Calcutta High Court (Appellete Side)
Kaberi Hazra vs State Of West Bengal & Ors on 6 June, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
June 6, 2018
ARDR
WP 7004 (W) of 2018
Kaberi Hazra
Vs.
State of West Bengal & Ors.
Mr. Ashis Kumar Sanyal, Sr. Adv.,
Mr. Sumitava Chakraborty,
Mr. Shatanik Chakraborty,
... for the petitioner
Mr. Tapan Mukherjee. Ld. Addl. Govt. Pleader,
Mr. Manas Kundu
Mr. Saikat Chatterjee
... for the State
Certain inadvertent typographical errors crept into the order dated May 25,
2018 when this matter was moved during the vacation Bench. This pertained to
the submissions made by the learned senior counsel appearing for the petitioner
and I have satisfied myself from the records that the submissions made by the
learned senior counsel were in fact wrongly recorded in the order of this Court.
The matter has come up as "To Be Mentioned" today and the learned
senior counsel appearing for the State being the learned additional Government
Pleader assisted by Mr. Manas Kundu has submitted that a formal application
ought to have been made.
However, as a Court of record, exercising powers under Article 215 read
with Article 226 of the Constitution of India, it is my duty to keep the records in
this Court free from inadvertent errors especially when I am satisfied that the
errors are typographical, clerical and wholly in advertent.
Accordingly, let the order dated May 25, 2018 be corrected as follows:
2
The 2nd paragraph of the order shall read as follows:
"Mr. Sanyal, learned advocate appearing for the writ petitioner along with
Mr. Sunil Kumar Chakraborty and Mr. S. Chakraborty submits that he
purchased a land in 1990. This was about 0.08 decimal out of 23 decimals. Such
23 decimals of land were not acquired at the time of purchase. This land is part
of a larger plot of land measuring 1.12 acres. He submits that he was not aware
that any part of this land as was purchased by him in 1990 was acquired at the
time when he purchased it. He would not have known of it also, if the
Respondent State of West Bengal had not proceeded against his client under
Section 4C (5) of the West Bengal Land Reforms Act, 1955. He moved against it before he jurisdictional Land Reforms and Tenancy Tribunal. At that time it was disclosed that this involved acquisition of land under the Act of 1894. It was disclosed that the acquisition was made in 1994-95. So his case was dismissed by the Learned Tribunal".
In the 2nd paragraph of the 2nd page of the order sheet, the page number of the Section 6 notification should be read as 67 instead of 65.
The Dag no. 4561 as given out as 45/61, it should be read as 4561 in the 5th and 6th lines of the 2nd paragraph of page 2 of the order sheet dated May 25, 2018.
In the 1st paragraph of page 5 the sentence starts with "The interim order ............ is earlier" in place of petitioner it should be read as petition.
However, these corrections do not affect the merits of the order. 3 Hence, I must overrule the objection of Mr. Mukherjee and allow these corrections at the To Be Mentioned stage.
Let the above corrections be incorporated in the order dated May 25, 2018 and a fresh order sheet typed out which shall be signed as of current date, but with effect from May 25, 2018 requiring formal corrections/amendment of the order dated May 25, 2018.
The order dated May 25, 2018 shall be retained in the records for historical purposes.
However, for the sake of convenience of all concerned, the order dated May 25, 2018 is hereby reproduced below:
"The writ petition is moved on service. The State of West Bengal is represented. Let the affidavit of service be kept on record.
Mr. Sanyal, learned advocate appearing for the writ petitioner along with Mr. Sunil Kumar Chakraborty and Mr. S. Chakraborty submits that he purchased a land in 1990. This was about 23 decimal. This land is part of a larger plot of land measuring 1.12 decimals. He submits that he was not aware that any part of this land as was purchased by him in 1990 was acquired at the time when he purchased it. He would not have known of it also, if the Respondent State of West Bengal had not proceeded against his client under Section 4C of the West Bengal Land Reforms Act, 1955. He moved against it before he jurisdictional Land Reforms and Tenancy Tribunal. At that time it was disclosed that this involved acquisition of land under the Act of 1884. It was 4 disclosed that the acquisition was made in 1994-95. So his case was dismissed by the Learned Tribunal".
He submits that it would be clear from the Section 6 notification appearing at page 65 of the writ petition that the portion of land notified by the Government to have been acquired is 0.705 acres equivalent to around 70 or 83 decimal in Dag No.46/51 but it was not demarcated which portion is being taken and only the word "middle' has been indicated by using abbreviation '-Do-'. He submits that if he purchased land in 1990 any acquisition which takes place in 1994-95 of only a part of the land from the whole, then he is entitled to notice of demarcation before the land was taken away.
On the other hand Learned Additional Government Pleader Mr. Tapan Mukherjee, assisted by Mr. Manas Kundu, Mr. Saikat Chatterjee and Mr. Ujjal Chatterjee, submits that from an authenticated map of the mouza it is very clear that Dag nos.5651 is a four sided plot and there is a Pink mark running from the middle of the mouza clearly de-limiting that the part which is shaded with Pink and which is also at the middle of the dag has been acquired. He refers to the schedule under Section 9 of the Act I of 1894 showing that at the time of demarcation the husband of the writ petitioner was present and signed. This appears to be a verified schedule in terms of the rules and he submits that Form 13A showing at Item No.43 that one Kaberi Hazra was paid compensation for acquisition of land by a account payee cheque. However, it is difficult to make out any signature acknowledging that Kaberi Hazra has received this amount and Mr. Sanyal submits on instruction that there papers were not produced 5 before today even though this the second round of litigation. The documents referred to by the Learned Tribunal are not these.
The learned advocates are at issue as to whether these documents have been produced before or not. This cannot be heard without exchange of affidavits and production of all records. Once affidavits are called for and the records are produced by the State of West Bengal, the matter will have to be heard. Now Mr. Mukherjee submits that the land has already been handed over to the Metro Railways and only because of the earlier order of the Learned Tribunal the work has been stopped. If the writ court continues any stay, then public money and public infrastructure will be jeopardised for private interest. If indeed it is not possible for the respondents to establish without disclosing records that the writ petitioner was aware of the demarcation and the acquisition of the present land then whatever copies have been shown by the respondents from the Bar cannot be believed against a verified petition accompanied by affidavit. None of the documents produced before me is a certified copy which alone bear the imprimatur of a public document or an admissible copy of a private document where it is maintained by the State. Accordingly, without affidavits I have to accept Mr. Sanyal's client's verified statement to be true as of date. Hence, there shall be an interim order of status quo restraining the parties to this writ petitioner from proceeding any further with the acquisition. This is in fact the form of the relief as prayed for by the writ petitioner as an interim relief. The Metro Railways are not parties to the present writ petition. 6
The Division Bench order which was placed before me at page 60 of the writ petition Annexure "P-9" was in respect of the proceeding before the Land Reforms & Tenancy Tribunal and cannot bind the writ court in the challenge to the acquisition proceeding under the Land Acquisition Act, 1894, however, belated. In fact no order was passed by the Hon'ble Division Bench precisely because till then there was no challenge to the acquisition proceedings.
Affidavit in opposition shall be filed within three weeks after reopening of the Court. Reply, if any, within one week thereafter. The Matter is to appear on 25th June, 2018 before the appropriate Bench. The interim order shall continue till disposal of the writ petitioner or further order whichever is earlier.
I make it clear that all the findings as above are tentative and subject to the final decision of this Court".
(Protik Prakash Banerjee, J. )