Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Islam Ali Molla on 21 July, 2015
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
43, 21.07.2015
44,
46
AKB MAT 1093 of 2015
+
CAN 6928 of 2015
+
CAN 6929 of 2015
The State of West Bengal & Ors.
Versus
Islam Ali Molla
WITH
MAT 689 of 2015
+
CAN 6105 of 2015
+
CAN 6102 of 2015
The State of West Bengal & Ors.
Versus
Satyendra Nath Mondal & Ors.
WITH
MAT 688 of 2015
+
CAN 6107 of 2015
+
CAN 6103 of 2015
The State of West Bengal & Ors.
Versus
Ahammad Safui
Mr. Sushovan Sengupta
Mr. Subir Pal
... for the appellants
Mr. Amit Kr. Pan ... for the respondents
Prayer for condonation of delay of 287 days in CAN 6928 of 2015 and delay of 229 days in CAN 6105 of 2015 and delay of 128 days in CAN 6107 of 2015 though opposed by Mr. Pan has been allowed by us so that the matters can be disposed of on merit. 2 These three appeals are directed against a common judgment and order dated 12th September, 2014. The impugned order is very brief and appears to have been passed by consent of the parties as it would appear from the order itself which is quoted hereinbelow:-
" M r. Pan, learned Counsel appearing for the petitioner submits the land of the petitioner was acquired and utilised in 1978 by the respondents for their own purpose. But no award was passed, no compensation was paid.
Mr. Pan submits let there
be a direction upon the
respondents to assess the
compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Mr. Mondal, learned Counsel led by Mr. Dutta, learned Senior Counsel appearing for the State submits that his client requires six months' 3 time to assess the compensation amount under the new Act of 2013 and to pay the same. Considering the submissions made by the learned Counsel appearing for the parties. Six months' time is too long time to assess and make payment.
Accordingly, this writ petition is disposed of with a direction upon the respondents to assess the compensation money under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and to pay the same by two months from the date of communication of this order. "
Mr. Sengupta, learned Advocate appearing for the State/appellant assailed the impugned order by the following submissions:
a) That the land in question was acquired under the provisions of Section 4(1a) of the West Bengal Land (Requisition and Acquisition) Act, 1948 which provides as follows:4
" 4 ...........
[(1a) The State Government may acquire any land requisitioned under section 3 by publishing a notice in the Official Gazette that such land is required for a public purpose referred to in sub-
section (1) of section 3.] "
Under Section 7A of the said Act, the Collector was obliged to make an award within a period of three years from the date of publication of the notice under sub- Section (1a) of Section 4 of the 1948 Act which was not done in this case. As a result, the notice under sub- Section (1a) of Section 4 lapsed.
Mr. Sengupta contended that omission to pass an award cannot entail nor can the same result into the lapse of the notice under sub-Section (1a) of Section 4 of the 1948 Act. He in support of his submission relied upon a judgement of the Apex Court in the case of S. P. Jain Vs. State of U. P. reported in AIR 1993 SC 2517 wherein, he contended considering a pari materia provision of the Land Acquisition Act of 1894 the Court held that land vests in the State and cannot revert to the owner. The judgment does not help the appellant because even in that case the Apex Court directed payment of compensation.
5
Mr. Sengupta contended that State is, in fact, under an obligation to pay compensation. He joins issue on the limited question as to whether the direction passed by the learned Trial Court to pay compensation under the provisions of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is tenable? According to him, the learned Trial Court should have directed payment under the provisions of the Land Acquisition Act, 1894. Therefore, the question which has to be decided is whether the compensation is payable under the provisions of the 1894 Act or under the provisions of the 2013 Act.
The 1894 Act has been repealed and has been succeeded by the aforesaid 2013 Act. Section 114 of the 2013 Act provides as follows:-
" R epeal and saving.(1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.
(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) 6 with regard to the effect of repeals. "
Mr. Sengupta contended that the case should be governed by the provisions of Section 6(c) of the General Clauses Act which insofar as, is material for our purpose, reads as follows:-
" 6 . Effect of repeal. -
Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) ...................
(b) ...................
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any enactment so repealed; or
(d) ....................
(e) .....................7
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. "
The question of applicability of Section 6(c) of the General Clauses Act, 1897, according to us, may have arisen if a different intention was not indicated by the 2013 Act. But such different intention, according to us, is to be found in Section 24 of 2013 Act which provides as follows:-
" 2 4. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases. - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), -
(a) where no award under section 11 of the said Land 8 Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding
anything contained in sub-
section (1), in case of land
acquisition proceedings
initiated under the Land
Acquisition Act, 1894 (1 of
1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the 9 appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. "
Mr. Sengupta admitted the fact that the land has been put to use for the public purpose for which the land was acquired. It is also not in dispute that the award was not made. Therefore the provisions of Section 24(1)(a) would squarely become applicable and the question has to be answered by holding that compensation is payable under the Act 2013 as rightly directed by the learned Trial Court. Consequently it is not possible to accede to 10 the contention of Mr. Sengupta that the compensation has to be paid under the provisions of the 1894 Act.
Mr. Pan, learned Advocate appearing for the writ petitioner, however, contended that the proceeding under sub-Section (1a) of Section 4 of the 1948 Act lapsed under Section 7A of the 1948 Act because the award was not passed within the prescribed time. After the proceedings under the 1948 Act had lapsed, the State was no longer entitled to retain possession of the land.
The State did not return the land to the writ petitioners.
The State continues to hold the possession of the land.
The State could have opted to issue notice under Section 9(3A) of the Land Acquisition Act, 1894, which reads as follows:-
" ( 3-A) The Collector shall also serve notice to the same effect on all such persons known or believed to be interested in any land, or to be entitled to act for persons so interested, the possession whereof has already been taken on requisition under section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to in this section as the said 11 Act), as re-enacted by the West Bengal Land (Requisition and Acquisition) Re-enacting Act, 1977, and, in every such case, the provisions of sub-section (1) of section 4, section 5, section 5-A, section 6, section 7 and section 8 of this Act shall be deemed to have been complied with.
Provided that the date of notice under this sub-section shall be the date of reference for the purpose of determining the value of such land under this Act:
Provided further that when the Collector has made an award under section 11 in respect of any such land, such land shall, upon such award, vest absolutely in the Governance, free from all encumbrances. "
He contended that the State did not take any such step. Therefore, the State can only hope to continue to hold the land under the Act which is holding the field that is to say the Act of the year 2013. Therefore, there 12 can be no question of payment of compensation under any other provisions except that the provisions of the 2013 Act.
Since we have already held that compensation is payable under the provisions of the Act of 2013, any further examination of the contention of Mr. Pan is not called for.
For the aforesaid reason, the judgment and order under challenge is upheld.
The appeals along with connected applications are dismissed. Parties shall bear their own costs.
( Girish Chandra Gupta, J. ) (Shib Sadhan Sadhu, J.)