Calcutta High Court (Appellete Side)
Hemanta Kumar Das vs Union Of India & Ors on 20 June, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Sen
WPA 4846 of 2023
Hemanta Kumar Das
Vs.
Union of India & Ors.
With
WPA 4985 of 2023
Tapas Kumar Ghosh
Vs.
Union of India & Ors.
With
WPA 4986 of 2023
Prabir Kumar Ghosh
Vs.
Union of India & Ors.
For the petitioners : Mr. Ujjal Ray
For the State in WPA 4846 : Mr. Chadi Charan De, AGP
of 2023 and WPA 4985 of Mr. Anirban Sarkar
2023
For the State in WPA 4985 : Mr. Soumitra Bandyapadhyay
of 2023 Mr. Subhasish Bandyapadhyay
For the respondent no. 11 : Ms. Rini Bhattacharyya
Heard on :: 20.06.2025
Judgment on : 20.06.2025
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PARTHA SARATHI SEN, J.:
1. Since the identical set of facts and identical questions of law are
involved in the instant three writ petitions, this Court proposes to
dispose of the instant three writ petitions by a common judgment.
2. Learned advocate for the writ petitioners filed three separate
exceptions to the supplementary affidavits as filed by the respondent
no. 11/authority in connection with the instant three writ petitions.
3. Let the three exceptions as filed today on behalf of the writ
petitioners be taken on record.
4. By filing the instant three writ petition the writ petitioners have
prayed for issuance of the appropriate writ/writs against the
respondents/authorities more specifically; against the respondent
no. 2 for quashing of the orders dated 28.08.2022 whereby and
whereunder the writ petitioners’ claim for having job in lieu of
acquired land has been turned down.
5. In course of his submission Mr. Ray, learned advocate appearing on
behalf of the writ petitioners at the very outset draws attention of
this Court to paragraph no. 2 of the reports as submitted by the
respondent no. 11 and as affirmed on 20.11.2023. It is submitted
by Mr. Ray that from the averments made in paragraph no. 2 of the
said report dated 20.11.2023 it would reveal that it is the specific
case of the respondent no. 11/authority that the declaration under
Section 20E (1) was published in the Gazette of India on 14.07.2016
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under Section 20E (2) of the Railways (Amendment) Act, 2008
(hereinafter referred to as the ‘said Act of 2008).
6. At this juncture, Mr. Ray draws attention of this Court to Section 2
of Act 30 of 2013 which deals with the application of the Act of 2013.
It is submitted by Mr. Ray that in view of the provision of Section 2
(2) (a) there cannot be any doubt that the provisions of Act 30 of
2013 applies to the land acquisition which is subject matter of the
instant lis. It is further submitted by Mr. Ray that from the copy of
the order under challenge as passed by the respondent no.
2/authority it would reveal that the respondent no. 2/authority
being the competent authority passed the award as per provisions
laid down in the Act 30 of 2013.
7. In course of his submission Mr. Ray took me to Chapters IV and V of
the Act 30 of 2013. It is submitted by Mr. Ray that Sections 26 to
30 of the Act 30 of 2013 deals with the subject of determination of
market value of land by the collector, determination of amount of
compensation, parameters to be considered by collector in
determination of award, determination of value of things attached to
land of building and award of solatium. At this juncture, Mr. Ray
requests this Court to peruse Schedule 1 of Act 30 of 2013. It is
submitted by Mr. Ray that the first Schedule of Act 30 of 2013
clearly indicates as to how and on the basis of what factors
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compensation would be determined by the collector including the
amount of solatium.
8. In his next limb of submission Mr. Ray contends that Chapter V of
the said Act of 2013 deals with rehabilitation and resettlement
award. At this juncture, Mr. Ray again draws attention of this Court
to the second Schedule of Act 30 of 2013. It is submitted by Mr. Ray
that the second Schedule is the enabling provisions for the collector
for taking into account the factors for determination of rehabilitation
and resettlement award. It is thus submitted by Mr. Ray that the
determination of rehabilitation and resettlement award under
Chapter V of Act 30 of 2013 is independent and the same is no way
related to the determination of the compensation and award of
solatium as has been dealt with in Chapter IV of the Act 30 of 2013.
9. At this juncture, Mr. Ray draws attention of this Court to the serial
no. 4 of the second Schedule of Act 30 of 2013 which deals with
‘choice of annuity or employment’. It is submitted by Mr. Ray that in
the event the serial no. 4 of the second Schedule of Act 30 of 2013 is
read along with the provision of Section 31 of the Act 30 of 2013, the
only logical conclusion that can be drawn is that the appropriate
Government is duty bound to ensure that the affected families are
provided with the three options as has been mentioned in Clauses
(a), (b) and (c) of Column no. 3 of the self-same serial.
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10. It is pertinent mention herein that Clause (a) of Column no. 3 of
Serial no. 4 deals with arrangement for a job in the relevant project
to at least one member per affected family, Clause (b) of the self-
same serial provides for onetime payment of Rs. 5 lakhs per affected
family and Clause (c) of the self-same serial provides for payment of
Rs. 2,000/- per month per family for 20 years with appropriate
indexation to the consumer price index for agricultural labours.
11. At this juncture, Mr. Ray further draws attention of this Court to
page no. 32 of the instant writ petition being a copy of the memo
dated 23.05.2015 as issued by the Ministry of Railways (Railway
Board) addressed to the respondent no. 11/authority. It is
submitted by Mr. Ray that from the said memo dated 23.05.2015 it
would reveal that the Railway Board had approved the entitlement
matrix for Dedicated Freight Corridor in accordance with the
provisions of the Act 30 of 2013. It is further submitted by Mr. Ray
that from the enclosure to the said memo dated 23.05.2015 it would
reveal further that the Railway Board has practically adopted the
provisions of the second Schedule in verbatim which would be
evident from page nos. 36 to 38 of the instant writ petition.
12. It thus submitted by Mr. Ray that the respondent no. 2/authority
while passing the order dated 28.09.2022 has failed to consider the
true spirit of the Act 30 of 2013 vis-à-vis the said memo dated
23.05.2015 including its annexures. It is further submitted by Mr.
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Ray that in the supplementary affidavit the respondent no.
11/authority had also relied upon the self-same memo dated
23.05.2015.
13. Drawing attention to page no. 23 of the instant writ petition being a
copy of the memo dated 11.11.2019 as issued by the Ministry of
Railways addressed to General Manager of all the Zonal Railways it
is submitted by Mr. Ray that from the said memo dated 11.11.2019
it would reveal that it has been communicated to all the General
Managers of the Zonal Railways that the Ministry of Railway had
withdrawn its earlier policy of offering appointment in railways to the
affected land losers. It is submitted by Mr. Ray that the respondent
no. 11/authority cannot be permitted to take advantage of the said
memo dated 11.11.2019 since the said memo has got no
retrospective effect.
14. It is thus submitted by Mr. Ray that in view of the clear legislative
mandate as embodied in Act 30 of 2013 there cannot be any
justification on the part of the respondent no. 2/authority to deprive
the writ petitioner from his entitlement of job on account of
acquisition of the land of the writ petitioner. It is thus submitted
that appropriate relief/reliefs may be granted to the writ petitioner in
terms of the prayers made in the instant writ petition.
15. Per contra, Mr. De, learned Additional Government Pleader
appearing for the respondent State and its functionaries, submits
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before this court that it is undisputed that the entire acquisition
proceeding has been completed as per the provision of Railways Act,
1989 (hereinafter referred to as ‘the said Act of 1989’ for short) as
has been amended under the Railways (Amendment) Act, 2008. In
course of his submission Mr. De draws attention of this court to
Section 20F of the said Act of 1989. It is submitted by Mr. De that
Section 20F of the said Act of 1989 deals with the determination of
the amount payable as compensation on account of acquisition of
land by the competent authority.
16. It is further submitted by Mr. De that Section 20F(6) of the said Act
of 1989 clearly postulates that in the event the amount of
compensation as determined by the competent authority is not
acceptable by either of the parties, the amount would be determined
by the arbitrator to be appointed by the Central Government.
17. It is further submitted by Mr. De that Section 20F(6) of the said Act
of 1989 is almost equivalent to Section 3G(5) of the National
Highways Act of 1956. It is thus submitted by Mr. De that on
account of availability of alternative and efficacious remedy the
instant writ petition is not maintainable.
18. Ms. Bhattacharya, learned advocate appearing for the respondent
no.11 while adopting the argument of Mr. De, draws attention of this
court to the supplementary report as affirmed on 11.06.2024 and as
submitted by the respondent no.11 authority. It is submitted by Ms.
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Bhattacharya that page 4 of the said supplementary affidavit that it
has been specifically averred on affidavit that the subject land was
acquired for DFCCIL Project which is planned on Public Private
Partnership (PPP) model and thus creation of job in such section
does not fall within that provision. It is further submitted by Ms.
Bhattacharya that it is also the specific case of the respondent no.11
that in absence of any employment generation in the project of
respondent no.11 authority, the relief as sought for by the writ
petitioner in the instant writ petition cannot be granted and thus the
instant writ petition is liable to be dismissed.
19. For effective adjudication of the instant lis, this court at the very
outset proposes to look to the provision the Act 30 of 2013.
Undoubtedly Act 30 of 2013 was brought into force with effect from
01.01.2014.
20. Some of the Sections of Act 30 of 2013 are quoted hereinbelow in
verbatim.
“2. Application of Act. –
(1) ………………………………………
(2) The provisions of this Act relating to land acquisition,
consent, compensation, rehabilitation and resettlement,
shall also apply, when the appropriate Government
acquires land for the following purposes, namely, :-
(a) for public private partnership projects, where the
ownership of the land continues to vest with the
9government, for public purpose as defined in sub-section
(1):
(b) for private companies for public purpose, as defined in
sub-section (1).
(3) …………………………………………….‖
―27. Determination of amount of compensation.-The
Collector having determined the market value of the land
to be acquired shall calculate the total amount of
compensation to be paid to the land owner (whose land
has been acquired) by including all assets attached to the
land.
28. Parameters to be considered by Collector in
determination of award.-In determining the amount of
compensation to be awarded for land acquired under this
Act, the Collector shall take into consideration–
firstly, the market value as determined under
section 26 and the award amount in accordance with the
First and Second Schedules;
secondly, the damage sustained by the person
interested, by reason of the taking of any standing crops
and trees which may be on the land at the time of the
Collector’s taking possession thereof;
thirdly, the damage (if any) sustained by the
person interested, at the time of the Collector’s taking
possession of the land, by reason of severing such land
from his other land;
fourthly, the damage (if any) sustained by the
person interested, at the time of the Collector’s taking
possession of the land, by reason of the acquisition
10
injuriously affecting his other property, movable or
immovable, in any other manner, or his earnings;
fifthly, in consequence of the acquisition of the
land by the Collector, the person interested is compelled to
change his residence or place of business, the reasonable
expenses (if any) incidental to such change;
sixthly, the damage (if any) bona fide resulting
from diminution of the profits of the land between the time
of the publication of the declaration under section 19 and
the time of the Collector’s taking possession of the land;
and
seventhly, any other ground which may be in the
interest of equity, justice and beneficial to the affected
families.
29. Determination of value of things attached to
land or building.-(1) The Collector in determining the
market value of the building and other immovable property
or assets attached to the land or building which are to be
acquired, use the services of a competent engineer or any
other specialist in the relevant field, as may be considered
necessary by him.
(2) The Collector for the purpose of determining the value of
trees and plants attached to the land acquired, use the
services of experienced persons in the field of agriculture,
forestry, horticulture, sericulture, or any other field, as
may be considered necessary by him.
(3) The Collector for the purpose of assessing the value of
the standing crops damaged during the process of land
acquisition, may use the services of experienced persons in
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the field of agriculture as may be considered necessary by
him.
30. Award of solatium.-(1) The Collector having
determined the total compensation to be paid, shall, to
arrive at the final award, impose a ―Solatium‖ amount
equivalent to one hundred per cent. of the compensation
amount.
Explanation.–For the removal of doubts it is hereby
declared that solatium amount shall be in addition to the
compensation payable to any person whose land has been
acquired.
(2) The Collector shall issue individual awards detailing
the particulars of compensation payable and the details of
payment of the compensation as specified in the First
Schedule.
(3) In addition to the market value of the land provided
under section 26, the Collector shall, in every case, award
an amount calculated at the rate of twelve per cent. per
annum on such market value for the period commencing on
and from the date of the publication of the notification of
the Social Impact Assessment study under sub-section
(2)of section 4, in respect of such land, till the date of the
award of the Collector or the date of taking possession of
the land, whichever is earlier.
31. Rehabilitation and Resettlement Award for
affected families by Collector.-(1) The Collector shall
pass Rehabilitation and Resettlement Awards for each
affected family in terms of the entitlements provided in the
Second Schedule.
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(2) The Rehabilitation and Resettlement Award
shall include all of the following, namely:–
(a) rehabilitation and resettlement amount
payable to the family;
(b) bank account number of the person to which
the rehabilitation and resettlement award amount is to be
transferred;
(c) particulars of house site and house to be
allotted, in case of displaced families;
(d) particulars of land allotted to the displaced
families;
(e) particulars of one time subsistence allowance
and transportation allowance in case of displaced families;
(f) particulars of payment for cattle shed and
petty shops;
(g) particulars of one-time amount to artisans and
small traders;
(h) details of mandatory employment to be
provided to the members of the affected families;
(i) particulars of any fishing rights that may be
involved;
(j) particulars of annuity and other entitlements to
be provided;
(k) particulars of special provisions for the
Scheduled Castes and the Scheduled Tribes to be
provided:
Provided that in case any of the matters specified under
clauses (a) to (k) are not applicable to any affected family
the same shall be indicated as ―not applicable‖: Provided
further that the appropriate Government may, by
13notification increase the rate of rehabilitation and
resettlement amount payable to the affected families,
taking into account the rise in the price index.‖
21. At this juncture, this court proposes to look to Serial No.4 of the
second schedule of Act 30 of 2013 which is also set out below:
Sl. Elements of Entitlement/Provision Whether provided or
No. Rehabilitatio not (if provided,
n and details to be
Resettlement given)
Entitlements
(1) (2) (3) (4)
4. Choice of Annuity or The appropriate
Employment Government shall ensure
that the affected families
are provided with the
following options: (a)
where jobs are created
through the project,
‘after providing suitable
training and skill
development in the
required field, make
provision for
employment at a rate not
lower than the minimum
wages provided for in
any other law for the
time being in force, to at
least one member per
affected family in the
project or arrange for a
job in such other project
as may be required; or
(b) one time payment of
five lakhs rupees per
affected family; or
(c) annuity policies that
shall pay not less than
two thousand rupees per
month per family for
twenty years, with
appropriate indexation to
the Consumer Price
Index for Agricultural
Labourers.
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22. This court has meticulously perused the entire materials as placed
before this court. This court has given its anxious consideration
over the submissions of the learned advocates for the contending
parties. This court has also gone through the different provisions of
the Act 30 of 2013 which are quoted in the foregoing paragraphs.
23. On perusal of Section 2(2) of the Act 30 of 2013, it reveals that Act
30 of 2013 applies in case of acquisition of land for Public Private
Partnership (PPP) project. From the supplementary affidavit as filed
by the respondent no.11 authority, it further reveals to this court
that the stretch of land has been acquired on Public Private
Partnership (PPP) model.
24. In view of such, this court has no hesitation to hold for the purpose
of determination of compensation, rehabilitation and resettlement,
the provision of Act 30 of 2013 is applicable which is further evident
from the memo under challenge as issued by the respondent no.2
authority.
25. At this juncture, if I look to the title of the Act 30 of 2013, it reveals
to this court that the legislatures in Section 1 clearly mandate that
Act 30 of 2013 would be called ‘Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013‘. It thus appears to this court that while enacting Act 30
of 2013, the legislatures have put stress not only on fair
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compensation but also in case of transparency in rehabilitation and
resettlement on account of land acquisition.
26. It further appears to this court that determination of compensation
under Section 27 and award of solarium under Section 30 of Act
2013 finds its place in Chapter IV whereas Section 31 which deals
with rehabilitation and resettlement award finds its place in Chapter
V.
27. On careful reading of the aforementioned sections as quoted supra
together with first schedule and second schedule of the Act 30 of
2013, it reveals to this court that the object of Act 30 of 2013 is not
only for determination and disbursement of compensation but also
for rehabilitation and resettlement of the land losers.
28. On behalf of the respondent State as well as the respondent no.11,
much stress was placed under Section 20F(6) of the said Act of
1989. It has been strenuously argued by Mr. De and Ms.
Bhattacharya, learned advocates for the State and respondent no.11
respectively that in the event the land loser is aggrieved with the
amount of compensation, his remedy lies before the arbitrator.
29. In considered view of this court, such submissions as have been
advanced from the respondent State as well as the respondent no.11
are not acceptable inasmuch as Section 20F(6) of the said Act of
1989 clearly indicates the forum where an aggrieved party shall have
to approach, if the amount of compensation is not acceptable to him.
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30. However, the subject matter of the instant writ petition is quite
different inasmuch as the writ petitioner has approached before this
court not an account of inadequacy of compensation but on account
of refusal by the respondent no.2 to rehabilitate and resettle him in
terms of the provision of Section 31 read with Serial No.4 of the
second schedule of the Act 30 of 2013.
31. In course of her argument, Ms. Bhattacharya also put much stress
upon the memo dated 11.11.2019 wherein the Railways Board
under Ministry of Railways had adopted a decision for withdrawal of
the earlier policy. This court is of considered view that such memo
dated 11.11.2019 is no way helpful either to the respondent no.11 or
to the respondent State, more specifically to the respondent no.2
authority inasmuch as it is the statutory mandate of Act 30 of 2013
to take steps for rehabilitation and resettlement for affected families
on account of land acquisition.
32. It has been strongly contended by Ms. Bhattacharyya, learned
advocate appearing for the respondent no. 11/authority that it is the
further specific case of the respondent no. 11/authority that the
project for which land of the writ petitioner was acquired does not
generate any employment and, therefore, the respondent no.
2/authority is justified in passing the order under challenge.
33. This Court has meticulously gone through the provision of serial no.
4 of the second schedule of Act 30 of 2013 which clearly indicates
17
the legislative mandate that the appropriate government shall ensure
the affected families are provided with the three options as
mentioned under Clauses (a), (b) and (c) in column no. 3 i.e., under
the column Entitlement/Provision. It further appears to this Court
that in the event, relief (a) cannot be granted, the affected families
are to be provided with the options as mentioned in Clauses (b) and
(c) of the column no. 3 i.e., one-time payment or annuity policies.
34. At this juncture, if I look to the order dated 28.09.2022 as passed by
the respondent no. 2/authority, it reveals that the respondent no.
2/authority had failed to visualize the true spirit of Section 31 of Act
30 of 2013 read with the provision of serial no. 4 of the second
schedule of Act 30 of 2013.
35. In view of such, this Court has got no hesitation in mind that the
orders under challenge dated 28.09.2022 as passed by the
respondent no. 2/authority are vitiated for non-consideration of the
relevant provisions of law and the same is perverse.
36. In view of such, this Court finds sufficient merit in the instant writ
petition.
37. Accordingly, the instant writ petitions are hereby allowed.
38. Consequently, the orders dated 28.09.2022 are hereby quashed and
set aside.
39. Before parting with this Court directs the respondent no.
2/authority to consider the entitlement of the writ petitioners afresh
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in terms of the provision of Section 31 read with serial no. 4 of the
2nd schedule of the Act 30 of 2013 and after giving an opportunity of
hearing to the writ petitioners and/or his/their authorized
representative(s) as well as the respondent no. 11 and/or its
authorized representative shall pass reasoned orders and to
communicate the said reasoned orders both to the writ petitioners
and the respondent no. 11 within 45 working days from the date of
communication of the server copy of this judgment.
40. Before parting with, it is further made clear that since before this
Court respondent no. 11 has specifically made out a case regarding
non-generation of any employment in the project for which
acquisition has been done, the respondent no. 2/authority is
directed to make a thorough enquiry and assign his reason in his
reasoned orders while considering the entitlement/disentitlement of
the writ petitioner as the case may be strictly in terms of the
provision of serial no. 4 of the second schedule of the Act 30 of 2013.
41. Liberty is given to the learned advocate for the writ petitioner to
communicate the server copy of this judgment to the respondent no.
2/authority forthwith.
42. The respondent no. 2/authority is directed to act on the server copy
of this judgment.
43. The time limit as fixed by this Court is mandatory and peremptory.
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44. With the aforementioned observations, the instant three writ
petitions are disposed of.
45. 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.)
Suvayan Ghosh
S. Biswas
Sourav Banerjee
A.R. (Court)s