Calcutta High Court (Appellete Side)
Salil Kumar Daw & Anr vs State Of West Bengal & Ors on 6 April, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side.
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No.4502(W) of 2003
Salil Kumar Daw & Anr.
v.
State of West Bengal & Ors.
Mr.Bidyut Banerjee,
Ms.Shila Sarkar,
Mr.Arnab Roy. .. for the petitioners.
Heard on: April 6, 2011.
Judgement on: April 6, 2011.
The Court:- The petitioners in this art.226 petition dated March 17, 2003
are questioning a notice dated March 13, 2003 (at p.48) issued by the Collector,
Murshidabad under s.5A of the Land Acquisition Act, 1894.
By an order dated March 19, 2003 the respondents were directed "not to
give any further effect to the notice dated 13.3.2003 until further orders to be passed by this Court."
Stating that the lands in connection wherewith the notice dated March 13, 2003 was issued were likely to be needed for setting up of Murshidabad- Berhampore Settlement Office Headquarters, a notification under s.4 of the Land Acquisition Act, 1894 was published in the Calcutta Gazette on July 3, 1980.
Questioning the s.6 declaration published in the Calcutta Gazette on July 19, 1982 (at p.43) C.O.No.13378(W) of 1986 was filed under art.226. By an order 2 dated July 13, 1988 the Collector was directed to decide the s.5A objection afresh.
Questioning the award on the grounds that it was made without making the requisite s.6 declaration C.O.No.3497(W) of 1990 was filed before this Court under art.226. By an order dated April 12, 1999 the award was set aside.
By the order dated April 12, 1999 the following directions were given:
"I am of the view that after considering objection under section 5A the concerned Collector should have issued declaration under section 6 afresh even for technical formalities since this court desires the same was to be done so in the aforesaid manner. Therefore, I direct the concerned Collector to communicate the result of the hearing taken place considering the objection of the petitioners under Section 5A. After communicating his decision the concerned Collector will be at liberty to proceed from the stage of Section 6 of the said Act in accordance with law. The petitioners would also be at liberty to agitate all the points, if so advised. Thereafter the Land Acquisition Collector will finalise this order. This writ petition is allowed. There will be no order as to costs. Interim order of possession stands confirmed until this acquisition proceeding reached its finality either dropping or by passing lawful award."
The petitioners filed a suit (the plaint verified on April 28, 2000) in the Court of Civil Judge (Senior Division) at Berhampore, Murshidabad against the State and the Land Acquisition Collector seeking a declaration that the State was occupying the property as a tenant and a decree for rent arrears and other reliefs.
In para. 13 of the plaint they stated that after communicating the result of the s.5 hearing the Collector did not publish the requisite fresh s.6 declaration, and contended that, as a result, the s.4 notification lapsed.
In para. 18 of the written statement (verified on June 14,2001) the defendants in the suit the State and the Collector asserted that the order of this Court dated April 12, 1999 in C.O.No.3497(W) of 1990 was complied with.
3However, no case was stated that in terms of the order a fresh s.6 declaration was published within the statutory period.
In para. 10 of the opposition dated December 4, 2009 filed by the Collector to this petition it has been stated that in terms of the order of this Court dated April 12, 1999 the requisite s.6 declaration dated April 22, 2003 was published in the Calcutta Gazette on May 23, 2003.
It is, therefore, evident that before March 13, 2003 when the impugned notice was issued for hearing of s.5A objection the requisite s.6 declaration had neither been made nor published. The question is whether the declaration dated April 22, 2003 published on May 23, 2003 is lawful.
There is nothing to show that after April 12, 1999 the Collector was prevented by another order of any Court from hearing the s.5A objection and the State Government from making the requisite declaration under s.6.
In view of the provisions of s.6 and the fact that the s.4 notification had been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the State Government was required to make the s.6 declaration before expiration of three years from April 12, 1999.
The order was passed in presence of advocate for the State and the Collector. The admitted position is that the s.6 declaration was published after expiration of three years from April 12, 1999. The period of three years expired on April 12, 2002; and the Collector issued the impugned notice for s.5A hearing only on March 13, 2003.
Even in the face of the case stated in para. 13 of the plaint, the State and the Collector filing their written statement did not think it appropriate to make the s.6 declaration on or before April 12, 2002.
4I am, therefore, of the view that the petitioners are justified in saying that the impugned s.5A notice is without jurisdiction.
For these reasons, I allow the petition and order as follows. The impugned notice dated March 13, 2003 is hereby set aside. All subsequent steps including the s.6 declaration dated April 22, 2003 shall be deemed to be set aside and the proceedings initiated by publishing the s.4 notification shall be treated as lapsed by operation of law. No costs. Certified xerox.
(Jayanta Kumar Biswas,J).
sm.