Calcutta High Court (Appellete Side)
Sri Barun Kumar Kuity & Ors vs The State Of West Bengal & Ors on 5 March, 2025
S/L 4
05.03.2025
Court. No. 551
Suvayan/
Sourav/
KAUSHIK
WPA 11488 of 2000
With
CAN 2 of 2014 (Old No. CAN 11183 of 2014)
Sri Barun Kumar Kuity & Ors.
Vs.
The State of West Bengal & Ors.
Mrs. Usha Maiti
Mr. Sukanta Das
Mr. Sakya Maity
...for the petitioners.
Mr. Chandi Charan De, AGP
Mr. Anirban Sarkar
...for the State.
Mr. S. M. Hassan
Ms. Anupama Yasmin
...for the Haldia Municipality.
Mr. Sk. Afrojul Haque
...for the respondent no. 11.
In Re: CAN 2 of 2014 (Old No. CAN 11183 of 2014)
1. This is an application for recalling of the order dated
August 10, 2009.
2. It reveals to this court that a similar application was
filed being CAN 1225 of 2019 with the self-same
prayer which was dismissed by a co-ordinate Bench
of this Court, however, in MAT 96 of 2021 a Division
Bench of this Court by its order dated 08.12.2021 set
aside the said order dated 11.11.2019 and allowed the
restoration as prayed for and thus WPA 11488 of
2000 was restored to its original file and number.
3. In view of such, CAN 2 of 2014 (Old No. CAN 11183
of 2014) has become infructuous and is disposed of.
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4. Learned Registrar I.T. is hereby directed not to show
pendency of CAN 2 of 2014 (Old No. CAN 11183 of
2014) during subsequent listing of this case.
In Re: CAN 11182 of 2014
1. From the report dated 25.02.2025 as submitted by
AR (MO-II) it reveals that another interlocutory
application being CAN 11182 of 2014 has been traced
out. Though the said CAN 11182 of 2014 is not in
today’s list but the same is treated to be in today’s
list.
2. In CAN 11182 of 2014 a similar prayer was made as
has been made in CAN 2 of 2014 (Old No. CAN
11183 of 2014).
3. Such being the position this Court holds at CAN
11182 of 2014 has practically become infructuous
and is also disposed of.
4. Learned Registrar I.T. is once again directed not to
show pendency of CAN 11182 of 2014 during
subsequent listing of this case.
In Re: WPA 1148 of 2000
1. This Court has heard the learned advocate for the
writ petitioners, learned advocate for the State,
learned advocate for the respondent no. 10 and
learned advocate for the respondent no. 11.
2. By filing the instant writ petition, the writ petitioner
has prayed for issuance of appropriate writ/writs
against the respondent authorities for cancellation
and/or quashing the notifications/notices vide
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Midnapur No. 166/LA(Cell)HDA/90/96-97 dated
23.12.1996 as published under Section 4 of the Land
Acquisition Act of 1894 (hereinafter referred to as
the Act I of 1894) along with other ancillary reliefs.
3. At the time of hearing, Ms. Maiti, learned advocate
appearing on behalf of the writ petitioners submits
before this Court that since the instant writ petition
was filed in the year 2000 and since in the
meantime, 24 years have been passed, this Court
sitting in writ jurisdiction may mould the relief in
terms of the provision of Section 24 of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as ‘the said Act of 2013’
in short).
4. It is submitted by Ms. Maiti that though notification
under Section 4 of the Act I of 1894 was published
on 23.12.1996 and a declaration was also published
under Section 6 of Act I of 1894 on 10.08.1997 and
further an award was declared on 16.04.2001 but the
writ petitioners have not been paid any
compensation for the said acquisition as yet. It is
further submitted by Ms. Maiti that even no notice
under Section 12(2) of the said Act I of 1894 was
served upon the writ petitioners.
5. It is further contended on behalf of the writ
petitioners that since the possession of the acquired
land has not been taken by the
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respondents/authorities, the entire acquisition
proceeding may be considered to have been lapsed
in terms of the provision of Section 24(2) of the said
Act of 2013. It is further submitted by Ms. Maity that
in respect of the relevant plots of land, the record of
rights still stands in the name of the writ petitioners.
Drawing attention to the provision of Section 16 of
the Act I of 1894, it is further submitted by Ms. Maiti
that since the possession of the acquired land of the
writ petitioners has not been taken by the collector,
the vesting as claimed by the
respondents/authorities have not been completed
and thus, there cannot be any impediment in
granting relief to the writ petitioners in terms of the
provision of Section 24(2) of the said Act of 2013.
6. In course of her submission, Ms. Maiti also draws
attention of this Court to the provision of Sections 11
and 12 of the Act I of 1894. It is submitted by her
that even no notice with regard to publication of
award has been served upon the writ petitioners.
7. In course of her argument, Ms. Maiti places her
reliance upon the following reported decisions,
namely, Indore Development Authority Vs.
Manoharlal & Ors. reported in 2020 (8) SCC
129; Narmada Bachao Andolan Vs. State of
M.P., reported in AIR 2011 SC 1989 and ABCI
Infrastructure Limited Vs. State of West
5
Bengal & Ors., reported in 2017 (1) WBLR
(Cal) 90.
8. In her next limb of submission, it is further
contended by Ms. Maiti that there was inordinate
delay in passing the award though the Act I of 1894
clearly specifies that award is to be published within
two years and on account of such unexplained delay,
the land acquisition proceeding which is the subject
matter of the instant writ petition may also be
declared as void.
9. Per contra, Mr. Dey, learned advocate appearing on
behalf of the respondent/State at the very outset
draws attention of this Court to the various
paragraphs of the writ petition as filed by the
petitioners. It is submitted by Mr. Dey that from
paragraphs 2 and 3 of the instant writ petition, it
would reveal that there is no dispute that prior to
the initiation of the acquisition proceeding under
the Act I of 1894 notices under Section 4 were
published under the Act I of 1894 and thereafter a
declaration has been made under Section 6 of the
Act I of 1894. Drawing attention of paragraph no. 3
of the instant writ petition it is further submitted by
Mr. Dey that the writ petitioners have admitted
regarding initiation of LA Case No. 72 of 1997/1998
under Section 9(3) and (4) of the Act I of 1894.
Drawing attention to paragraph no. 5 of the instant
writ petition it is further submitted by Mr. Dey that
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it is also admitted position that the writ petitioners
have submitted their objection on 20th June, 2000
against the proposed Act.
10. In course of his submission, Mr. Dey, learned
Additional Government Pleader also draws attention
of this Court to affidavit-in-opposition as filed by the
respondent nos. 1, 8 and 9 as affirmed on 10th
August, 2009. It is submitted by Mr. Dey that from
paragraph no. 3 of the said affidavit-in-opposition it
would reveal that on account of pendency of a writ
petition being WP 9114 (W) of 1998 and on account
of an interim order as passed in connection with the
said writ petition, the award could not be published
within the stipulated period of two years and
ultimately the said interim order was vacated on 1st
September, 2000 and soon thereafter the award was
prepared and declared on 18th April, 2001. It is
submitted by Mr. Dey that by no stretch of
imagination it can be said that there occurred a
delay in submitting the award.
11. It is further submitted by Mr. Dey that the award as
has been passed in the writ petition has not been
accepted by the writ petitioner and thus the
requisite amount of compensation was deposited
with the appropriate authority. Mr. Dey further
contends from the supplementary affidavit-in-
opposition as filed by the respondent no. 11 as
affirmed on 5th August, 2009 it would reveal that
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after taking possession of the land in question under
Section 16 of the Act I of 1894 the same was handed
over to the respondent no. 11 being the requiring
body. It is thus contended by Mr. Dey that the writ
petitioner is not entitled to any relief under Section
24(2) of the said Act of 2013.
12. Mr. Hoque, learned advocate appearing on behalf of
the respondent no. 11 also draws attention of this
Court to the supplementary affidavit-in-opposition
as affirmed on 5th August, 2009. While adopting the
argument of Mr. Dey, Mr. Hoque submits that in the
meantime the respondent no. 11 authority after
taking possession of the acquired land had created
third party interest over the same.
13. Mr. Hasan, learned advocate appearing on behalf of
Haldia Municipality also supports the contention of
Mr. Dey and also Mr. Hoque.
14. Since, at the time of hearing learned advocate
appearing on behalf of the writ petition has
requested this Court to mould the relief on account
of long pendency of the instant writ petition in
accordance with the provision of Section 24(2) of the
said Act of 2013, this Court considers that the
provision of Section 24 of the said Act of 2013 is
required to be looked into and the same is
reproduced herein below in verbative.
“24. Land acquisition process under Act
No. 1 of 1894 shall be deemed to have
8lapsed in certain cases. –
(1)…………………………..
(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.”
15. Admittedly, with the enactment of the said Act of
2013, the old Act I of 1894 was repealed. However,
Section 24 of the said Act of 2013 made it clear that
in the event an award has been made under Section
11 of the Act I of 1894 five years or more prior to
commencement of the said Act of 2013 but the
physical possession of the said acquired land has not
been taken or the compensation has not been paid
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the said acquisition proceeding has been deemed to
have lapsed.
16. It thus appears to this Court that in order to get a
relief under Section 24(2) of the said Act of 2013, the
petitioner has to satisfy that notwithstanding
initiation of proceeding of acquisition under the Act
I of 1894 either the physical possession of the land
has not been taken or the compensation has not
been paid. If any one of the aforesaid two conditions
is found to have been fulfilled, the proceeding as
initiated under the provision of Act I of 1894 shall be
considered as lapsed. The said situation has been
well-explained by the Hon’ble Apex Court in the case
of Indore Development Authority (supra) in the
following manner:
“366. In view of the aforesaid discussion, we
answer the questions as under:
366.1. Under the provisions of Section 24(1)(a)
in case the award is not made as on 1-1-2014,
the date of commencement of the 2013 Act,
there is no lapse of proceedings.
Compensation has to be determined under the
provisions of the 2013 Act.
366.2. In case the award has been passed
within the window period of five years
excluding the period covered by an interim
order of the court, then proceedings shall
continue as provided under Section 24(1)(b) of
the 2013 Act under the 1894 Act as if it has not
been repealed.
366.3. The word “or” used in Section 24(2)
between possession and compensation has to
be read as “nor” or as “and”. The deemed
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lapse of land acquisition proceedings under
Section 24(2) of the 2013 Act takes place
where due to inaction of authorities for five
years or more prior to commencement of the
said Act, the possession of land has not been
taken nor compensation has been paid. In
other words, in case possession has been
taken, compensation has not been paid then
there is no lapse. Similarly, if compensation
has been paid, possession has not been taken
then there is no lapse ……………….”
17. Admittedly, in the instant writ petition there is no
averment to the effect that either the compensation
for the acquisition has not been paid by the
respondent State or the respondent State has not
taken the possession since at the time of filing of the
instant writ petition the writ petitioners prayer was
for quashing of the notice under Section 4 of the Act
I of 1894. Such points have been raised by Mrs.
Maiti in course of her argument by saying that as on
this day the names of the writ petitioner are still
transpiring in the relevant LR ROR in rayat. It was
further argued by her that none of the writ
petitioners have been paid compensation and even
no notice was given to the writ petitioners in terms
of Section 12(2) of the Act I of 1894. It is contended
by her that for non-service of such notice, the award
by the Collector cannot be held to be filed.
18. Admittedly, Section 12 of the Act I of 1894 clearly
mandates filing of the award in the Collector’s Office
and upon such filling the said award shall become
11
final and conclusive evidence as between the
Collector and the person interested. The said
section further mandates that the Collector shall
give immediate notice of filling of his award to the
interested person.
19. From the affidavit-in-opposition as filed by the
respondent nos. 8, 9 and 10 it reveals that the award
was prepared and declared on 16.04.2001, however,
the writ petitioners have not withdrawn
compensation till the day of filing of the said
affidavit-in-opposition i.e. till 10th August, 2009.
Since, the point of alleged non-service of notice was
not taken in the original writ petition the respondent
State got no opportunity to counter the same.
However, from the supplementary affidavit-in-
opposition of the respondent no. 11 it reveals to this
Court that after submissions and declaration of the
award on 16th April, 2001 the possession of the
acquired land was taken on 6th February, 2002 and
handing over possession to the requiring body was
completed on the self-same day that is 6th February,
2002. No material is forthcoming from the side of
the writ petitioner that such assertion is contrary to
the truth.
20. In view of such this Court holds that the writ
petitioners have miserably failed to establish that
the possession of the land in question was not taken
by the respondent authorities. Admittedly, in course
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of hearing, copies of some LR ROR were shown to
substantiate the possession of the writ petitioner but
in considered view of this Court those are no way
helpful to the writ petitioner in view of the fact it has
been contended on behalf of the respondent no. 11
that after taking possession of the acquired land they
had created third party interest. It is trite law that a
record of right raises a presumption of possession
but such presumption is rebuttable one. It appears
to this Court that presumption of possession as
claimed by the writ petitioners over the acquired
plot of land has been negatived by the affidavit of the
requiring body/respondent no. 11 herein.
21. In view of the discussion made above, this Court is
of thus considered view that the writ petitioners are
not entitled to get any relief under Section 24(2) of
the said Act of 2013 though in the instant writ
petition no such prayer was made. No explanation
is also forthcoming as to what prevented the writ
petitioner to mould their prayers either by way of
amendment or by filing any supplementary affidavit.
22. In further considered view of this Court, the
reported decision of Narmada Bachao Andolan
(supra) case is in no way helpful to the writ
petitioner since in the said case the Hon’ble Apex
Court had considered the provision of Article 300A
of the Constitution of India in the light of the Land
Acquisition Proceeding and thus the facts and
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circumstances involved in the case of Narmada
Bachao Andolan (supra) is distinguishable from the
facts and circumstances of the present case.
23. In the reported decision of ABCI Infrastructure Pvt.
Ltd. (supra), a Coordinate Bench of this Hon’ble
Court had dealt with the validity of the award as
published under Section 11A of the Act I of 1894 and
in doing so the said Court dealt with the provision of
Sections 4 and 6 of the Act I of 1894. In considered
view of this Court, the facts as involved in the writ
petition is also distinguishable from the facts of
reported decision of ABCI Infrastructure Pvt. Ltd.
(supra) and thus the same has got no manner of
application in the instant writ petition.
24. In the judgment dated 6th December, 2022 as passed
by a Coordinate Bench in WPA 10205 of 2001
(Motilal Mondal & Ors. Vs. Union of India & Ors.), a
Coordinate Bench had occasioned to deal with
another writ petition involving self-same land
acquisition proceeding wherein it has been held
specifically that it is well-settled that this Court
under Article 226 of the Constitution of India cannot
be travel beyond the scope of the writ petition.
25. As discussed (supra), since the instant writ petition
has been filed challenging the publication of
notification under Section 4 of the Act of 1894 and
since no subsequent averments have been made on
behalf of the writ petitioner praying appropriate
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relief under Section 24(2) of the said Act of 2013 and
also in view of the discussion made in the forgoing
paragraph, this Court considers the instant writ
petition is devoid of any merit and is thus dismissed.
26. There shall, however, be no order as to costs.
27. Urgent Xerox certified copy of this order, if applied
for, be given to the parties upon compliance of all
necessary formalities.
(Partha Sarathi Sen, J.)