Calcutta High Court (Appellete Side)
Kalam Kumar Sharma And Anr vs Union Of India And Ors on 21 January, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 16098 of 2014
With
CAN 4 of 2024
Kalam Kumar Sharma and Anr.
- Vs-
Union of India and Ors.
For the Petitioners: Mr. Goutam Kumar Das, Adv.,
Mr. Indranuj Dutta, Adv.,
Ms. Benazir Sk., Adv.
For the State: Mr. Lalit Mohan Mahata, Ld. AGP,
Mr. Prasanta Behari Mahata, Adv.
For respondent: Mr. Arijit Majumdar, Adv.
Hearing concluded on: 17.01.2025. Judgment on: 21.01.2025. PARTHA SARATHI SEN, J. : -
1. In this writ petition the writ petitioners have prayed for issuance of
a writ of mandamus against the respondent/authorities for commanding
them to act in accordance with the Land Acquisition Act, 1894
(hereinafter referred to as the said ‘Act of 1894’ in short) and also to act in
accordance with the provisions 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) with a
further prayer to award compensation in favour of the writ petitioner in
respect of the plots of land which are subject matter of the instant writ
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petition with an alternative prayer for reverting back the possession of the
said plots of land to the writ petitioner.
2. It is pertinent to mention herein that in the instant writ petition the
respondent no.1 is the Union of India and the respondent nos. 2 to 5 are
the different functionaries of the South Eastern Railway Authority. The
respondent nos. 6 to 11 are however the functionaries of the State of West
Bengal.
3. It is the case of the writ petitioners that one Mithulal Sharma @
Mithu Mistry who was the grandfather of the writ petitioners was the
owner of the plots of land bearing plot nos.22, 13, 82, 225/355 in Mauja
Mathurakati Khas Jungle, J.L No.143, Touzi No. 2723, Mathurakati
Khasjungal (Nimpura), Khaitan No.2 (Old), 18, 374 (New) and 337 (New)
measuring about 7.48 acres. It is the further case of the writ petitioners
that by virtue of a probated will left behind by the said Mithu Mistry,
since deceased, the writ petitioners became owner of the said plots of land
and came into possession of the same. It is the grievance of the writ
petitioners that in respect of the said plots of land a land acquisition (LA
case no. 9 of 1964-65) was started wherein 37 decimals of land was
acquired in plot no.82 out of 56 decimals by the Land Acquisition
Collector of District Mednipur for the requiring body i.e. South Eastern
Railway and in such acquisition proceeding compensation has been
awarded.
4. It is the further case of the writ petitioner that on August, 2004 the
writ petitioner came to learn that the Railway Authority removed the
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fencing of the writ petitioners’ land, destroyed valuable trees as standing
thereon including a farm house and a big wall and subsequently
constructed railway track over the said plot of land without any land
acquisition process. It is the further case of the writ petitioner that except
the aforementioned land acquisition proceeding no further acquisition
proceeding was started by the Land Acquisition Collector of the District of
Mednipur and thus the writ petitioners’ constitutional right as enshrined
in Article 300 A of the Constitution of India has been violated at the
instance of the respondent nos. 1 to 5.
5. In the instant case the respondent nos. 1 to 5 being the Union of
India and the different functionaries of the South Eastern Railway and the
respondent nos. 6 to 11 being the different functionaries of the
Government of West Bengal filed their separate affidavits-in-opposition
wherein the contention of the writ petitioners as made in the writ petition
has been denied specifically. It has been claimed by the respondent nos. 1
to 5 i.e. the functionaries of the South Eastern Railway that they are in
lawful possession over the subject property and the subject property was
acquired on behalf of the railway authority by the Land Acquisition
Collector of the concerned district by initiating land acquisition
proceeding and some of such proceedings have been initiated and
completed even before independence.
6. Considering the rival submissions of the parties to the writ petition
a Co-ordinate Bench of this Court by its order dated 20.07.2023 passed
the following order:
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“In view of such circumstances, though the respondent No.10 is
directed to conduct survey of the entire land of the petitioners
measuring about 7.45 acre and also to demarcate 37.03 decimal of
land which was acquired by the State Government and the
compensation was paid to the 2 petitioners as well as the possession
of the remaining land on field inspection within 30 days from the
date of this order.
All parties are directed to co-operate the respondent No.10 in the
matter of survey. The petitioners are directed to file the record of
rights in respects of the land in question to the BL & LRO. The South
East Railway Authorities is also directed to produce necessary
documents relating to acquisition of the land and also the documents
on the basis of which they claim possession in respect of the land
situated outside the acquired area.”
7. Pursuant to such order a report is submitted by the Assistant
Director and BL& LRO, Kharagpur I- Paschim Mednipur under cover of
his memo no.332/KGP-1/24 dated 07.02.2024. For effective adjudication
of the instant writ petition this Court considers that the relevant portion
of the report dated 07.02.2024 as mentioned supra is required to be
looked into and the same is reproduced herein in verbatim:-
“Accordingly, on joint survey report (Annexure-E) upon the lands in
question it transpires, –
* There is no permanent structure observed upon the suit land.
*As per RS RoR, the RS plot no. 13 amounting 1.47 ac is recorded in
the name of one Mithu Mistry, son of Nanda Kishore at RS khatians
no. 337 which is presently possessed by the South East Railway
Authority by way of plantation.
* As per RS RoR, the RS plot no. 82 amounting 0.56 ac is recorded in
the name of one Mithu Mistry, son of Nanda Kishore at RS khatians
5no. 337 which is presently possessed by the South East Railway
Authority in terms of railway track.
*There is no existence of suit RS plot no. 22 and plot no. 225/355 in
any of the claimed RS khatians. That RS plot no. 22 corresponds to
LR plot no. 60 which is recorded in computerized land records in the
name of one Narsingha Bechar which is also possessed by that
railway authority by way of plantation.
*In addition to, the RS khatian 18 and 374 belong to that Mithu
Mistry, son of Nanda Kishore which do not contain any of the claimed
RS plots. It is important to note that the RS khatian no. 2 is recorded
as vested to the state in the name of collector.
*That 37.03 dl in question is coloured and sketched and demarcated
which is located under RS plot no. 82 corresponding LR plot no. 48(P),
116(P) and 121. (Annexure-F)”
8. In course of his submission Mr. Das, learned advocate appearing on
behalf of the writ petitioner submits before this Court that from the said
report it would reveal that RS Plot no. 13 measuring about 1.47 acres
though is recorded in the name of the predecessor-in-interest of the writ
petitioners but the same is in occupation of the South Eastern Railway
Authority. It is contended by him that the said report does not say
anything about any acquisition proceeding by the Land Acquisition
Collector of District Paschim Medinipur. It is thus submitted by Mr. Das
that the said report dated 07.02.2024 further reflects that in respect of RS
Plot no.82 the entire 0.56 acre of land is in possession of the South
Eastern Railway Authority in terms of railway track though acquisition
process in respect of the said plot of land was completed in respect of 0.37
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acre of land and thus in respect of 0.19 acre of land the railway authority
could not justify as to how they came into possession of the remaining
0.19 acre of land in RS plot no.82 which still stands in the name of the
predecessor-in-interest of the writ petitioners. Drawing further attention
of the court to the report Mr. Das further submits that RS plot no.22
which is corresponding to LR plot no.60 though stands in the name of one
Narsingha Bechar which is in possession of the South Eastern Railway
Authority but the writ petitioners’ predecessor-in-interest was actual
owner of the same and thus the recording in the record of right in respect
of LR Plot No.60 is wrong wherein the South Eastern Railway Authority is
found to be in possession without any acquisition proceeding and thus
depriving the writ petitioner to obtain compensation for losing the said
portion of the said plot of land.
9. It is thus submitted by Mr. Das that neither the respondent nos. 1
to 5 being the Union of India and the functionaries of Railway Authority
nor the respondent nos. 6 to 11 being the functionaries of the State of
West Bengal be permitted to grab the land of the writ petitioners depriving
them from adequate compensation as per the said Act of 2013.
10. Mr. Das in course of his argument places reliance upon the
reported decision of Vidya Devi Vs. State of Himachal Pradesh reported
in 2020 (2) SCC 569.
11. Mr. Mahata, learned advocate for the respondent/State in course of
his submission though disputed the contention of the learned advocate
for the writ petitioners, he however submits that the report dated
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07.02.2024 is correct. Mr. Mahata submits before this Court that though
the writ petitioners’ predecessor-in-interest’s name was found in the
record of right in respect of RS Plot nos.13 and 82 but because of long
lapses and delay on the part of the writ petitioners, the writ petitioners
are not entitled to any relief as prayed for in the instant writ petition. It is
further argued that plot no.14 in the said mauja is not the subject matter
of the instant writ petition though in their affidavit-in-reply the writ
petitioners made an endeavour to include the said plot with the subject
matter of the writ petition which is not permissible. Mr. Mahata places his
reliance upon the following three reported decisions namely:-
i. Banda Development Authority, Banda vs. Moti Lal
Agarwal and Ors. reported in 2011 (5) SCC 394;
ii. Indore Development Authority vs. Manoharlal And Ors.
reported in 2020 (8) SCC 129; and
iii. Simraut Kaur and Ors vs. State of Haryana and Ors.
reported in 2015 (13) SCC 563.
12. Mr. Majumdar, learned advocate for the respondent nos. 1 to 5
while adopting the argument of Mr. Mahata at the very outset draws
attention of this Court to page nos. 18 to 28 of the said report being the
copies of publication of declarations of the year 1911 and 1923 as has
been published under Section 6 of the said Act of 1894. It is argued by
Mr. Majumdar that the acquisition proceeding as started in the year 1911
and 1923 covers the land of the writ petitioners and therefore the writ
petitioners cannot be permitted to agitate that the plots of land as
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involved in the instant writ petition were never acquired. Placing reliance
upon the reported decision of Chennai Metropolitan Water Supply and
Sewerage Board and Ors. vs. T.T Murali Babh reported in (2014) 4
SCC 108 it is contended that on account of delay and laches on the part
of the writ petitioners this Court may be very slow in granting relief to the
writ petitioners in absence of any explanations on the part of the writ
petitioners to substantiate as to what prevented them to file the instant
writ petition at the earliest opportunity since the instant writ petition was
filed more than after 100 years of acquisition for laying down the railway
track.
13. After careful consideration of the entire materials as placed before
this Court and after giving due consideration over the submissions of the
learned advocates of the contending parties it appears to this Court that
so far as plot no.14 is concerned there is no averment in the instant writ
petition though in their affidavit-in-reply it has been stated by the writ
petitioners that 0.18 decimal of land in plot no.14 out of 4.1 acres of land
was/were acquired but no compensation was paid to them.
14. In considered view of this Court since the allegation of writ
petitioners in respect of plot no.14 was not there in the writ petition the
respondent/authorities did not get any opportunity to controvert the
same and thus it would be unjust if the writ petitioners are permitted to
agitate their claim in respect of the said plot no.14 at a belated stage. In
view of such, the writ petitioners are not entitled to any relief in respect of
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plot no.14 since the same does not form the subject matter of the instant
writ petition.
15. It is pertinent to mention herein that as directed by a Co-ordinate
Bench of this Court on 20.07.2023 the BL& LRO Kharagpur I, District
Paschim Mednipur submitted its report on 07.02.2024 and the
respondent nos. 1 to 5 had not filed any exception to the said report and
therefore the said report goes uncontroverted as against the respondent
nos. 1 to 5.
16. As discussed supra it has been admitted by the writ petitioners that
in respect of plot no.82 they have been paid compensation in respect of
0.37 acre and the said report reveals that South Eastern Railway
Authority however possesses the entire 56 acres. No material is
forthcoming either from the respondent nos. 1to 5 or from respondent
nos.6 to 11 as to how South Eastern Railway Authority came into
possession of balance 19 acres of land wherein railway track has been
laid. The said report reveals further that in respect of RS plot no.13
amounting to 1.47 acres of land the same is recorded in the name of
Mithu Mistry, since deceased, the predecessor-in-interest of the writ
petitioners but the entire land is presently possessed by the South
Eastern Railway Authority by way of plantation.
17. As discussed earlier in respect of plot no.13 no document is
forthcoming either from the side of the respondent nos. 1 to 5 or from
respondent nos. 6 to 11 as to how the South Eastern Railway Authority
came into possession of the said land.
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18. For the sake of argument even if it is accepted that plot nos. 82 and
13 were the subject matter of the acquisition proceeding of 1911 and/or
1923 and/or of the subsequent years the record of rights (either CS or RS
or LR) in respect of said plot of lands as has been maintained in the office
of BL&LRO must reflect the factum of such acquisition. No document(s)
with regard to the acquisition of the land in respect of 0.37 acre of land
in plot no.82 and 1.47 acres of land in RS plot no.13 is /are forthcoming
either from the Additional District Magistrate (LR) District Paschim
Mednipur or Land Acquisition Collector, District Paschim Mednipur
though the said two authorities of the Government of West Bengal are the
appropriate authorities who keep all documents of acquisition in the said
district.
19. In view of such this Court has no hesitation to hold that the writ
petitioners’ grievance in respect of plot no.82 and RS plot no.13 in the
aforementioned mauja has some basis.
20. The next question which comes for consideration before this Court
is as to whether on account of the long delay or laches, if there be any, on
the part of the writ petitioners in approaching this Writ Court the claim of
the writ petitioners can be held to be stale or not. As discussed supra
both the learned advocates of the respondent nos. 1 to 5 as well as
learned advocates for the respondent nos. 6 and 11 places their reliance
upon the reported decisions of the Hon’ble Supreme Court which has
been mentioned in the foregoing paragraphs.
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21. In considered view of this Court in the reported decision of Chennai
Metropolitan Water Supply and Sewerage Board and Ors. (supra)
though the Hon’ble Apex Court held that the doctrine of delay and laches
should not be lightly brassed aside and a writ court is required to weigh
the explanation offered and the acceptability of the same but in
considered view of this Court the said judgement has been delivered by
the Hon’ble Supreme Court in a service related matter which is
distinguishable from the facts and circumstances of the instant case.
22. The reported decision of Banda Development Authority (supra)
though deals with the subject of delay/laches in preferring a writ petition
but it appears to this Court that the said finding was given by the Hon’ble
Supreme Court wherein the writ petitioner at a very belated stage
challenged the notification for acquisition. This Court thus considers that
the reported decision of Bandra Development Authority is also
distinguishable from the facts and circumstances of the present case.
23. In considered view of this Court the reported decision of Simrat
Kaur (supra) is also distinguishable from the facts and circumstances of
the instant case since the Hon’ble Supreme Court considered it fit not to
condone the delay of 73 years 15 days of the appellant for revisiting the
quantum of award especially when the self same award was subject
matter of litigation before the Hon’ble Supreme Court at the instance of a
number of land owners who were aggrieved with the quantum of
compensation which has been finally disposed of by the Hon’ble Supreme
Court.
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24. The reported decision of Indore Development Authority (supra)
has got no application in the facts and circumstances of the instant case
since the legality of a concluding proceeding of land acquisition is not
questioned before this Court by filing the instant writ petition.
25. On careful consideration of the entire facts as placed before this
Court, this Court thus finds that the respondent nos. 1 to 5 could not
justify their possession in respect of excess 19 acres of land in plot no. 82
and 1.47 acres in RS plot no.13 which stands recorded in the name of
Mithu Mistry, the predecessor-in-interest of the writ petitioners. From the
report dated 07.02.2024 nothing is forthcoming that in respect of the
aforementioned quantum of land any acquisition took place.
26. At this stage this Court proposes to look to the reported decision of
Vidya Devi(supra) and the relevant portion of the said reported decision
is reproduced hereunder in verbatim:-
“12.11. We are surprised by the plea taken by the State before the
High Court, that since it has been in continuous possession of the
land for over 42 years, it would tantamount to “adverse” possession.
The State being a welfare State, cannot be permitted to take the plea
of adverse possession, which allows a trespasser i.e. a person guilty
of a tort, or even a crime, to gain legal title over such property for over
12 years. The State cannot be permitted to perfect its title over the
land by invoking the doctrine of adverse possession to grab the
property of its own citizens, as has been done in the present case.”
27. As rightly held by the Hon’ble Apex Court that the respondent nos.
1 to 5 as well as respondent nos. 6 to 11 being the State and its
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functionaries within the meaning of Article 12 of the Constitution cannot
deprive its citizens from their right to property as enshrined in Article 300
A of the Constitution of India. This Court has every reason to believe that
in plot no.82 the South Eastern Railway Authority is in possession of 0.19
acre of land for which neither any acquisition proceeding was initiated nor
any compensation has been disbursed. Similarly in respect of RS plot
no.13 the writ petitioners are deprived from their lawful possession of the
said authorities without initiating any land acquisition proceeding.
28. This Court thus finds sufficient merit in the instant writ petition.
29. The writ petition is thus allowed in part.
30. Accordingly the Land Acquisition Collector, District Pashcim
Mednipur is hereby directed to initiate acquisition proceeding under
chapter IV of the said Act of 2013 to assess the amount of compensation
including the solatium and interest accrued thereon payable to the writ
petitioners and/or any other interested persons in the light of the
observation made hereinabove.
31. On such assessment the respondent nos. 2 to 5 being the
functionaries of the South Eastern Railway Authority and being the
requiring body are directed to disburse the compensation, solatuim and
interest accrued thereon to the writ petitioners and/or any other
interested persons entitled to the same.
32. The Land Acquisition Collector, District Paschim Mednipur is
hereby directed to complete the entire process as indicated in paragraph
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no. 30 within a period of 4 months from the date of communication of this
order.
33. South Eastern Railway Authority and its functionaries being
respondent nos. 2 to 5 are directed to disburse the compensation,
solatium and the accrued interest thereon within 2 months thereafter.
34. Learned advocate for the respondent nos. 1 to 5 is hereby requested
to communicate the server copy of this order to the South Eastern
Railway Authority forthwith. Learned advocate for the respondent nos. 6
to 11 is also requested to communicate the server copy of this order to the
Land Acquisition Collector, Paschim Mednipur.
35. South Eastern Railway Authority and its functionaries and the
Land Acquisition Collector, District Pashcim Mednipur are directed to act
on the server copy of this order.
36. Department is also directed to forward the copies of this judgment
to the respondent no.2 and the Land Acquisition Collector, District
Paschim Mednipur forthwith.
37. With the aforesaid observation the instant writ petition is disposed
of. CAN 4 of 2024 is also disposed of.
38. Urgent Photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)
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