent-state of the present case may not be prejudiced. In the said case of D.R. Laxmi & Ors. (supra) Their Lordships taking note of the fact of said case that even if hypothetically the L.A. proceedings was a nullity and void for some legal reason, once the land was vested in the State, inordinate delay and laches of the writ petitioner in approaching the Court was taken into account in allowing the appeal by setting aside the judgment of High Court by observing, "in this case award determining the compensation has attained finality." But in this case on hand as it has been held that the proceeding could not be complete so long Act 2 of 1948 was alive, or although the state attempted to revive it again under Act I of 1894. Reason was for lack of fund. Therefore the case of State of West Bengal Vs. D.R. Laxmi & Ors. (supra) taking note of which the writ petition 25(W) of 2014 has been dismissed on February 7, 2018 is held not applicable in view of facts and circumstances of the instant case.
19. Therefore, to my observations, even if the impugned L.A. case 60 of 1982-83 was "initiated" under Act II of 1948 but since it was not complete till 31st March, 1997, then in view of paragraph 2(e) of the affidavit-in-opposition there being further "initiation" under Act I of 1894 but the same also having not been completed, this Court, taking note of the clauses quoted above from statement of objects and reasons, held that provisions of new Act 2013 shall come into play. The word "initiation", on which Mr. Sengupta submitted to interpret under General Clauses Act, this particular word "initiation" ought to have a great bearing. Substituting sub-section (1) of Section 3 by West Bengal Act 8 of 1954 the provisions of the Act 2 of 1948 were virtually synchronised empowering the State to make rules to make other exigencies, if arose. But when the Act itself is abolished and became non-est w.e.f. 01.04.1997, question of framing any rule thereunder cannot arise and it did not happen also as admitted in para 2(f) in the affidavit-in-opposition. The State except registration of L.A. Case no. 60 of 1982-83 could not show any instance as proof of active initiation of the proceeding to show that said L.A. Case was proceeded with to compensate the land losers although the authority enacting the provisions of law on the subject sat over the same by continuing illegal possession for a long period from 1983.
20. Whenever such acquisition is initiated there shall be the date of reference. Such date of reference is required for the purpose of determination of the value of such land, said to be acquired, and the collector would make an award against the land which would vest absolutely in the State free from all encumbrance. At the other end, only due compensation is to be paid to the land losers. Therefore the word "initiation" of proceeding has a fruitful meaning in very wider sense. This initiation ought to have been crystallised or visualised for all practical purposes. In the instant case except the text made in paragraph 2(d) and (e) of the Affidavit-in-Opposition (supra) and copy of notice dated 27.04.2005 under Section 9(3B) of the Act I, 1894 produced by the petitioners, the state did not produce any document previous to that notice to show the stages of "initiation" of the proceeding under reference.
21. As Mr. Sengupta argued that since the L.A. proceeding was not initiated under Act I of 1894 the benefit of Sections 24, 26 etc. of the New Act would not be available in the case, it is very pertinent to mention that the Land Acquisition Act, 1894, known as Act I, 1894 is a Central Act. It therefore extends to the whole of India except the State of Jammu and Kashmir. Such Central Act came into force on 1st day of March, 1894 having also matching state amendments wherever it was necessary. The Act 2 of 1948 was the creature of the state for a stipulated period with a target. The Act I of 1894 being Central Act many of its provisions of said Act 2 of 1948 were kept similar. But the New Act 2013 again being a Central Act for being substituted in certain cases in respect of land acquisition process under Act I of 1894 deeming to have lapsed by operation of law would have nexus only with the previous Central Act I of 1894. But the said New Act can have no reference to the State Act like Act 2 of 1948. That is why the language of Section 24(1) of the New Act, 2013 speaks about its applicability if any case of land acquisition proceedings was initiated under the Land Acquisition Act, 1894 (Act I of 1894). In such a Central Act it is not expected that any venue would be kept open with reference to any State Act. To my understanding, had there been any such reference of State Act to keep its venue alive with any new Central Act it would be a simply mismatched provision. That is the reason of keeping the provisions of New Act, 2013 applicable keeping reference of the Act I of 1894 with its given language. For example, Section 24(1)(a)(b)and(2) except its proviso (since it may not be necessary) are set out:-
Section 24(1):- Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894(1 of 1894),-
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
22. In the case on hand admittedly physical possession of the subject property was taken over on 22.11.1983. Therefore sub-section (2) of Section 24 would not be available to the writ petitioners. Section 9(3A) and (3B) under which notice was served and for the purpose of payment of due compensation holding enquiry under Section 11 are all available in the Act I of 1894. In the case on hand such notice under Section 9(3B) was issued on 27.04.2005. Admittedly no award under Section 11 of such Act I of 1894 was ever made till this stage on completing the proceeding. Paragraph 2(c) (d) and (e) of the Affidavit- in-Opposition of the State are also sufficient to indicate the same. Therefore the L.A. case 60 of 1982-83 though initiated under the State Act 2 of 1948, and there being nothing on record to show any advancement of the same till expiry of the Act itself, and, issuance of notice under Section 9(3B) dated 27.04.2005 having been corroborated by the text of paragraph 2(e) of the Affidavit-in- Opposition (supra) it has been taken as granted that taking over the case under Act I of 1894 for further initiation also went in vain for lack of fund. In such circumstance the language of Section 24(1)(a) is very clear about applicability of the respective provisions of the New Act, 2013 when any award under Section 11 of the Act I 1894 would neither have been assessed, nor made, nor paid.
23. In view of above, the writ petition is allowed in terms of prayer (c) entitling the writ petitioners to get compensation in terms of Section 24 of the New Act, 2013 (30 of 2013) in lieu of the subject property and presuming some intervening formalities the Respondent nos.2 and 7 are directed to complete the entire exercise including handing over cheque of compensation award by determining it in terms of Section 26 of said New Act, 2013 with a period of six months from the date of communication of this order.
24. No order as to costs.
25. Urgent certified copy be supplied on priority basis if applied for.
(MIR DARA SHEKO, J.)