Calcutta High Court
State Of West Bengal And Ors. vs Gopal Krishna Das Adhikary And Anr. on 14 June, 2007
Equivalent citations: 2007(3)CHN708, AIR 2007 (NOC) 2189 (CAL.)
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, C.J.
1. This appeal has been filed against the order of the learned Single Judge in W. P. No. 14946(W) of 2005 (Gopal Krishna Das Adhikary v. State of West Bengal and Ors.) decided on 5th June, 2000.
2. We may briefly notice the facts leading to the filing of this appeal. Acquisition proceedings were initiated for acquiring the land of the petitioners under Section 27 of the West Bengal Industrial Infrastructure Development Corporation Act, 1974 (hereinafter referred to as the 'Act'). The acquisition was for the benefit of Haldia Development Authority, the 5th respondent in the writ petition. The Collector after following due procedure made the Award on 10th April, 1997. Possession of the land was taken by the respondents on 8th May, 1998. It is not disputed that the Collector has paid the amount of compensation to the petitioner in two instalments on May 23, 2005 and July 6, 2005. In all a sum of Rs. 3,22,041/- was paid to the petitioner. This amount, however, did not include any interest. Aggrieved by the action of the Collector in not paying any interest on the compensation, the petitioner filed writ petition being W. P. No. 1628(W) of 2003. This writ petition was, however, disposed of on 17th March, 2003 with a direction to the Collector to examine the question whether the possession of the land had been taken without making payment of the compensation. The petitioner had also initiated contempt proceeding for non-payment of interest. This proceeding was also disposed of giving liberty to the petitioner to initiate original proceeding regarding the claim for interest in terms of provisions under Section 33 of the Act. The petitioner, therefore, filed the present writ petition. After hearing the learned Counsel for the parties, the learned Single Judge has allowed the writ petition with a direction to the State Government to pay interest to the petitioner in terms of provisions contained in Section 33 of the Act within six weeks from the date of receipt of the copy of the order. Hence, the present appeal by the State.
3. Learned Counsel for the appellants has submitted that the learned Single Judge has committed an error of law in holding that the possession of the land could not be taken without payment of compensation. In support of the submission the learned Counsel has relied on the provisions of Section 27 of the Act.
4. We have considered the aforesaid submission. For facility of reference it would be necessary to reproduce the relevant provisions contained in Section 27 of the Act as under:
27. Acquisition of land.- (1) If at any time, in the opinion of the State Government, any land is required by it for the purpose of development by the Corporation or for any other purpose in furtherance of the objects of this Act, the State Government shall serve a notice upon the owner of the land and any other person who, in the opinion of the State Government, may be interested therein, to show cause, within such time as may be specified in the notice, why the land shall not be acquired:
Provided that nothing in this Sub-section shall apply to land belonging to the Union of India.
(2) After considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.
(3) If the State Government decides to acquire the land, it shall publish in the Official Gazette a notice specifying the particular purpose for which such land is required and stating therein that the State Government has decided to acquire the land.
(4) When a notice under Sub-section (3) is published in the Official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances.
(5) Where any land is vested in the State Government under Sub-section (4), the State Government may, by notice, order any person who may be in possession of the land to deliver possession thereof, within thirty days of the service of the notice, to the State Government or any person duly authorized by it in this behalf.
(6) If any person refuses or fails to comply with an order under Sub-section (5), the State Government may take possession of the land and may for that purpose use such force as may be necessary.
(7) Where the land has been acquired in the aforesaid manner for the purposes referred to in Sub-section (1), the State Government shall, after it has taken possession of the land,-
(a) where the Corporation pays the amount of compensation determined under Section 28 and other charges incurred by the State Government in connection with the acquisition, transfer the land to the said Corporation for the purpose for which the land had been acquired, or
(b) where the Corporation does not propose to pay the aforesaid compensation and charges, hand over possession of the land to the Corporation for the purpose for which it has been acquired.
5. A perusal of the aforesaid provisions would clearly show that the section provides he entire scheme to be followed by the State Government or the requiring body for acquiring the land, It is not in dispute before us that the land would vest in the State Government, once the acquisition proceeding are duly published in the Official Gazette by giving a notice specifying the particular for which such land is required. The State Government is also required to state that it has decided to acquire the land. Under Sub-section (4), once the notice under Section 3 is published, on and from the date of such publication the land would vest absolutely in the State Government free from all encumbrances. In case any of the land owners or person in possession of the land refuse to deliver possession thereof within thirty days of the service of notice, the State Government would have the power to take possession forcibly. All the aforesaid steps have undoubtedly been taken by the Government. Sub-section (7) makes it abundantly clear that once the land had been acquired in the aforesaid manner, the same is to be handed over to the authority for the benefit of which the land had been acquired. Section 28 of the Act, which is as under, deals with the manner in which the compensation is to be determined:
28. Compensation.-(1) Where any land is acquired by the State Government under this Chapter, the State Government shall pay for such acquisition compensation the amount of which shall be determined in accordance with the provisions of this section.
(2) Where the amount of compensation has been determined by agreement between the State Government and the person to be compensated, it shall be determined in accordance with such agreement.
(3) Where no such agreement can be reached, the State Government shall refer the case to the Collector for determination of the amount of compensation to be paid for such acquisition, as also the person or persons to whom such compensation shall be paid.
(4) Before finally determining the amount of compensation, the Collector shall give an opportunity to every person to be compensated to state his case as to be amount of compensation.
(5) In determining the amount of compensation, the Collector shall be guided by the provisions contained in Section 23 and Section 24 of the Land Acquisition Act, 1894.
(6) For the purpose of determining the amount of compensation-
(a) the Collector shall have power to require any person to deliver to him such return and assessments as he considers necessary;
(b) the Collector shall also have power to require any person known or believed to be interested in the land to deliver to him a statement containing, as far as may be practicable, the name of every other person having any interest in the land as co-owner, mortgagee, tenant or otherwise, the nature of such interest and the amount of the rents and profits (if any) received or receivable on account thereof for three years next preceding the date of the statement.
(7) Every person required to deliver a return, assessment or statement under Sub-section (6) shall be deemed to be legally bound to do so within the meaning of Section 175 and Section 176 of the Indian Penal Code.
(8) The Collector may hear expert witness if he considers it necessary to do so in any particular case.
(9) The Collector or any officer authorized by him in this behalf shall be entitled to enter upon and inspect any land which is subject of proceedings before him.
(10) The Collector shall dispose of every case referred to him under Sub-section (3) for determination of compensation as expeditiously as possible and in any case within six months from the date of receipt of the reference from the State Govermnent.
(11) The Collector shall determine the amount of costs incurred in any case disposed of by him under this section, and by what persons and in what proportions they are to be paid.
6. This section provides that the State Government shall pay the compensation for the acquired land. The amount of compensation shall be determined in accordance with the provisions of this section. Sub-section (2) provides that the compensation can be determined by agreement between the State Government and person to be compensated. In case there is no agreement, the State Government shall refer the case to the Collector for determination of the amount of compensation and the person/persons to whom such compensation shall be paid. Before determination of the compensation notices are required to be issued and opportunity of hearing is to be given to every person who may be entitled to receive the compensation. In determining the compensation, the Collector is to be guided by the provisions of Section 23 and Section 24 of the Land Acquisition Act, 1894. Undoubtedly the proceedings under Section 28 were also taken in accordance with the aforesaid section.
7. It would now be appropriate to notice Section 31 which is as under:
31. Payment of compensation.-(1) Where the amount of compensation is determined by agreement, the State Government shall pay such amount to the person or persons entitled thereto.
(2) Where the amount of compensation is determined by the Collector under the provisions of Section 28, the State Government shall tender payment of the compensation determined to the persons entitled thereto according to such determination and shall pay to them unless prevented by one or more of the contingencies mentioned in Sub-section (3).
(3) If the persons entitled to compensation according to the decision of the Collector do not consent to receive it, or if there be no person competent to alienate the land or if there be any dispute as to the title to receive the compensation, the State Government shall deposit the amount of the compensation, so determined, in the Court:
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount of compensation:
Provided further that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation determined under this Chapter, to pay the same to the person lawfully entitled thereto.
8. A perusal of this section would show that where the amount is determined by agreement, the State Government shall pay such amount to the person or persons entitled thereto. Sub-section (2) directs that the State Government shall pay compensation determined to the persons entitled thereto unless prevented by one or more of the contingencies mentioned in Sub-section (3). In the present appeal it is Sub-section (3) which is the bone of contention between the parties. It would, therefore, be appropriate to reproduce Section 31 Sub-section (3) for facility of reference as under:
31(3)- If the persons entitled to compensation according to the decision of the Collector do not consent to receive it, or if there be no person competent to alienate the land or if there be any dispute as to the title to receive the compensation, the State Government shall deposit the amount of the compensation, so determined, in the Court.
9. A perusal of the aforesaid provision would clearly show that in case the person entitled to receive the compensation does not consent to receive it, the State Government shall deposit the amount of the compensation so determined in the Court.
10. In the present case it is not disputed that notices were duly served on the petitioner for receipt of the compensation. In fact the learned Single Judge after examination of the facts situation has come to the conclusion that the process server concerned tendered the notice to the persons in whose favour the award was made. In the face of the report of the process server, the objections raised by the petitioner that the notices were not tendered have been rejected. The findings given by the learned Single Judge is that it cannot be said that no attempt was made to pay the amount before taking the possession. Learned Counsel for the appellant submitted that the amount was not deposited in the Court as there was no clear cut refusal by the petitioner to receive the compensation.
11. We are unable to accept the aforesaid submission. Section 31 Sub-section (3) is quite clear that once the compensation is not received by the person entitled to receive the same, it shall be deposited in the Court. The use of the term "shall" is a clear indictor that the provision is mandatory. There is no contingency under which the amount can be deposited with the treasury. We are unable to accept the submission of the learned Counsel that merely because of the refusal to accept the compensation expressly the State could come to a conclusion that the petitioner may still come forward to receive the compensation. Once the amount had been tendered and it has not been collected by the petitioner, the only course open to the State was to deposit the amount in Court.
12. Section 33 of the Act provides as under:
33. Payment of Interest.-When the amount of such compensation is not paid or deposited on or before taking possession of the land, the State Government shall pay the amount of compensation determined with interest thereon [in accordance with the provisions of Section 34 of the Land Acquisition Act, 1894].
13. This section clearly provides for payment of interest in case of delayed payment.
14. Admittedly the amount was not deposited in Court and was in fact paid by the Collector in two instalments on 23rd May, 2003 and July 6, 2005. Clearly, therefore, the petitioner was entitled to receive interest as provided under Section 33 of the Act. We find no error or infirmity in the judgment of the learned Single Judge.
15. Let the amount be now paid within six weeks from the date of receipt of the certified copy of this order. The amount which has already been paid pursuant to the interim order dated 17th March, 2003 shall be adjusted from the amount which is finally due and payable to the petitioner as interest. The aforesaid amount shall be released to the petitioner forthwith.
16. With the above observation the appeal is dismissed. There will be no order as to costs.
17. Urgent xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties.
D.P. Sengupta, J.
18. I agree.