Calcutta High Court (Appellete Side)
Raj Kapoor Jaiswal & Anr vs State Of West Bengal & Ors on 7 February, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
And
The Hon'ble Mr. Justice Sankar Acharyya
FMA 19 of 2017
with
CAN 10660 of 2016
Raj Kapoor Jaiswal & Anr.
Vs.
State of West Bengal & Ors.
For the appellants/applicants : Mr. Joydeep Kar, Sr. Advocate,
Mr. Kallol Basu,
Mr. Suman Banerjee
For the State : Mr. Sadananda Ganguli
Judgment on : 07.02.2017.
Biswanath Somadder, J. :
By consent of the parties, the appeal is treated as on day's list and is taken up for consideration along with the application for stay.
The appeal arises out of a judgment and order dated 1st July, 2016, passed by the learned Single Judge in W. P. 32497 (W) of 2013 (Raj Kapoor Jaiswal & Anr. Vs. The State of West Bengal & Ors.). The appellants herein were the writ petitioners who challenged a notice, being memo dated 10th December, 2008, issued by the Additional Land Acquisition Officer. Another memo dated 23rd November, 2009, by which the Information Officer informed that the subject land had been acquired in LA Case No.4/540/1998-1999 and that the West Bengal Housing Infrastructure Development Corporation was in possession of the land-
2in-question since 23rd January, 2002, was also challenged. The judgment and order of the learned Single Judge dealt with the issues at length and it appears that in conclusion the learned Single Judge proceeded to dismiss the writ petition on the ground of suppression of material facts as well as on the further ground of delay and/or laches in respect of a stale claim.
On behalf of the appellants it was submitted that even if there was considerable delay on the part of the writ petitioners in challenging the memos dated 10th December, 2008 and 23rd November, 2009, the applicability of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, would be attracted in the facts of the case and this aspect of the matter ought to have been considered by the learned Single Judge instead of proceeding to dismiss the writ petition.
On the other hand, on behalf of the State our attention has been drawn to the affidavits filed on behalf of the respondents before the learned Single Judge.
Referring to and relying upon the same it is submitted that in respect of the land-
in-question, the writ petitioner no.1 appeared before the Land Acquisition Officer on 29th March, 2000 and verified his title in respect of the land purchased by him as well as his wife, being the writ petitioner no.2. The award for compensation was subsequently prepared and declared accordingly by the Collector and, therefore, the allegation that he was unaware of the acquisition proceeding is concocted and manufactured and is a pure myth. Learned advocate for the State while referring further to the affidavits submits that it has been stated therein that the compensation of the land-in-question was handed over to the Requiring 3 Body. After declaration of the award, notices were issued in a prescribed form and were delivered at the notified addresses on 17th July, 2001, offering payment of compensation but the writ petitioners did not turn up to receive the same and the award money is still lying with the Collector, North 24-Parganas. Learned advocate for the State while referring to a supplementary affidavit affirmed by the Additional Land Acquisition Officer on 10th May, 2016, submitted that it would appear therefrom that the documents annexed therein, being three letters; two of them dated 11th January, 2000 and another dated 2nd August, 2001, would clearly demonstrate that the writ petitioners were aware of the acquisition proceeding as far back as in the year 2000 and 2001 and these letters were never disclosed by the writ petitioner at the time of filing of the writ petition.
In reply, on behalf of the appellants it is submitted that all these documents were disclosed in the affidavit-in-reply filed on behalf of the writ petitioners before the learned Single Judge and a further ground was taken in the said affidavit-in-reply that by virtue of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the land acquisition proceeding under the repealed Act of 1894 had lapsed having been made five years or more prior to the commencement of the new Act of 2013. On this score, it is further submitted on behalf of the appellants that after promulgation of the new Act of 2013, the land acquisition proceeding initiated under the old Act of 1894 shall be deemed to have lapsed also on the ground that physical possession has not been taken and compensation has not been paid under the said proceeding.
4We, however, find that all the above issues have been considered at length by the learned Single Judge. The following observations made in the impugned judgment and order by the learned Single Judge are of relevance:
"On the aforesaid submissions, the points which emerged for consideration before this Court are whether the Writ Petition should fail on the ground of gross suppression of material facts and whether the acquisition proceedings automatically lapsed under Section 24 of the Act of 2013 when neither physical possession is taken nor the compensation is paid in favour of the owner of the acquired land.
Factually it would not be incorrect to say that the Writ Petition is bereft of any letter being caused in the year 2000 to the Land Acquisition Officer and initiation of land acquisition proceeding by the competent authority. The knowledge of land acquisition proceeding is stated to have come when a letter was caused in the year 2008 to the Land Acquisition Authority and to the prescribed officer under the Right to Information Act. The entire Writ Petition is silent on the factum of causing a letter to the Land Acquisition Authority on 11th January, 2000 and participation in the said proceeding.
The Writ Court should not encourage a litigant who has not come before the Court with clean hands. The suppression of material facts may disentitle the litigant under the equitable jurisdiction except when there is an apparent violation of a fundamental right enshrined under the Constitution. Had the entire dispute based on those material facts which have been suppressed in the Writ Petition the Court in such given circumstances may refuse to exercise the discretion conferred under Article 226 of the Constitution. It would be different when a question of law is raised in a reply the Writ Petition should not be dismissed as it was not raised in the Writ Petition. The reliance can be made to a judgment of the Supreme Court in case of Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi (Supra) wherein it is held:-
"17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in- rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not 5 been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court."
In the instant Writ Petition the plea so raised is based upon the footing that even though the land acquisition proceeding had been initiated under the Act of 1894 but because of the provisions contained under Section 24 of the Act of 2013 it would be deemed to have lapsed. Before proceeding to deal with the aforesaid point it would be profitable to quote Section 24 of the Act of 2013 which runs thus:-
"24. 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 Acquisition ct (sic, 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 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."
Both sub-section 1 and sub-section 2 of the Section 24 start with a non- obstante clause and applied in a different field. Sub-section 1 of Section 24 of the Act of 2013 applies where the land acquisition proceedings have been initiated under the Act to 1894 but no award under Section 11 of the said Act is made. Sub-section 2 of Section 24 provides that where an award has been made five years or more prior to 6 the commencement of the Act of 2013 and if the physical possession of the land has not been taken or the compensation has not been paid such land acquisition proceeding shall be deemed to have lapsed. The entire case is based upon sub- section 2 as according to the Petitioners neither the compensation is paid nor the physical possession was ever taken by the competence authorities. So far as the physical possession of the properties in question is concerned, it is a specific stand of the Respondent Authorities that the same was taken on 23rd January, 202. The factum of taking possession was also made known to the Petitioner way back in the year 2008 when the competent authority replied to the letter dated 23rd November, 2008 issued by the Petitioner No.1. There is no whisper in the Writ Petition nor in the Affidavit-in-Reply that the such possession has been refuted and / or denied except a bald submission that the possession is still with the Petitioners. There is no correspondences made by the Petitioners after having aware that the possession has been taken by the competent authorities and there is no hesitation to say that the Petitioner was silent till the Writ Petition is failed before this Court. There is a strong presumption in favour of the Respondents on the plea of possession having taken on 23rd January, 2002 and therefore this Court does not find any semblance of truth in the statement of the Petitioners that the physical possession is still with them.
The Petitioners are very much vocal in their submission that the compensation has not been paid. The reliance is heavily placed on the judgment of the Supreme Court rendered in case of Pune Municipal Corporation (supra) that mere deposit of the compensation with the Collector without depositing the same in Court cannot be construed to have been 'paid' within the meaning of Section 24(2) of the Act of 2013. It would be prudent to quote the relevant observation from the said report which runs thus:-
"17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section [sub-section (2) of Section 24]. If a literal construction were to be given, then it would amount to ignoring the procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such 7 compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid"
within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
18. The 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. Now, this is admitted position that award was made on 31-1-2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs 27 crores) was deposited in the Government treasury. Can it be said that deposit of the amount of compensation in the Government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the State's revenue account is of no avail and the liability of the State to pay interest subsists till the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the Government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act."
It is a specific stand of the Respondents the compensation determined under the award was offered to the Petitioner who refused to accept the same. It is further stated that all the other awardees of the land except the Petitioners accepted compensation and the award money is still lying with the Collector. The provision of 8 Section 31 of the 1894 Act was considered by the Supreme Court in Pune Municipal Corporation case and it is held--
"12. To find out the meaning of the expression, "compensation has not been paid", it is necessary to have a look at Section 31 of the 1894 Act. The said section, to the extent it is relevant, reads as follows:
"31. Payment of compensation or deposit of same in court.--(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall 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 or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted:"
13. There is amendment in Maharashtra--Nagpur (City) in Section 31 whereby in sub-section (1), after the words "compensation" and in sub-section (2), after the words, "the amount of compensation", the words "and costs if any" have been inserted.
14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it, (ii) there is no person competent to alienate the land, and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.
15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18."
9It is therefore manifest that in the event the Petitioners refused to receive the awarded money it is obligatory on the part of the Collector to deposit the same in the Court to which the reference under Section 18 may be made. Such plea being a question of law though not taken in the Writ Petition but was taken in the reply filed thereto and at the time of an argument the Respondents were aware about such question having involved in the instant Writ Petition. Technically the plea ought to have been taken in the Writ Petition but once the same is surfaced in the reply and at the time of an argument the Respondents were aware of such plea being taken and have a full notice of the fact the Writ Petition should not fail simply on the ground that such plea was absent in the Writ Petition.
A distinction must be drawn between the suppression of material facts and non-taking of a plea in the Writ Petition as in case of former the Writ Petition may fail but in case of later the same principal cannot be applied if such plea is taken in the reply or rejoinder and the Respondent was well aware of such questions being involved in the Writ Petition and argued at length before the Court. In the instant case though a question is raised in the reply as to the applicability of Section 24 of the Act of 2013 but there is no hesitation in my mind that the Petitioner is guilty of gross suppression of material facts in the Writ Petition for non disclosure of the communications made with the Land Acquisition Officer way back in the year 2000.
Apart from the aforementioned discussion it is also apparent from the record that the Writ Petition has been filed after a long period of time. It is evident from the Writ Petition that the Petitioner derived knowledge from the land acquisition proceeding in the year 2008 and approached this Court with this Writ Petition in the year 2013. In case of Srinivasa Bhat -Vs- A. Sarvothama Kini reported in (2010)12 SCC 523 the Supreme Court held that the High Court may refuse to exercise its discretion under Article 226 of the Constitution if the party invoking the jurisdiction have not disclosed true, correct and complete facts in the following words:-
"10. The remedy under Article 226 of the Constitution is discretionary and relief may be refused if it is found that the party invoking such jurisdiction has not disclosed true, correct and complete facts. Relief may also be refused in extraordinary jurisdiction where the writ petition suffers from laches and unexplained delay. Insofar as the instant case is concerned, the order of the Land Tribunal dated 29-3-1994 was challenged in the writ petition almost after five years. The explanation of Writ Petitioners 1 to 4 that they came to know of that order in 1998 hardly merits acceptance as it transpires that in 1994 itself they made an application before the Tahsildar for effecting changes in the mutation and other revenue records contending 10 that they have interest in 7 cents of land in Survey No. 108/17C and after an inquiry, the Tahsildar rejected their application. The writ petitioners are guilty of suppression of material facts as well. In the circumstances, there was hardly any justification for the Division Bench to interfere with the discretion exercised by the Single Judge."
This Court cannot overlook the judgment of the Apex Court rendered in case of Leelavati & Ors. -Vs- State of Haryana & Ors. Reported in (2012)1 SCC 66. In the said report the challenge was made to an action of the Land Acquisition Officer in proceeding for acquisition of the land after a long delay. The Apex Court dismissed the Writ Petition on the ground of delay even when there is no period of limitation prescribed for filing the petition under Article 226 of the Constitution in absence of any cogent and sufficient explanation. The Apex Court noticed the earlier judgment of the Constitution Bench delivered in case of State of Madhya Pradesh -Vs- Bhailal Bhai reported in AIR 1964 SC 1006 where the Constitution Bench held that if the delay is more than the normal period of limitation provided for institution of the suit the Court would be justified in denying the relief to the Petitioner if the petition is bereft of any sufficient and cogent explanation. It would be relevant to quote the following observation made in paragraph 14 of the said report which runs thus:-
"14. A portion of the tax thus assessed has been already paid by the petitioners. It cannot now be disputed that this payment was made under a mistake within Section 72 of the Indian Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. The question is: whether the relief of repayment has to be sought by the tax-payer by an action in a Civil Court or whether such an order can be made by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. The jurisdiction conferred by Article 226 is in very wide terms. This article empowers the High Court to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. According to the petitioners a writ in the nature of mandamus can be appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. That in a number of cases the High Courts have used the writ of mandamus to enforce such repayment is not disputed. In a recent case in Firm Mehtab Majid and Co. v. State of Madras this Court made in a petition under Article 32 an order for refund of tax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The question whether the court has this power to order refund was not however raised there. In Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf the appellants 11 disputed the correctness of the High Court's order made in an application under Article 226 of the Constitution directing refund of taxes that had been paid under the U.P. Sales Tax Act on the respondent's forward transactions in silver bullion. After the levy of Sales Tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked for refund of the tax paid and when that was refused he applied to the High Court under Article 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for refund was affirmed by this Court in appeal. In this case also the power of the High Court to order such refund was not challenged either before the High Court or before this Court."
There is no explanation offered in the Writ Petition or in the reply, which occasioned the delay in filing the instant Writ Petition with promptitude. The case which runs into several paragraphs simply proceeds that the lands of the Petitioners were acquired without initiating any proceeding provided under the Act of 1894 and such fact was made known to the Petitioners in the reply to the letter dated 27th November, 2008. Even the information under Right to Information Act was given to the Petitioners on 17th November, 2009 yet there is no explanation offered as to why the Writ Petition could not be taken within three years therefrom which is a normal period of limitation provided for institution of a suit under the Limitation Act.
This Court, therefore finds that the Petitioner is guilty of delay and latches and the stale claim cannot be allowed.
On the above observation, the Writ Petition is dismissed.
However, in the facts and circumstances of the facts, there shall be no order as to costs."
In an Intra-Court Mandamus Appeal, cause for any interference is extremely limited unless palpable infirmities are noticed or the impugned judgment and order is not supported with cogent or justifiable reasons or is wholly perverse in its findings. If such exceptions do not surface from a plain reading of the impugned judgment and order, the Appeal Court should be loathed to interfere, especially, in an Intra-Court Mandamus Appeal. In the facts of the 12 instant case, not only the impugned judgment and order is supported with cogent and justifiable reasons, what is striking is that the petitioners could not even demonstrate unimpeachable bona fides before the writ Court while seeking to invoke its high prerogative jurisdiction under Article 226 of the Constitution of India, which is essentially discretionary in nature.
In a recent judgement rendered by a Single Bench of this Court on 3rd August, 2016, in W. P. 5296 (W) of 2016 (Madhusudan Ghosh vs. State of West Bengal & Ors.), reported in AIR 2016 (NOC) 740 (CAL), it has been observed to the effect that if one has to approach the writ Court, he has to do so with clean hands and with utter honesty and transparency, which will manifest itself from the pleadings itself wherein only material facts are required to be stated without concealing or suppressing anything and only then seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his/her petition may be dismissed at the threshold without considering the merits of the claim.
Whenever a petitioner suppresses the material facts, his bona fides immediately become suspect. Discretionary relief under Article 226 of the Constitution of India is not available to such person. The ratio of the decision rendered by the King's Bench in R. v. Kensington Income Tax Commissioners, reported in (1971) 1 KB 486 (CA), was also taken note of wherein it has been observed to the effect that a writ petitioner who does not come with candid facts and "clean breast" cannot hold a writ of the Court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, 13 manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the writ petitioner does not disclose all material facts fairly and truly, but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the Rule NISI and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such a writ petitioner requires to be dealt with for contempt of Court for abusing the process of the Court.
As observed earlier, the learned Single Judge has rendered the judgement and order supported with cogent and justifiable reasons as to why the writ petition was required to be dismissed and there is no scope in the facts and circumstances of the instant case to interfere with the same.
The appeal and the application for stay are, therefore, liable to be dismissed and stand accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) 14 PP.