Calcutta High Court (Appellete Side)
Gopa Banerjee & Ors vs State Of West Bengal & Ors on 15 September, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
WP 29606 (W) of 2015
with
CAN 396 of 2016
Gopa Banerjee & Ors.
Vs.
State of West Bengal & Ors.
For the writ petitioners/ : Mr. Jaydip Kar, Sr. Adv.
applicants Mr. Atish Ghosh
Mr. R. Basu Chowdhury
Mr. P.R. Sinha
Mr. Arindam Chandra
For the State : Mr. Kishore Datta, Ld. Advocate General
Mr. Jayak Kumar Gupta
For the respondent no.5 : Mr. P.S. Basu
Mr. Satyajit Talukdar
For the respondent no.6 : Mr. Debabrata Banerjee
Mr. Samir Kr. Chakraborty
Heard on: 05.02.2016, 18.03.2016, 22.04.2016, 29.04.2016,
10.06.2016, 29.07.2016, 24.02.2017, 17.03.2017,
05.05.2017 & 15.09.2017.
Judgement on: 15th September, 2017.
Biswanath Somadder, J.
Gopa Banerjee and several others have moved the instant writ petition praying, inter alia, for the following reliefs:
"a) Declaration that the land of the petitioners is not affected by acquisition under the Land Acquisition Act and the respondents have no right in respect of the said land-in-question;
b) Declaration that the impugned Award dated 31.12.1968 is a nullity and does not survive in view of the judgment of this Hon'ble Court dated 15th July, 1969 passed in C.R. No.6387 (W) 1968;
c) A declaration to the effect that the petitioners are the absolute owners of about undemarcated 1.81 acres of land out of the total area of 4.16 acres of land comprised C.S. Dag No.515, Khatian Nos. 92 and 142, Krishi Khatian No.418, L.R. Dag No.461, J.L. No.18, Mouza: Mahish Bathan, Police Station: Rajarhat, New Town, Bidhan Nagar (East);
d) A writ of and/or order and/or directions in the nature of Mandamus do issue commanding the respondents and each one of them, their men, agents, servants and/or assigns to do their statutory duties in accordance with law and to forbear from proceedings further or any further on the basis of the lapsed acquisition proceedings being no. 6706LA/4120-67, against the land belonging to the petitioners;
e) A writ or writs in the nature of Mandamus do issue commanding and directing the respondents to show cause as to why they should not be directed not to interfere with the ownership and possessory right in respect of the subject land and on failure to show cause or to show sufficient cause rule to be made herein be made absolute;
f) A writ of and/or order and/or directions in the nature of Certiorari do issue directing the respondents to certify and transmit before this Hon'ble Court, the entire records of the case so that conscionable justice may be done to the petitioners by quashing of transfers made to any of the Government Departments on the basis of the lapsed acquisition proceeding being no.6706LA/4120-67;"
According to the petitioners, they are the adjacent owners of a freehold land measuring approximately 1.84 acres in CS Dag No.515, Khatian Nos.92 and 142, Krishi Khatian No.418, LR Dag No.461, JL No.18 in Mouza - Mahishbathan, Police Station - Salt Lake Electronic Complex (previously Rajarhat). According to them, by several deeds of conveyance they purchased various portions of land from one Mr. Herbert Berry in Mouza - Mahishbathan. The petitioners have annexed the registered deeds of sale, which were all registered under the District Registrar, Barasat, on several dates, sometime in the year 1995. Referring to the recitals contained in the various deeds of sale, the petitioners have stated that on 11th July, 1963, Mr. Herbert Berry purchased the land by way of a registered deed from Sri Rabindra Nath Naskar, which measured more of less 3.64 acres. According to the petitioners, the said Herbert Berry subsequently, sometime in July, 1963, made an application before the JLRO, Barasat, 24-Parganas, for mutation of his name in respect of the said land, which was allowed. Before purchasing the land, the petitioners, in the year 1995, made searches in the office of the BL & LRO. The searches as to the title of the said property revealed a clear Parcha in favour of Herbert Berry. The petitioners received a notice on 11th April, 1997, issued by the Collector of North 24-Parganas to Upendra Nath Naskar as the purported owner of the scheduled land described therein, which included the land of the writ petitioners, asking him to show cause as to why the land mentioned in the schedule would not be acquired. In response to the said notice, the writ petitioners, including their adjacent owners, on 31st March, 1997, through their constituted attorney, wrote to the Collector and informed him about the private ownership, status and position of the property sought to be acquired under the said notice. It has been stated by the petitioners that they came to know of a memo dated 9th December, 1997, that RS Plot No.461 in Mouza - Mahishbathan, JL No.18 had partly fallen under acquisition vide LA Case No.XXV/1 of 1996-97 for Intelligent City Project. The petitioners approached the High Court challenging the order of acquisition and this Court passed an order on 19th June, 2000, whereby the Collector, North 24-Paganas, was directed to communicate the final decision, if any, in connection with LA Case No.XXV/1 of 1996-97 within a certain time-frame.
At the time of hearing of the instant matter, however, it has been submitted on behalf of the parties that the proceeding before the Collector, North 24-Parganas, was abandoned or dropped up. In this context, they have referred a letter dated 30th August, 2000, being Annexure "P-9" at page 216 of this writ petition.
Be that as it may, it has been stated by the petitioners that a person claiming to be a West Bengal Housing Infrastructure Development Corporation Limited (for short, 'HIDCO') officer on 3rd July, 2015, forcibly entered into the plot of land owned by the petitioners, wrongfully and illegally and put embedded demarcating stones on the private property despite serious objections being raised. The petitioners were compelled to lodge a police complaint with the Salt Lake Electronic Complex on 3rd July, 2015, itself. The petitioners have also stated that on 25th November, 2015, persons representing themselves as the employees of the respondent no.6 (HICDO) accompanied by its piling and civil contractors once again forcibly entered into the property belonging to the petitioners with piling equipment and accessories for the purpose of commencing piling in the petitioners' land despite serious objections being raised by the caretaker of the petitioners. Another complaint was lodged by the petitioners with the concerned police station on 25th November, 2015, and essentially in such facts and circumstances, they have approached this Court praying for such reliefs, as stated hereinabove.
During the course of hearing, a report in the form of an affidavit was called for and which was filed by the concerned Additional Land Acquisition Officer, who essentially stated that the plot of land belonging to the petitioners was acquired long ago in terms of a land acquisition proceeding, which was initiated sometime in the year 1956. Upon perusing the report in the form of an affidavit, this Court called for certain old records of this Court, including a writ petition being filed by Herbert Berry in the year 1969, being CR 24 (W) of 1969. The other records, which were also called for, being CR 6710 (W) of 1968, CR 7132 (W) of 1968, CR 36 (W) of 1969 and CR 317 (W) of 1969, were placed before the Court and copies were directed to be circulated amongst the learned advocates for the parties so that relevant records could be perused and would enable them to assist the Court at the time of final hearing. These records now reveal a fact situation, which was, perhaps, not even known to the writ petitioners at any material point of time prior to filing of the instant writ petition. The relevant facts are as follows:-
On 15th March, 1956, a notification under section 4 of the Land Acquisition Act, 1894 was published in the Calcutta Gazette in respect of a land measuring 27.91 acres in CS Dag No.515 corresponding to RS Dag No.461 of Mouza -
Mahishbathan, Police Station - Salt Lake Electronic Complex (previously Rajarhat). This notification covers the plots of land belonging to the writ petitioners. Herbert Berry purchased the land measuring around 3.64 acres by way of a registered deed on 11th July, 1963, from one Rabindra Nath Naskar. A declaration under section 6 of the Land Acquisition Act, 1894 was made in respect of the total land measuring 27.91 acres on 21st May, 1968. On 31st December, 1968, an award under section 11 was declared for the said land measuring about 27.91 acres, which included the land of Mr. Herbert Berry, being CS Dag No.515 corresponding to RS Dag No.461. On the same day, several notices under section 12(2) of the Land Acquisition Act, 1894 (each described as "Mimansa" notices) were issued to Herbert Berry wherein it was stated that the possession would be taken on 6th January, 1969. It was also stated in each of the notices that compensation amount as determined therein, could be collected by Herbert Berry on or before 6th January, 1969. It appears from the old records of this Court that Herbert Berry filed CR 24 (W) of 1969 on 6th January, 1969, praying for issuance of a Rule calling upon the respondents to show cause as to why a writ of or in the nature of mandamus and/or prohibition should not be issued, directing the respondents not to give effect to or take any action in pursuance of the several notices stated above and after hearing the parties make the Rule absolute or to pass such other or further order or orders as the Court would deem fit and proper. Pending hearing of the Rule, Herbert Berry prayed for an order of injunction restraining the respondents and/or their servants and/or agents from taking any action under the impugned notices and/or disturb and/or interfere with Herbert Berry's possession in respect of the property in question. The records further reveal that on 6th January, 1969, the matter was heard ex parte and the Court passed the following order:-
"Upon reading a petition of Mr. Herbert Berry and the affidavit of verification thereof dated 6.1.1969, and the exhibits or annexures to the said petition and upon hearing Mr. B.K. Ghosh, Advocate for the petitioner, It is ordered that a Rule do issue calling upon the opposite parties to show cause why a Writ in the nature of Mandamus should not be issued directing the opposite parties not to give effect to or take any action in pursuance of the impugned notices as referred to in the petition or Why a Writ in the nature of Prohibition should not be issued commanding the opposite parties not to give effect to the impugned notices.
There will be an interim order of injunction restraining the respondents from disturbing the petitioner's possession of the land pending the disposal of the Rule.
Liberty is given to the respondents to apply for variation or vacating the interim order of injunction upon notice to the petitioner. The Rule is made returnable six weeks hence."
On that very day itself, one Biswajit Ghosh, learned advocate of Herbert Berry, issued a letter informing him of the Court's order. The said letter on the same day was received by the concerned department, namely, the Land Acquisition Collector, 24-Parganas and an endorsement was immediately made by the concerned officer which can be seen from the original records that have been produced before this Court. The endorsement reads as follows:-
"Very urgent - Action would be taken after excluding the parties mentioned in the CR."
On 31st March, 1969, revenue deposit was made for the sums as stated in the several "Mimansa" notices which were issued to Herbert Berry. Significantly, the records reveal that Herbert Berry's writ petition was taken up for consideration on 11th June, 1969, when the following order was passed:-
"Learned advocate, Mr. Samaresh Banerjea, for the petitioner submits that his client will not proceed with the Rule. The Rule is accordingly discharged. No order as to costs.
All applications in connection with this Rule are disposed of."
Thereafter, on 30th June, 1983, the Executive Engineer, Salt Lake Reclamation Division, wrote a letter to the Collector, LA Department, South 24- Parganas, for giving possession. On 4th August, 1983, notice was given to all concerned erstwhile land owners - including Herbert Berry - for handing over possession in favour of the Collector. On 15th August, 1983, notice for taking over possession of the plots of land belonging to Herbert Berry was received by his authorised person and possession was taken over on 26th August, 1983, which is evident from the original records produced before this Court. It would thus be clearly evident that much after acquisition proceedings culminated in taking over possession of the plots of land in question, i.e., on 26th August, 1983, Herbert Berry executed the deeds of sale in favour of the petitioners herein which were registered with the District Registrar, Barasat, on different dates in the month of August, September and October, 1995.
During the course of hearing, the learned counsel for the petitioners had occasion to peruse all original records that clearly were not even in his clients' knowledge at the time of filing of the writ petition. He has referred to and strenuously argued that his clients' case is squarely covered by the decision dated 15th July, 1969, in CR 6387 (W) of 1968 rendered by B.C. Mitra, J.
Even a bare perusal of the judgement reveals that the same was in respect of CR 7132 (W) of 1968, CR 6710 (W) of 1968, CR 317 (W) 1969 and CR 36 (W) of 1969. The original records of the writ petitions referred to in the judgement and order dated 15th July, 1969, have been produced before this Court. The same reveals that the petitioners therein challenged the acquisition proceedings in respect of their respective plots of land, which were located in Mouza - Dhapa Manpur, which is not the area where the plots of land belonging to Herbert Berry are situated, i.e. Mouza - Mahishbathan.
As such, the said judgement cannot have any manner of application at all in the facts and circumstances of the instant case. That apart and in any event, since Herbert Berry himself had challenged the acquisition proceedings in CR 24 (W) of 1969 and that writ petition was withdrawn in terms of the order dated 11th June, 1969, Herbert Berry and/or his successors-in-interest cannot have any subsisting claim on the plots of land which were long acquired and possession whereof was taken over as far back as on 26th August, 1983. Undoubtedly, compensation could not be paid at the material point of time, i.e., on or before 6th January, 1969. The reason is, Herbert Berry had moved this Court and obtained an ex parte ad-interim order, the effect of which did not allow payment of compensation to be made to Herbert Berry at that material point of time. It was under such circumstances that the concerned authority had kept the money due and payable to Herbert Berry in terms of the several "Mimansa" notices - which were the subject matter of challenge in CR 24 (W) of 1969 - deposited in a revenue account on 31st March, 1969.
In this context, the learned advocate representing HIDCO has referred to a provision of the Executive Instructions - relevant at that point of time - which permits the concerned authority to keep such amounts deposited in a revenue account. The said provision is quoted hereinbelow:-
"94. Rule 10 of the Government rules contains instructions about payment. When the time has expired and no application for reference has been made, and when the Collector has been unable to make payment to the interested parties either locally or at headquarters, he will cause the amounts due to be paid into the Treasury as Revenue deposits payable to the persons to whom they are respectively due, and vouched for in Form E attached to Government rule No.10. He will at the same time issue notices in Form No.20 to the persons to whom payments are due. It is the duty of the Collector to make every endeavour to pay the parties himself and thereby save them the trouble of withdrawing their compensation from Revenue deposit."
It is palpably clear from the facts of the instant case that Herbert Berry was supposed to collect the compensation amount due and payable to him which were specified in six "Mimansa" notices on or before 6th January, 1969. Having moved the High Court and obtained an ex parte ad-interim restraint order on the same day, Herbert Berry could not possibly have been paid the amounts as specified in the "Mimansa" notices under section 12(2) of the Land Acquisition Act of 1894. This left the concerned authority with no option but to make the revenue deposit in terms of the Executive Instructions as quoted hereinbefore. As such, Herbert Berry would be deemed to have been compensated in accordance with the relevant provision of law and his successors-in-interest cannot lay stake for further or fresh compensation in accordance with the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The contingencies as provided under section 31 of the Land Acquisition Act, 1894, for depositing payment of compensation in Court cannot be said to be applicable in the facts of the instant case since revenue deposit was duly made on 31st March, 1969, i.e., during the subsistence of the order of the Court dated 6th January, 1969 passed in CR 24 (W) of 1969. This ex parte ad-interim order, in effect, restrained the concerned authority to give any effect or take any action in pursuance of the notices, being the six "Mimansa" notices, which were issued to the writ petitioner, Herbert Berry, being the predecessor-in-interest of the writ petitioners herein.
The judgements which were referred to and relied upon by the respective parties during the course of hearing of the matter have no manner of application at all in the peculiar facts and circumstances of the instant case.
In such circumstances as stated above, the writ petitioners are not entitled to such reliefs as prayed for.
The writ petition, being WP 29606 (W) of 2015, along with the connected application for injunction is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) PP .