Calcutta High Court (Appellete Side)
Snandy vs State Of West Bengal & Ors on 4 April, 2012
04.04.2012 FMA 989 of 2011
Court No. 1
Item No. 74 Ashok Kumar Roy
snandy Vs.
State of West Bengal & Ors.
Mr. Amal Kumar Mukhopadhyay, Advocate
Ms. Anamika Das, Advocate
.....For the Appellant
Mr. Prasenjit Basu, Advocate
Mr. Parikshit Basu, Advocate
.....For the Respondent No. 14
Mr. Madan Mohan Roy, Advocate .....For the Respondent No. 13 Mr. P.S. Basu, Advocate Mr. S. Talukdar, Advocate For the Respondent - KMDA A Receiver was appointed by a civil court in a suit for partition of the year 1956 and he decided to challenge the acquisition proceeding by filing a writ- petition. He was appointed as a Receiver in the year 2009 and in 2011 a writ-petition inter alia for a writ in the nature of mandamus for cancelling or withdrawing the acquisition of a part of the properties in respect of which he was appointed as a Receiver was filed by him before this Court. His further prayer was a writ of mandamus cancelling the entire proceedings for the acquisition, all notices etc. which were issued in that land acquisition proceedings initiated under the Land Acquisition Act, 1894.
The writ-petition was heard by a learned single Judge of this Court and after a contested hearing the same was dismissed. The Receiver felt aggrieved by the order and decided to come up with the present appeal.
A vast track of land measuring over 12 acres at a prime location of the presently extended area of the urban agglomeration of the city of Kolkata was owned by some wealthy people about six decades ago. In civil court, a suit for eviction was started and more than half a century ago for the first time a Receiver was appointed over the entire suit property including the land in question.
During the pendency of the suit for certain public purposes, more specifically for the purpose of implementation of certain housing scheme, a land acquisition proceeding was initiated in the year 2000. In the said proceeding different requirements at various stages which the Act postulates were taken and duly complied with. After complying with all the formalities, the award was finally declared in the year 2003 and thereafter, initially symbolic and then physical possession was taken over by the State of West Bengal which in turn in the year 2007 transferred its right, title and interest in the suit property to the West Bengal Housing Board which is Respondent No. 13 before us.
It appears from the records that the Respondent No. 13 had handed over permissive possession of these lands to Bengal Peerless Housing Development Company Limited which figures respondent no. 14 in this appeal for the implementation of the public purposes.
After all these procedures of acquisition were completed, the present appellant was appointed as a Receiver by the civil court and he reportedly visited the suit property and found some portions of the suit property being illegally occupied by various trespassers and it appears from the Status Report filed by the present Receiver that he had allegedly taken both symbolic and physical possession of those properties. On a different visit, he found some persons constructing a road encroaching some portions of the suit properties. This had made the Receiver rather unhappy. A flurry of activities started. It further appears from the Status Report filed by him in the civil court which had appointed him as a Receiver, that he had written letters to the Project Director, K.E.I.P. (abbreviation used by the appellant in the Status Report without giving its full form) requesting them to stop work of construction and to see him with their authorities to undertake such work. He also hung a notice indicating that the property was under the custody of the Receiver. He also wrote letters to the Superintendent of Police, South 24- Parganas and Officer-in-charge, Purba Jadavpur Police Station. In the report filed in the civil court, we find him recording that in spite of such initiative taken by him, the authorities have not honoured him. On the contrary, the K.E.I.P. persons had thrown away the notice he had hung and the Officer-in- Charge, Purba Jadavpur Police Station had flatly declined to honour his request without any specific order of the court. It further appears from the said report that he had formed a Committee of 15 persons comprising both the appellants and defendants of the suit for the protection, preservation and management of the suit property.
The Receiver then took out an application praying for a leave to take legal steps against 'persons'/concerned 'authorities' for protection and preservation of the property and to issue letters to the K.M.C., B.L. & L.R.O. requesting them to stop giving mutation and completing sanctions in the encroached portions including letters to concerned authorities calling them to inform about their alleged acquisition or occupation. The civil court after recording submission of the Receiver allowed the petition filed by him.
The result of such leave was a writ-petition which was not ultimately pressed. This abortive attempt was followed by another writ-petition on more or less similar facts but for different reliefs.
It is this writ-petition which was dismissed by the learned single Judge by the order impugned in the present appeal. It appears from the order impugned that the stand taken by the respondents was that the issue regarding acquisition having been finally concluded, the writ-petition was clearly not maintainable. Challenge to this acquisition proceedings made by some of the parties to the suit had ultimately failed and the acquisition was upheld by the Hon'ble Supreme Court. The learned single Judge had dismissed the writ-petition by holding that the petitioner could not reopen the issue of acquisition and that also on the ground that by the time the present Receiver was appointed, the property had in fact vested in the State and the earlier Receiver not having taken any step, the present Receiver also could not challenge the acquisition at a very belated stage.
The Receiver was unrelenting. He decided to file an appeal. Mr. Mukhopadhyay, learned advocate appearing for the appellant-receiver has very strenuously submitted that once a Receiver is appointed in respect of a property by a court, it is not only within his competence but it is also his duty to take all such steps for protection and preservation of the property. According to him the Receiver was not aware of the acquisition proceedings when he initially filed the application for leave in the civil court. It was only subsequently he came to know about it.
The records do not suggest that it is entirely correct that the Receiver was not aware of any acquisition proceeding when he prayed for leave initially. He referred to the alleged acquisition but did not dwell on it with greater details. At least when he found some persons allegedly constructing roads on the suit properties he ought to have appreciated that this was not to be confused with an ordinary encroachment by unlawful intruders as some authorities were in the midst of constructing roads and he ought to have taken greater care in collecting the information and appraising the court with better details. It does not appear form the order of the civil court that while it allowed the petition of the appellant-receiver it had the acquisition proceedings in mind. What was still more surprising was that the application for leave before the civil court was moved upon notice to all the parties and they were present in Court. Nobody brought it to the notice of the court despite their having notice and in spite of their knowledge about the acquisition. This silence is very suggestive and the civil court has unsuspectingly granted leave for the purpose of preservation and protection of the property by removing the alleged encroachment by unlawful trespassers on the suit property.
While the appellant otherwise appears to be a dutiful Receiver it does not appear that any specific leave of the civil court was sought for to challenge the acquisition proceedings.
We are in respectful agreement with the views expressed by the learned single Judge that after the conclusion of all the stages of the acquisition and after the land in question had vested in the State which in turn handed it over the respondent no. 14 for implementation of the public purpose for which it was acquired, the writ-petitioner could not challenge the said proceedings by way of a writ-petition. Moreover, the Predecessor-in-Office of the present Receiver did not take any step either to bring it to the notice of the civil court when the notification under Section 4 of the Land Acquisition Act, 1894, was published in the year 2000 or when the declaration under Section 6 was published in the year 2001 or when the award was made in the year 2003. Neither the then Receiver did take any step nor any step was taken by the parties. It is worth mentioning that in the award declared was appended a list of persons claimed to be interested in the place under acquisition.
Mr. Bose, the learned Advocate for the respondents no. 13 and 14 has questioned the competence of the present Receiver to challenge acquisition proceedings while his predecessors had declined not to raise any objection. A similar question fell for consideration in the case of Bengal Peerless Housing Development Company Limited - Vs. - Gopeswar Prasad Agarwal & Ors., reported in 2002 (2) CHN 522 wherein a Division Bench of this Court had held that the Receiver had notice of the order under Section 3(1) of the Act II of 1948 and did not raise any objection to the intended requisition and acquisition. Relying on the case of Kanhaiyalal Vs. Dr. D.R. Banaji, AIR 1958 SC 725, the Division Bench held that in the absence of any objection from the side of any of the Receiver, the requisition and subsequent acquisition without prior leave of the Court were not invalid.
Applying the principles laid down therein it can also be said that since the predecessor-in-office of the present appellant as Receiver of the suit properties had raised no objection to the acquisition proceeding neither did the parties think it necessary and proper to bring it to the notice of the Court, the initiative taken by the present appellant cannot be upheld. That apart, we have already noted that the civil court's attention was never drawn to the fact that the property has already vested in the State.
Mr. Mukhopadhyay appearing for the Receiver-appellant submits that this is a case where provisions of Section 9 of the Land Acquisition Act apply. Section 9 inter alia requires a Collector to cause public notice at convenient places stating that the Government intends to take possession of the land in question and that claims to compensation for all interests in such land may be made to him.
First, Section 9 has no manner of application to the facts of this Case. Obviously, Section 9 postulates a stage that comes after the declaration under Section 6 has been made and that apart this submission of Mr. Mukhopadhyay that the Collector ought to have taken permission of the Court before such public notice is, in view of what have been stated above, entirely misconceived and misplaced.
Mr. Bose relies on the case of Supreme Court reported in Special Deputy Collector, Land Acquisition CMDA Vs. J. Sivaprakasan & Ors., reported in 2011 (1) SCC 330 for a proposition that the acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act to the person challenging the acquisition as the purpose of publication of the public notice provided under Section 4(1) of the Act is to give notice of the proposal of acquisition to the person concerned such notice can also be by way of an implied notice or a constructive notice.
In this case, both the notification under Section 4 as well as the declaration under Section 6 were duly published.
In the facts of the case, we are constrained to hold that the Receiver-appellant had exceeded the extent of the leave granted by the civil court. While obtaining necessary leave in the context of the averments made in the application the Receiver filed a writ-application challenging the acquisition itself and exceeded the extent of the leave granted by the civil court. He invoked the writ jurisdiction of this court for a mandamus for quashing the entire acquisition proceedings along with the steps taken at different stages.
We hold that the Receiver had not done what was expected of him and had done what he was not exactly expected to do. Mr. Mukhopadhyay has handed over to us a copy of the report dated May 18, 2011 filed by the Receiver in the civil court and we have been informed that the civil court had merely directed the report to be kept on record. We have discussed that the writ-petition was not maintainable and had not merit and was rightly dismissed. The present appeal from its dismissal is equally devoid of merits and the same is also dismissed.
However, we consider this to be a case where the dismissal of the appeal should be with costs. The appellant shall pay a sum or Rs.2,500/- to each of the respondents within a period of four weeks from the date of the receipt of a copy of this order failing which the respondents will be at liberty to execute the order for recovery.
(J. N. Patel, Chief Justice) (Dr. Sambuddha Chakraborti, J) 04.04.2012 FMA 989 of 2011 Court No. 1 Item No. 74 Ashok Kumar Roy snandy Vs. State of West Bengal & Ors.
Mr. Amal Kumar Mukhopadhyay, Advocate Ms. Anamika Das, Advocate .....For the Appellant Mr. Prasenjit Basu, Advocate Mr. Parikshit Basu, Advocate .....For the Respondent No. 14 Mr. Madan Mohan Roy, Advocate .....For the Respondent No. 13 Mr. P.S. Basu, Advocate Mr. S. Talukdar, Advocate For the Respondent - KMDA A Receiver was appointed by a civil court in a suit for partition of the year 1956 and he decided to challenge the acquisition proceeding by filing a writ- petition. He was appointed as a Receiver in the year 2009 and in 2011 a writ-petition inter alia for a writ in the nature of mandamus for cancelling or withdrawing the acquisition of a part of the properties in respect of which he was appointed as a Receiver was filed by him before this Court. His further prayer was a writ of mandamus cancelling the entire proceedings for the acquisition, all notices etc. which were issued in that land acquisition proceedings initiated under the Land Acquisition Act, 1894.
The writ-petition was heard by a learned single Judge of this Court and after a contested hearing the same was dismissed. The Receiver felt aggrieved by the order and decided to come up with the present appeal.
A vast track of land measuring over 12 acres at a prime location of the presently extended area of the urban agglomeration of the city of Kolkata was owned by some wealthy people about six decades ago. In civil court, a suit for eviction was started and more than half a century ago for the first time a Receiver was appointed over the entire suit property including the land in question.
During the pendency of the suit for certain public purposes, more specifically for the purpose of implementation of certain housing scheme, a land acquisition proceeding was initiated in the year 2000. In the said proceeding different requirements at various stages which the Act postulates were taken and duly complied with. After complying with all the formalities, the award was finally declared in the year 2003 and thereafter, initially symbolic and then physical possession was taken over by the State of West Bengal which in turn in the year 2007 transferred its right, title and interest in the suit property to the West Bengal Housing Board which is Respondent No. 13 before us.
It appears from the records that the Respondent No. 13 had handed over permissive possession of these lands to Bengal Peerless Housing Development Company Limited which figures respondent no. 14 in this appeal for the implementation of the public purposes.
After all these procedures of acquisition were completed, the present appellant was appointed as a Receiver by the civil court and he reportedly visited the suit property and found some portions of the suit property being illegally occupied by various trespassers and it appears from the Status Report filed by the present Receiver that he had allegedly taken both symbolic and physical possession of those properties. On a different visit, he found some persons constructing a road encroaching some portions of the suit properties. This had made the Receiver rather unhappy. A flurry of activities started. It further appears from the Status Report filed by him in the civil court which had appointed him as a Receiver, that he had written letters to the Project Director, K.E.I.P. (abbreviation used by the appellant in the Status Report without giving its full form) requesting them to stop work of construction and to see him with their authorities to undertake such work. He also hung a notice indicating that the property was under the custody of the Receiver. He also wrote letters to the Superintendent of Police, South 24- Parganas and Officer-in-charge, Purba Jadavpur Police Station. In the report filed in the civil court, we find him recording that in spite of such initiative taken by him, the authorities have not honoured him. On the contrary, the K.E.I.P. persons had thrown away the notice he had hung and the Officer-in- Charge, Purba Jadavpur Police Station had flatly declined to honour his request without any specific order of the court. It further appears from the said report that he had formed a Committee of 15 persons comprising both the appellants and defendants of the suit for the protection, preservation and management of the suit property.
The Receiver then took out an application praying for a leave to take legal steps against 'persons'/concerned 'authorities' for protection and preservation of the property and to issue letters to the K.M.C., B.L. & L.R.O. requesting them to stop giving mutation and completing sanctions in the encroached portions including letters to concerned authorities calling them to inform about their alleged acquisition or occupation. The civil court after recording submission of the Receiver allowed the petition filed by him.
The result of such leave was a writ-petition which was not ultimately pressed. This abortive attempt was followed by another writ-petition on more or less similar facts but for different reliefs.
It is this writ-petition which was dismissed by the learned single Judge by the order impugned in the present appeal. It appears from the order impugned that the stand taken by the respondents was that the issue regarding acquisition having been finally concluded, the writ-petition was clearly not maintainable. Challenge to this acquisition proceedings made by some of the parties to the suit had ultimately failed and the acquisition was upheld by the Hon'ble Supreme Court. The learned single Judge had dismissed the writ-petition by holding that the petitioner could not reopen the issue of acquisition and that also on the ground that by the time the present Receiver was appointed, the property had in fact vested in the State and the earlier Receiver not having taken any step, the present Receiver also could not challenge the acquisition at a very belated stage.
The Receiver was unrelenting. He decided to file an appeal. Mr. Mukhopadhyay, learned advocate appearing for the appellant-receiver has very strenuously submitted that once a Receiver is appointed in respect of a property by a court, it is not only within his competence but it is also his duty to take all such steps for protection and preservation of the property. According to him the Receiver was not aware of the acquisition proceedings when he initially filed the application for leave in the civil court. It was only subsequently he came to know about it.
The records do not suggest that it is entirely correct that the Receiver was not aware of any acquisition proceeding when he prayed for leave initially. He referred to the alleged acquisition but did not dwell on it with greater details. At least when he found some persons allegedly constructing roads on the suit properties he ought to have appreciated that this was not to be confused with an ordinary encroachment by unlawful intruders as some authorities were in the midst of constructing roads and he ought to have taken greater care in collecting the information and appraising the court with better details. It does not appear form the order of the civil court that while it allowed the petition of the appellant-receiver it had the acquisition proceedings in mind. What was still more surprising was that the application for leave before the civil court was moved upon notice to all the parties and they were present in Court. Nobody brought it to the notice of the court despite their having notice and in spite of their knowledge about the acquisition. This silence is very suggestive and the civil court has unsuspectingly granted leave for the purpose of preservation and protection of the property by removing the alleged encroachment by unlawful trespassers on the suit property.
While the appellant otherwise appears to be a dutiful Receiver it does not appear that any specific leave of the civil court was sought for to challenge the acquisition proceedings.
We are in respectful agreement with the views expressed by the learned single Judge that after the conclusion of all the stages of the acquisition and after the land in question had vested in the State which in turn handed it over the respondent no. 14 for implementation of the public purpose for which it was acquired, the writ-petitioner could not challenge the said proceedings by way of a writ-petition. Moreover, the Predecessor-in-Office of the present Receiver did not take any step either to bring it to the notice of the civil court when the notification under Section 4 of the Land Acquisition Act, 1894, was published in the year 2000 or when the declaration under Section 6 was published in the year 2001 or when the award was made in the year 2003. Neither the then Receiver did take any step nor any step was taken by the parties. It is worth mentioning that in the award declared was appended a list of persons claimed to be interested in the place under acquisition.
Mr. Bose, the learned Advocate for the respondents no. 13 and 14 has questioned the competence of the present Receiver to challenge acquisition proceedings while his predecessors had declined not to raise any objection. A similar question fell for consideration in the case of Bengal Peerless Housing Development Company Limited - Vs. - Gopeswar Prasad Agarwal & Ors., reported in 2002 (2) CHN 522 wherein a Division Bench of this Court had held that the Receiver had notice of the order under Section 3(1) of the Act II of 1948 and did not raise any objection to the intended requisition and acquisition. Relying on the case of Kanhaiyalal Vs. Dr. D.R. Banaji, AIR 1958 SC 725, the Division Bench held that in the absence of any objection from the side of any of the Receiver, the requisition and subsequent acquisition without prior leave of the Court were not invalid.
Applying the principles laid down therein it can also be said that since the predecessor-in-office of the present appellant as Receiver of the suit properties had raised no objection to the acquisition proceeding neither did the parties think it necessary and proper to bring it to the notice of the Court, the initiative taken by the present appellant cannot be upheld. That apart, we have already noted that the civil court's attention was never drawn to the fact that the property has already vested in the State.
Mr. Mukhopadhyay appearing for the Receiver-appellant submits that this is a case where provisions of Section 9 of the Land Acquisition Act apply. Section 9 inter alia requires a Collector to cause public notice at convenient places stating that the Government intends to take possession of the land in question and that claims to compensation for all interests in such land may be made to him.
First, Section 9 has no manner of application to the facts of this Case. Obviously, Section 9 postulates a stage that comes after the declaration under Section 6 has been made and that apart this submission of Mr. Mukhopadhyay that the Collector ought to have taken permission of the Court before such public notice is, in view of what have been stated above, entirely misconceived and misplaced.
Mr. Bose relies on the case of Supreme Court reported in Special Deputy Collector, Land Acquisition CMDA Vs. J. Sivaprakasan & Ors., reported in 2011 (1) SCC 330 for a proposition that the acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act to the person challenging the acquisition as the purpose of publication of the public notice provided under Section 4(1) of the Act is to give notice of the proposal of acquisition to the person concerned such notice can also be by way of an implied notice or a constructive notice.
In this case, both the notification under Section 4 as well as the declaration under Section 6 were duly published.
In the facts of the case, we are constrained to hold that the Receiver-appellant had exceeded the extent of the leave granted by the civil court. While obtaining necessary leave in the context of the averments made in the application the Receiver filed a writ-application challenging the acquisition itself and exceeded the extent of the leave granted by the civil court. He invoked the writ jurisdiction of this court for a mandamus for quashing the entire acquisition proceedings along with the steps taken at different stages.
We hold that the Receiver had not done what was expected of him and had done what he was not exactly expected to do. Mr. Mukhopadhyay has handed over to us a copy of the report dated May 18, 2011 filed by the Receiver in the civil court and we have been informed that the civil court had merely directed the report to be kept on record. We have discussed that the writ-petition was not maintainable and had not merit and was rightly dismissed. The present appeal from its dismissal is equally devoid of merits and the same is also dismissed.
However, we consider this to be a case where the dismissal of the appeal should be with costs. The appellant shall pay a sum or Rs.2,500/- to each of the respondents within a period of four weeks from the date of the receipt of a copy of this order failing which the respondents will be at liberty to execute the order for recovery.
(J. N. Patel, Chief Justice) (Dr. Sambuddha Chakraborti, J)