Calcutta High Court (Appellete Side)
Smriti Bikas Das & Ors vs The State Of West Bengal & Ors on 2 April, 2013
1
02.04.2013
ad & sd
Sl. No.6
W.P 18149(W) of 2010
Smriti Bikas Das & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Jayanta Kumar Pain
......... For the petitioners
Mr. Tapan Kumar Mukherjee,
Mr. Nilotpal Chatterjee
......... For the State
Md. Mamud
......... For the respondent no.12
The petition has been filed by way of Public Interest Litigation praying for the relief that respondent no.12 and his men and agents be restrained from making illegal and unauthorised construction on the scheduled acquired land.
It is averred in the petition that the land acquisition proceedings were undertaken under the Land Acquisition Act in the year 1970. It is also averred in the petition that the land in question was acquired with other lands by the Government of West Bengal in favour of Highway Division, Hooghly. Compensation was determined 2 at the rate of Rs.391.50 p. per estimated area but it was not collected by Sukumar Das and his family members and they raised a dispute. Certain land was relinquished on 27.08.1982 in favour of Jagannath Adak. The scheduled area was excavated for broadening and elevating the Singur-Masat Village Road. It is alleged that the scheduled land became a tank and village people used the water of the said tank, which is acquisitioned property. 14 Satak land has been obtained by respondent no.12 by a sale deed dated 09.11.2009 from respondent no.13 and 14 and a copy of the said sale deed has been filed and annexed with the petition.
A mass petition was filed as illegal construction was being raised by respondent no.12. However, no action had been taken. Aggrieved thereby, the petition has been preferred.
Respondent no.4 has filed affidavit-in-opposition contending that only portion measuring about 0.03 acres of plot of land was relinquished in favour of Jagannath Adak. However, the land in question belongs to the State Government. Recommendatory letter was sent but the land has not been relinquished so far. 0.10 decimal of the land has not been relinquished so far. The plot of land had been acquired in the year 1970. The award was passed on 25th February, 1994. Compensation was declared. None of the owners of land collected the compensation though it was determined. However, no relinquishment of the land in question has been made by the 3 government and the transfer of the land by respondent nos.13 and 14 in favour of respondent no.12 was illegal and void. Respondent no.12 unauthorisedly has erected the pucca construction by making encroachment on the government land.
Affidavit-in-opposition has been filed by respondent no.12 contending that before purchasing of the land in question, he made a search from the concerned Singur Block Land & Land Reforms Officer, on 21.07.2009, the land had been duly recorded in the name of vendors being respondent nos. 13 and 14, as such, he has purchased the land. In order to verify whether the land had been acquired an application was filed but no reply was received. Representation dated 23.10.2009 was filed in this regard to respondent no.2. Respondent nos. 13 and 14 were recorded as owners. Name of the State Government had not been mutated. After obtaining the permission from the Panchayat authorities, construction had been started. Due to personal grudge, the application has been made by the petitioner and it was filed by way Public Interest Litigation which is not maintainable. There were several other incumbents also who have raised construction and are necessary parties to the petition. The land is a bastu land. In the rejoinder, the facts have been controverted by the petitioner.
Learned counsel appearing on behalf of the petitioner has submitted that land was acquired way back on 30.07.1970 and the 4 award was passed on 25.02.1994. He also submitted that the vendors applied for relinquishment of the land but relinquishment of the land has not been made, thus, the respondent nos.13 and 14 have no right to sell to the respondent no.12. He further submits that the sale deed is illegal and void and no alienable right, title and interest is available to respondent nos. 13 and 14 after the land had been acquired way back in the year 1970. He further submits that possession had been taken in the year 1970 by the State Government and compensation has been determined for the land in question. Thus, construction raised is unauthorised and required to be ordered to be dismantled.
Learned counsel appearing on behalf of the State has submitted that possession had been taken for the land in question though award was not passed with respect to the land in question. However, relinquishment of the land has not been made. Since possession has already been taken, there was no right to make alienation available to respondent nos. 13 and 14 in favour of respondent no.12. Thus, sale deed is illegal and void and construction has been raised unauthorisedly.
Learned counsel appearing on behalf of respondent no.12 has submitted that the award has not been passed with respect to the area in question and the relinquishment has been sought for and the application is pending for consideration by the State 5 Government. The respondent no.12 is a bona fide purchaser for valuable consideration. As the name of the State Government had not been mutated in respect of the land in question, respondent no.12 purchased the land under impression that the land in question had not been acquired. He has further submitted that possession remained with the owners of the land, i.e. respondent nos.13 and 14 and it has been handed over to respondent no.12. Thus, petition filed cannot be said to be bona fide or in public interest. The State ought to have decided in respect of the relinquishment of the land particularly when award had not been passed. It was also submitted by the learned counsel that .04 decimal of the land has not been acquired by the State Government at all. Learned counsel appearing on behalf of respondent no.12 relied upon a decision of Supreme Court in Prahlad Singh & Ors. vs. Union of India & Ors., reported in (2011)5 SCC 386.
Upon hearing the learned counsel for the parties we find that the acquisition was made under the provisions of West Bengal Land (Requisition & Acquisition) Act, 1948. Notice was issued on Sukumar Das on 21.05.1970. Possession had been taken by the State Government and the land which was subject matter of such acquisition under the Act 2 of 1948 was acquired on 30th July, 1970 and the award was passed on 25.02.1994. Possession of 0.10 acre of land with respect to which award had not been passed had been 6 taken possession of as per the strength of the acquisition on 13th July, 1970. Documents with respect to the acquisition had been placed on record. Gazette Notification dated 22nd June, 1978 has also been placed on record. It is an admitted fact that respondent nos.13 and 14 had applied for relinquishment of the land to the extent of 0.10 acre but the same has not been relinquished by the State Government. There is absolutely nothing to doubt that the State Government had taken possession of the land which was the subject matter of the acquisition on 30th July, 1970. It was not open to the respondent nos.13 and 14 in absence of the relinquishment being made in their favour by the State Government to alienate the land to respondent no.12. The construction raised by the respondent no.12 was entirely unauthorised being on the land which had been acquired by the State Government and was subject matter of the notification issued though award has not been passed with respect to .10 acre thereof. It is open to the owner to take appropriate proceedings in this regard.
In the aforesaid decision cited on behalf of respondent no.12 the possession had not been taken. However, in the instant case the possession of the land had been taken. In the instant case there are documents to show that State Government has acquired and taken possession of the land. Thus, the aforesaid decision has no application in the facts and circumstances of the instant case. 7
Submission was made by the learned counsel appearing on behalf of respondent no.12 that respondent no.12 is a bona fide purchaser for valuable consideration. However, the averments made in the affidavit-in-opposition by respondent no.12 indicates that he was aware of the factum of acquisition of the land. As such, he had applied for obtaining land, which had been acquired in the absence of representation being replied to. It was incumbent upon respondent no.12 to make further enquiry with respect to notification, which was issued and published in the official gazette amounting to public notice thereof. Gazette notification had been made in the year 1984 and hence it cannot be said that respondent no.12 had made due enquiry or that he was bona fide purchaser for valuable consideration. As per the petition relinquishment of the land had not been made so far.
We are not inclined to accept the submission raised by the learned counsel appearing on behalf of respondent no.12 that valid title was obtained by respondent no.12 in the factual matrix of the case. Thus, we have no hesitation to hold that respondent no.12 has raised construction unauthorisedly. In case any other construction has been raised on the acquired land, we direct the respondent to take steps in accordance with law. We also direct the respondents to remove the construction unauthorisedly raised by respondent no.12 with the assistance of respondent nos.13 and 14.
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Writ petition is allowed to the aforesaid extent. No order as to costs.
In view of the aforesaid order, the application being CAN 3707 of 2011 is also disposed of.
Let this order be implemented within a period of three months from today.
(Joymalya Bagchi,J.) (Arun Mishra, Chief Justice)