Calcutta High Court (Appellete Side)
Smt. Ram Dulari Jaiswal vs State Of West Bengal &Ors on 14 May, 2025
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IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present :
The Hon'ble Justice Partha Sarathi Chatterjee
WPA 3038 of 2016
Smt. Ram Dulari Jaiswal
Vs.
State of West Bengal &Ors.
For the petitioner : Mr. Amit Kumar Pan,
Mrs. Tanusri Santra.
For the State : Mr. Chandi Charan De, Ld. AGP,
Mr. Anirban Sarkar.
For the Respondent no. 4 A : Mr. Debabrata Banerjee,
Mr. Samir Chakraborty,
Mr. Hemana Das.
Heard on : 30.04.2025 Judgment on : 14.05.2025 Partha Sarathi Chatterjee, J.:- Prelude:
1. By filing this writ petition, the petitioner prays for issuance of a writ of
mandamus, commanding the respondents to issue a formal order for the de-
acquisition of four plots of land, bearing Plot Nos. 935, 936, 937, and 970,
measuring approximately 0.0695 acre, 0.500 acre, 0.30 acre, and 0.25 acre,
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respectively, located in Mouza-Raigachi, J.L. No. 12, P.S.-Rajarhat, District –
North 24-Parganas (hereinafter referred to as “the said lands‖).
Petitioner’s case:
2. Before addressing the issue raised in this writ petition, it would be prudent to
outline the key facts as projected in the writ petition.
3. In connection with the Rajarhat New Township project, the Collector,
Respondent No. 2, initiated land acquisition proceedings under Case No. LA-4/7
of 2000-01, pursuant to the provisions of the Land Acquisition Act, 1894
(hereinafter referred to as “the Act, 1894”). These proceedings resulted in the
acquisition of a large tract of land, including the plots referred to above.
4. On 13th May 2022, Notification No. 50-LA-4/7 of 2000-01/NTP, dated 24th
April, 2022, was published under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as “the Act I of 1894”). The notification also indicated
that the provisions of Section 17 of the Act had been invoked. Subsequently, a
notification under Section 6 of the Act was published in the Calcutta Gazette on
19th June, 2002.
5. On or about 12th August 2002, the petitioner was served with a notice under
Sub-sections (3) and (4) of Section 9 of the Land Acquisition Act, 1894,
instructing the petitioner to appear before Respondent No. 2 on 23rd August,
2002 to stake a claim regarding their interest and entitlement to compensation in
respect of the aforementioned plots of land. The petitioner duly complied with
the notice, appeared before the Collector on 23rd August, 2002, and presented all
relevant documents supporting their rightful title and interest in the lands.
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6. Although upon receipt of notices under Sub-sections (3) and (4) of Section 9
of the Act I of 1894, the petitioner produced all documents related to those lands
no notice under Section 12 (2) of the Act has been served upon her nor any
compensation has been paid to him as well as no amount has been deposited in
terms of the provisions of Section 31 Act I of 1894.
7. The Land Acquisition Act, 1894 was repealed with effect from 1 st January,
2014, and a new legislation, namely the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013
(hereinafter referred to as “the 2013 Act”), came into force. The petitioner
contends that, in light of the provisions of Section 24 of the 2013 Act, the
proceedings initiated under the 1894 Act are to be deemed to have lapsed. It is
further the petitioner’s case that, despite approaching the competent authority on
several occasions, no favorable response was received, prompting the petitioner
to file this writ petition.
Respondents’ case:
8. Upon concluding that the present writ petition ought to be decided after the
exchange of affidavits between the parties, a co-ordinate Bench of this Court
directed the respondents to file an affidavit-in-opposition, granting liberty to the
petitioner to file a reply thereto.
9. The affidavit filed on behalf of Respondent Nos. 2, 3, and 4 states that the
acquisition proceedings were initiated for the public purpose of the Rajarhat New
Township Project, invoking the provisions of Section 17(4) of the Land
Acquisition Act, 1894, and included the aforementioned plots in their entirety,
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along with other plots such as R.S. Plot Nos. 3466 (part) and 3467 (full) of Mouza
– Gopalpur. The notification under Section 4 of the Act was published in the
Kolkata Gazette (Extraordinary) on 13th May 2002 and was also duly published in
a daily newspaper, in compliance with the statutory requirements. Thereafter, the
declaration under Section 6 of the Act was duly published in the Calcutta Gazette
(Extraordinary) on 5th June 2002.
10. The notice under Sections 9(3) and 9(4) of the Act I of 1894 was served upon
the petitioner on 9th August, 2002 for the purpose of title verification. However,
as the petitioner’s title could not be verified, the concerned plots were recorded
with a status of “Not Verified.” Consequently, the award in respect of those plots
was declared with an endorsement indicating the ―Not Verified‖ status. In respect
of R.S. Plot No. 3466 (part) and 3467 (full) of Mouza – Gopalpur, the award was
declared in the names of several individuals, including the petitioner. The
compensation amount payable to the petitioner was deposited before the Court of
the Learned Special Judge through Cheque No. 042678 dated 16th May, 2006.
11. These answering respondents specifically contended that the said plots of
land were handed over to the requiring body on 21st February, 2003. They further
asserted that the acquisition proceedings were conducted and concluded in a
time-bound manner, strictly in accordance with the due process of law. They also
pointed out that the petitioner remained silent for more than a decade and only
filed this writ petition in 2016, seeking de-acquisition of the said lands.
Therefore, according to them, there is no question of issuing any formal order for
de-acquisition of the said plots applying the proposition set in the decision,
reported in (1965) 5 SCC 530 (Buddhi Kota Subbarao vs. K. Parasaran).
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12. The affidavit-in-opposition filed by the requiring body (Respondent No. 4A)
echoed the submissions made by the other respondents, reiterating the relevant
facts and contending that the petitioner’s prayer cannot be entertained at this
belated stage.
Contents of Affidavit-in-reply:
13. In the affidavits-in-reply, the petitioner contended that the respondents’
statement that the petitioner’s title in respect of those plots of land could not be
verified is misleading statement. Award was not declared within the time
stipulated in Section 11A of Act I of 1894 and the judgment of Buddhi Kota
Subbarao (supra) has no manner of application in the present case.
Submissions:
14. Mr. Pan, learned advocate appearing for the petitioner, contended that
although in the present case a notice under Sub-sections (3) and (4) of Section 9
of the Land Acquisition Act, 1894 was duly served upon the petitionerand in
compliance therewith, the petitioner submitted all documents pertaining to the
title of the said plots of land; however, no notice under Section 12(2) of the Act
was ever served on the petitioner, nor was the compensation amount deposited in
accordance with the provisions of Section 31 of the said Act.
15. He submitted that this Court had called for the order sheet prepared and
maintained in connection with the acquisition proceedings. Referring specifically
to the entries dated 07.08.2003 and 24.08.2004, he emphasized the language
used therein–such as “statement and award may kindly be approved and
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award amounting to Rs. 5,22,260/- prepared in Form 12 and 13A is placed
below for kind approval”and argued thatprior approval of the appropriate
government, which, according to him, is a mandatory requirement before the
declaration of an award in terms of the proviso to Section 11 of the Land
Acquisition Act, 1894 had not been obtained. According to him, since no such
prior approval was obtained in the present case, the award cannot be treated as a
valid award in the eyes of law.
16. He further submits that in the present case, the respondents invoked the
provisions of Section 17 of the Act I of 1894, citing urgency as the reason for
acquiring the said lands. However, till date, possession has not been taken from
the petitioner, which, according to him, clearly indicates that no real urgency
existed. He further contends that Sub-section (3A) of Section 17 of the Act I of
1894 mandates the respondents to pay 80% of the compensation amount before
taking possession of the land. He questions the legality of the award on the
ground that non-compliance with this mandatory provision under Section 17(3A)
renders the award invalid. In support of his contention, he relied on the decisions
reported at 1994 (5) SCC 686 (State of Uttar Pradesh Vs. Rajiv Gupta), (2016) 6
SCC 150 (ChandrakantAdinathUtture Vs. State of Maharashtra and Ors.),
(2015) 10 SCC 241 (Laxmi Devi Vs. State of Bihar and Ors.), (2012) 5 SCC 365
(MulchandKhanumalKhatri Vs. State of Gujarat and Ors.), and (2012) 1 SCC
792 (Raghbir Singh Sehrawat Vs. State of Haryana and Ors.).
17. In rebuttal, Mr. Dey, learned Additional Government Pleader appearing for
the State respondents, submitted that in the present case, the notification under
Section 4 read with Section 17(4) of the Land Acquisition Act, 1894 was duly
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published both in the Gazette and in a newspaper, in compliance with the
relevant statutory provisions and the declaration under Section 6 of the said Act
was also duly published thereafter. It was his contention that the award was
made in accordance with the prescribed procedure, including obtaining the
requisite approval from the appropriate government, and within the time limit
stipulated under Section 11A of the Act.
18. He pointed out that all other interested persons, whose lands were acquired
under the same notification, have accepted their compensation, and possession
has already been handed over to the requiring body. He argued that even if it is
now found that the petitioner has re-entered or continued in possession of the
said lands, such possession would be unlawful.
19. He submitted that the statute must be read in its entirety to ascertain the true
intention of the legislature. Referring to Sections 11A and 17(3A) of the Land
Acquisition Act, 1894, he argued that Section 11A prescribes a specific time frame
for making an award and includes a default clause, thereby indicating that the
provision is mandatory in nature. In contrast, since Section 17(3A) does not
contain any such default clause, it cannot be treated as a mandatory provision.
He asserted that the provisions of Section 17(3A) are merely directory in nature.
20. Referring to the order dated 17th February, 2003 from the order sheet, as
mentioned in the preceding paragraph, wherein it was recorded that “award has
been declared”, he submitted that the award was, in fact, declared after obtaining
the necessary approval from the appropriate government. However, for the
purpose of completing subsequent procedural formalities, the file was placed
before the superior authority for further approval. Therefore, according to him,
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the petitioner’s contention that the award was declared without prior approval
from the appropriate government is misconceived and without any merit.
21. He further submitted that the award in the present case was declared in the
year 2003, whereas the writ petition has been filed only in 2016, after an
inordinate delay of 13 years. He contended that such a belated challenge in
matters relating to land acquisition proceedings is not maintainable and ought
not to be entertained by the Court. In support of his submission, he relied on the
decision reported at (2020) 8 SCC 129 (Indore Development Authority vs.
Manohar Lal and Ors.).
22. Mr. Banerjee, learned advocate appearing on behalf of the requiring body
(Respondent No. 4A), adopted the submissions made by Mr. Dey. In addition, he
submitted that in the present case, possession of the land had been taken in the
year 2003. He stated that the requiring body had deposited the requisite funds
within the time stipulated by the authorities, and the award was declared in
accordance with the prescribed procedure. Emphasizing the delay, he pointed out
that while the award was made in 2003, the present writ petition was filed only in
2016 i.e. after a lapse of 13 years, which, according to him, renders the petition
liable to be dismissed on the ground of delay and laches. In support of his
argument, Mr. Banerjee also relied upon the decision of Indore Development
Authority (supra).
Analysis:
23. Ordinarily, a writ petition filed after an inordinate delay is liable to be
dismissed on the ground of delay and laches. Delay and laches is a significant
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factor to be considered by the Court while exercising its discretionary jurisdiction
under Article 226 of the Constitution of India. In appropriate cases, the High
Court may decline to invoke its extraordinary writ jurisdiction where there has
been a clear lapse, negligence, or omission on the part of the petitioner to assert
his or her rights within a reasonable time. While there is no rigid or universal
formula to determine such delay, where the factual matrix clearly reveals that the
petitioner has been inactive or has slept over his or her rights, or has chosen to
remain a fence-sitter for years together, even a claim involving the alleged
violation of fundamental rights may not be entertained. In support of this
proposition, a useful reference may be made to the decision reported at (1969) 1
SCC 185 (Durga Prasad vs. Chief Controller of Imports and Exports).
24. In land acquisition proceedings, the validity of various stages of the process
can be subjected to judicial scrutiny. A landowner may challenge the notification
issued under Section 4(1) of the Land Acquisition Act, 1894. Although in the
present case, the provisions of Section 5A are not applicable since the State
invoked the urgency clause under Section 17, in other cases, a declaration under
Section 6 may be challenged on the ground of non-compliance with the
requirements of Section 5A. Similarly, a notice issued under Section 9 or an
award passed under Section 11 of the Act may also be assailed. A landowner can
further contest the award on the ground that it was not made within the time
limit prescribed under Section 11A. Additionally, the invocation of Section 17 can
itself be challenged if it is shown that there was no real urgency justifying the
bypassing of the safeguards otherwise available to the landowner.
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25. Therefore, a delayed attempt to challenge land acquisition proceedings,
particularly after the award has been declared and possession has been taken,
must be addressed with caution. In the present case, the award was declared in
the year 2003, and it is asserted that possession was also taken in the same year.
However, the petitioner, having remained inactive for a prolonged period of 13
years, has approached this Court only in 2016 by filing the present writ petition.
In such circumstances, the plea of delay and laches raised by the respondents
carries substantial weight and cannot be disregarded.
26. However, although it has been concluded that the petitioner’s action is
clearly belated, yet without rejecting the petition solely on the ground of delay
and laches, let me to proceed further and examine whether the petitioner’s
challenge to the acquisition proceedings warrants acceptance even on merits.
27. The petitioner’s principal ground for challenging the legality of the award is
that it was declared without obtaining prior approval from the appropriate
government. As noted earlier, in support of this contention, the petitioner has
relied on specific language such as ―may be approved‖ recorded in the order sheet
maintained in connection with the acquisition proceedings, arguing that such
terminology indicates the absence of the requisite prior approval.
28. The first proviso to Section 11 of the Act-I of 1894 states that no award shall
be made by the Collector under sub-section (1) of Section 11 without the prior
approval of the appropriate government or an officer authorized by the
appropriate government. The second proviso, however, allows the appropriate
government to direct the Collector to make an award without such approval in
certain specified cases.Therefore, prior approval is required before making an
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award under Section 11 of the Act-I of 1894, unless the proceeding falls under a
specified category as outlined in the second proviso.
29. The order sheet shows that the notification under Section 4(1) of the Act was
approved on 2nd May 2002, and the declaration under Section 6 received
approval on 12th June 2002. The order dated 7th February 2003 indicates that the
award, prepared in accordance with Sections 12, 13, and 13A of the Act, along
with the ‘award note,’ was placed for approval by the Additional Land Acquisition
Officer. At the foot of the order dated 7th February 2003, the signature of the
District Magistrate and Joint Secretary (ex-officio) to the Government of West
Bengal is evident.
30. Order No. 17, dated 17.02.2003, recorded that the ‗award has been declared.’
Similarly, Order No. 18, issued on the same date, noted that ‗payment made, and
the possession of the land was to be handed over to the Requiring Body (i.e.,
Housing Department).’ This order sheet further specifies that possession was
transferred to the representative of the Requiring Body. On 27.02.2003, an order
was issued noting that, following these actions, certain landowners, mostly new
purchasers, appeared at the Collector’s office and expressed their ignorance
about the proceedings. To address this concern, necessary permission was sought
from the superior authority. Subsequent orders pertained to the sub-allotment of
funds. The order dated 7.08.2003 indicated that post-award verification was
conducted, and the award was prepared and placed for approval. The order dated
8.07.2004 reveals that despite these actions, a large number of new purchasers
continued to approach the office, prompting the office to take further steps to
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resolve the issue. As a result, the award was amended under the provisions of
Section 13A of the Act.
31. Therefore, Mr. Pan’s focus on the words ‗may be approved’ relates specifically
to post-award actions, particularly the approval of the estimated amount of
compensation. The award was amended in accordance with the provisions of
Section 13A of the Act, and the corrected award was subsequently approved. It is
important to note that approval from the appropriate government for the award
and for the estimated amount of compensation are distinct matters. As such, the
petitioner’s challenge to the legality of the award, based on the words ‗may be
approved,’ cannot be upheld.
32. It is a well-established legal principle that when the State takes possession of
land under Section 17(1) of the Act, and after the publication of the notifications
under Sections 4 and 6 of the Act, the land is deemed to have already vested in
the State. In such circumstances, Section 11A does not apply, and even if the
award is declared within the time frame specified in Section 11A, the proceedings
do not lapse. To support this view, reference can be made to the decision of
Indore Development Authority(supra) and also to the decision, reported in
(1996) 6 SCC 424 (Allahabad Development Authority vs. Nasiruzzaman)
(emphasis is mine).
33. Even if Mr. Pan’s contention that although the State initially invoked the
provisions of Section 17 of the Act, it subsequently followed the usual procedure
as in other land acquisition proceedings is accepted, it can still be stated that, in
the present case, once the award was declared and possession was taken, the land
had vested in the State under Section 16 of the Act.
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34. In the decision of Indore Development Authority (supra), while referring to
the judgment in S.P. Jain v. State of UP, reported at (1993) 4 SCC 369, along with
other related decisions, the Hon’ble Supreme Court ruled that the use of the word
‗shall’ in Section 17(3A) of the Act is directory in nature and not mandatory.
35. In the decision of Indore Development Authority (supra), in the context of a
housing development project, where the award was declared, possession was
taken, and a substantial portion of the land acquired under the proceeding had
been developed, the Hon’ble Supreme Court held that a belated challenge to the
proceeding on the grounds of lack of urgency cannot be entertained.
36. The Government, in the exercise of its eminent domain power, can acquire
land citing urgency. Unless specific evidence is placed on record to demonstrate
that the exercise of power was tainted with mala fide intentions or constituted a
colourable exercise of power, the acquisition proceeding initiated under Section
17 of the Act I of 1894 cannot be declared to be illegal.
37. There is no scintilla of doubt regarding binding precedents of the decisions
cited by Mr. Pan but those are distinguishable on facts.
Conclusion:
38. Therefore, based on the discussions and reasoning provided in the preceding
paragraphs, and after carefully considering the rival contentions of the parties, as
well as applying the propositions set forth in the decisions cited earlier, it can be
concluded that, in addition to the petitioner’s action being belated, it also cannot
be entertained on its merits.
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Order:
39. Consequently, the writ petition is, thus, dismissed. However, there shall be
no order as to the costs.
(Partha Sarathi Chatterjee, J.)
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