Calcutta High Court
The West Bengal Housing Board And Anr. vs The State Of West Bengal And Ors. on 9 March, 2005
Equivalent citations: (2005)3CALLT293(HC), AIR 2006 (NOC) 592 (CAL), 2006 (2) AJHAR (NOC) 592 (CAL), 2006 A I H C 922, (2005) 3 ICC 825, (2005) 36 ALLINDCAS 946 (CAL), (2005) 3 CALLT 293, (2005) 2 LACC 274, (2005) 36 ALLINDCAS 946
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
JUDGMENT Jayanta Kumar Biswas, J.
1. A short question of law has arisen in this writ petition by which the petitioners challenge an award made by the reference Court in an application under Section 18 of the Land Acquisition Act, 1894.
2. The land in question was acquired for the first petitioner. Persons aggrieved by the award made by the collector, as to the amount of compensation, filed the Section 18 application. The collector accordingly referred the matter for determination of the Court. In the reference proceeding before the Court neither the first petitioner was made a party, nor was it served with any notice of any nature. Only after receipt of notice from the assistant secretary of the State Government dated November 16th, 2004, it has come to learn about the award made by the reference Court increasing the amount of compensation. Correctness of these facts is not disputed by the parties.
3. Counsel for the referring claimants does not also dispute the legal position that the first petitioner had a right to participate in the reference proceeding and oppose the prayer for increase in the amount of compensation.
4. The only question for determination is: before which forum, and by initiating what proceeding, the petitioners can question the validity of the award dated June 15th, 2001.
5. While on the strength of the Apex Court decisions in Neelagangabai and Anr. v. State of Karnataka and Ors., , U.P. Awas Evam Vikas Parishad v. Gyan Devi and Anr. , Agra Development Authority v. Special Land Acquisition Officer and Ors., , and Abdul Rasak and Ors. v. Kerala Water Authority and Ors. , counsel for the petitioners argues that the-award can be questioned by filing an application under Article 226 of the Constitution of India, counsel for the referring claimants contends that the award being a deemed decree as stated by Section 26(2) of the Land Acquisition Act, 1894, the petitioners can challenge it, if at all, only by filing a civil appeal before this Court.
6. After considering the authorities cited to me, I am minded to agree with counsel for the petitioners that the petitioners can question the validity of the impugned award by filing a writ petition before this Court.
7. It seems to me that the Apex Court decision in Neelagangabai's case provides the full answer to the question before me. In that case in an almost similar situation, the corporation, for which the land in question had been acquired, challenged the award made by the reference Court in an application under Section 18, by filing a writ petition under Article 226 of the Constitution of India, and the Judgment and order of the High Court of Karnataka allowing such writ petition, and setting aside the award, was upheld by their Lordships holding that the award increasing the amount of compensation was liable to be set aside, as no notice of the reference proceeding had been given to the corporation.
8. I find that the Apex Court decision in U.P. Awas case also supports the contention of counsel for the petitioners. In para 25 of the report of that case their Lordships held, "the proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act."
9. In view of the above noted two Apex Court decisions, I have absolutely no doubt in my mind that since the reference Court increased the amount of compensation without giving the first petitioner any notice or opportunity to oppose the prayer for increase made by the referring claimants, the petitioners are entitled to question the validity of the award by filing this writ petition. To my mind, the fact that the remedy, of a civil appeal after special leave from this Court is also available to them, does not prevent them from challenging the award on the ground already noted, by filing a writ petition before this Court.
10. The other Apex Court decisions I am referred to by counsel for the petitioners do not need detailed discussion for the simple reason that in them the Apex Court held that the authority or person for whom the land is acquired has a right to get notice of the proceeding before the collector and also before the reference Court; and that in this case it is nobody's case that the first petitioner did not have a right to participate in the reference proceeding and also to get notice thereof.
11. Since on the admitted facts I find that the award was made by the reference Court without giving the first petitioner any opportunity of contesting the prayer for increase in the amount of compensation made by the referring claimants, in my view, the award must be set aside. It was clearly held by the apex Court in Neelagangabai's case that in such a case the reference Court must reopen the whole proceeding and determine afresh the questions after giving full opportunity to the authority or person for which the land is acquired. I think, I should give similar directions in this case.
12. For these reasons I allow the writ petition and set aside the impugned award dated June 15th, 2001 made by the reference Court in the Section 18 application.
13. I direct the reference Court to decide the Section 18 application afresh. It shall give a fresh decision after giving all the patties, including the first petitioner in this writ petition, notice of the proceeding. The first petitioner and the other parties will be free to place their respective cases and adduce evidence in support of their such cases. The reference Court shall ensure that the matter is disposed of as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order by it.
14. In the facts and circumstances of the case, I am not inclined to make any order for costs in favour of any of the parties: Hence there will be no order for costs in the writ petition.
All parties shall act on a signed xerox copy of this dictated order and also on a certified xerox copy thereof, both to be supplied urgently on the usual undertakings.