At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE ASIM KUMAR MONDAL
For the Petitioners: Deba Prasad Mukherjee, Debjit Mukherjee, Bhagbat Chaudhuri, Advocates. For the Respondents: Biswajit Dey, Advocate.
Asim Kumar Mondal, J.
This is an application under Article 226 of the Constitution of India filed by the petitioners praying for issuance of a writ in the nature of mandamus commanding the respondent No.2 regional officers (Civil) Ministry of Road Transport High ways (M.O.R.T.H), M.S.O. Buildings, and respondent Numbers 3 and 4 project director, A.H.A.I., P.I.U, Kolkata, Chief engineer (N.H.), P.W. (roads), directorate, Government works’ Department having is officer at writers’ Building, Kolkata, to release 4.55 acres of lands out of C.S. plot No.1446 of Mouza Bally District Howrah, to release 4.55 acres of lands out of C.S. plot No.1446 of Mouza Bally, District Howrah to the petitioners and to pay rent in respect of the said lands from 22.06.1961 till the date of restore back possession.
The case of the petitioners is that sometimes in the month of July, 2002 the Additional District Magistrate accompanied by police force and the persons from the fisheries Department. Apartment the plot 1446 and 1448 and dismantle a portion of the caretakers room forcibly situated in the aforesaid plots. Against the said legal action the petitioners’ predecessors in interest move a written application before this Court being WP No.11010 (W) of 2002. In the said writ petition affidavits were affirmed by the petitioners and respondents including Block land and land Reforms officer, Bally Jogacha Gram Panchayet. T
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e writ petitioner was directed to retain 7.55 acres of land out of plot No.1446 by the Revenue Officer of the office of the Block Land and Land Reforms Officer sometimes in the year 1989. Thereafter in connection with the proceedings, petitioners’ portion of plot No.1446 were demarcated. The block land and land reforms officer knowing fully well that the said plots have been acquired sometimes in the year 1961 have made an affidavit stating that 7 acres 55 decimels of lands do belongs to the petitioners and the rest 4 acres 55 decimels they have taken possession.One Sadhan Kumar Saha, Block Land and Land Reforms Officer, Jogacha, Gram Panchayet on 6.4.2004 filed an affidavit to the effect that the land in questions have been acquired in the year 1961 in connection with the construction of High Way vide L.A. case No.1 of 61-62 as per notification No.19328- L.A.(P.W.) dated 13.12.1960 published as page 153 No.1 of the Calcutta Gazette dated 12.1.61 and the possession of entire 12.10 acres land of plot No.1446 was taken on 22.6.61 and the applicant Subrata Sankar Bhaduri received compensation in respect of 7.55 acres of land out of 12.10 acres amounting to Rs.2 lakhs 6 thousands 2,06,405.73 paisa from the L.A. Department.It is the further case of the petitioners that on 22.6.2001 R.S. plot No.1446 measuring an area of 12 acres 10 decimels were own and possessed by the predecessors-in-interest of the present petitioner and on the basis of the aforesaid land acquisition proceeding the interest of the present petitioner have been acquired and possession have been taken from them. It is the further case of the petitioners that the predecessors-ininterest of the present petitioners were given compensation of 7.55 acres of land and in respect of 4.55 acres of land no compensation was given to the petitioners, of which the respondents have taken possession on 22.6.1961. The petitioners are entitled to get interest and rent from the date of taking possession till the date of passing of the award. No award has been passed in favour of the petitioners till date. The predecessor in interest of the petitioners was not aware of the payment of compensation as the same was received by the Ld. Advocate on behalf of the official liquidator. The petitioners for the first time came to know about such purported acquisition from the affidavit affirmed on 6.4.04 by the Block Land and Land Reforms Officer, Bally Jogacha Gram Panchayet. The present petitioners are entitled to get compensation in respect of 4.55 acres of land which the respondents acquired so far back in the year 1961.The petitioners approached the collector of Howrah in respect of the compensation for the part of such acquisition of lands to petitioners. Therefore, there is no occasion for any demand of justice from the respondents.Being aggrieved by and dissatisfied with the purported acquisition of 12 acres 10 decimals of lands out of plot No.1446 of mouza Bally, the petitioners has moved the present application under article 226 of the Constitution of India on the following grounds.That the respondent numbers 2 and 4 have failed to appreciate that in terms of acquisition proceeding No 1 of 1961 for 12 acres 10 decimals of land, award has been passed and compensation have been paid in respect of 7.55 acres of land and in respect of balance portion of the land neither any compensation have been paid to the petitioners nor their predecessors in interest. Further that in respect of 4.55 acres of land out of plot No.1446 of mouza Bally, neither any award has been passed in favour of Late Subrata Sankar Bhaduri or the present petitioners, nor any compensation was paid and as such it shall be deemed that the properties remain unutilized.Mr. Debjit Mukherjee appearing on behalf of the petitioners submits that Subrata Sankar bhaduri was the admitted owner of the property. He was allowed to retain the said property including 4.55 acres of land under R.S. plot no.1446 of Mouza Bally. It is also admitted fact that neither any award was made nor compensation was paid by the collector for the said 4.55 acres of land before the acquisition has lapsed. The National High way authority of India neither acquired nor required the same. They never taken possession of the land. The writ petitioners are the heirs and legal representative of Subrata Sankar Bhaduri. They are entitled to retain 4.55 acres of land of plot No.1446 of Mouza Bally as a Rayet. So, the direction may be given to correct the records of rights in favour of the present petitioners. The land measuring about 12.10 acres of plot No.1446 of mouza bally were acquired in connection with L.A. case No.1 of 1960-61.The declaration was published on 23rd December, 1960. These are all on records. At the relevant point of time the said land including other properties were under the hand of receiver appointed by the Hon’ble Court in connection with a mortgage suit bearing title suit No.1585 of 1958. Admittedly, an award was made in favour of the receiver in respect of 7.55 acres of land and the compensation was paid to the receiver in the year 1970 but neither any award nor any compensation was paid in respect of the balance area of land. In 1979 mortgage was redeemed and the receiver was discharged after disposed of the said suit. Mr. Debjit Mukherjee draws my attention as to the annexure P-1 of the writ petition. The said annexure is an affidavit in opposition of the further additional supplementary affidavit of the petitioners by respondent No.7 i.e. Block Land and Land Reforms Officer, Bally, Jogacha. It is further submitted that one Sadhan Kumar Saha affirmed the said affidavit one 6th April, 2004 in connection with a writ petition no.11010 (W) of 2002 in between Subrata Sankar Bhaduri and another Vs. State of West Bengal. In the said writ petition the respondent No.7 admitted that R.S. plot No.1446 of Mouza Bally was fully acquired into a L.A. case No.1 of 1961 as per notification No.19328 L.A. (P.W.) dated 12.12.1960 published on 12.1.1961 and possession of the entire 12.10 acres land of the said plot was taken on 22.6.1961. It is also admitted fact as it appears in the said affidavit that compensation in respect of 7.55 acres of land out of 12.10 acres were paid. The balance area measuring about 4.55 acres of the said plot declared vested as per B/R case numbers 25-26 and 28 of 1970. As such, no compensation was paid for that 4.55 acres of land. Mr. Mukherjee draws my attention as to the notification published in the official gazette, Memo No.372 L.A. (G) of the office of the collector Howrah and the copies of the letters addressed to the Sub-Divisional Land and Land Reforms Officer, Howrah Sadar by the predecessors in interest of the present petitioner Subrata Sankar Bhaduri which are annexed with the said affidavit of respondent No.7, in support of his argument that entire plot No.1446 measuring about 12.10 acres of land where acquired and out of which compensation of 7.55 acres of land have been paid.It is submitted by Mr. Mukherjee that since after the date of notification no award has been published for the remaining land measuring about 4.55 acres. He prays for passing necessary order directing respondent numbers 2, 3 and 4 to release the remaining unused land measuring 4.55 acres of plot No.1446 of mouza Bally for which no award has been published and no compensation has been paid.Mr. Biswajit Dey appearing on behalf of the State submits that, in fact, he has nothing to say as regards the admitted fact and position of the acquisition of plot No.1446 of mouza Bally. The property has been vested to the State long ago in the year 1960-64 free from all encumbrance under acquisition proceeding and compensation money in respect of 7.55 acres of land out of 12.10 has been received by the predecessors in interest of the writ petitioners and the rest of the land in question was also under the B.R. case since latter. So the question of compensation for the rest land in question does not arise at all. It is further submitted that though the State Govt’s policy is that if the property in question is unused after the scheme or project is over, in the first opportunity, offer should be given to the erstwhile owner of the land for returning back the property. Sri Dey relied upon the provisions of Section 11 A of the Land Acquisition Act, 1894.The provision under Section 11 A runs as follows- “The collector shall make an award under section 11 A within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the lands shall lapse”Provided that in a case where the said declaration has been published before the commencement of the land acquisition (amendment) Act, 1984, the awards shall be made within a period of two years from such commencements.To consider the fact that whether the award was made within the period of limitation prescribed in Section 11 A of the Act, the date of signing the award is to be taken into account. So when the award was signed within the period prescribed by the Section, award is valid. In the instant case, admittedly, possession of the entire 12.10 acres of land of plot No.1446 was taken on 22nd June, 1961. The declaration on such acquisition was published on 23rd December, 1960 vide L.A. Case No.1 of 1961 as per notification No.19328 L.A. (P.W.) dated 13th December, 1960 and published on 12th January, 1961. No award has been signed by the collector till date since after the acquisition of land for the entire area measuring about 12.10 acres. Admitted fact that award was signed by the collector only for an area of land measuring about 7.55 acres. The compensation also paid to the predecessor in interest of the present petitioners. There is no evidence or documents filed on behalf of the respondents to show that any award has been published till today since after the acquisition in the year 1961. There is nothing on record that the remaining acquired land measuring about 4.55 acres of plot No.1446 was either retain or utilised by the National High way Authority of India. They never took possession of the said land. No document is available on record to show the land in question was acquired by invoking the provision under section 17 of the Act and the possession has been taken and the land has already been vested with the Government.The limitation period of two years under Section 11 A of the Act for making award is mandatory. A bear reading of Section 11A indicates and emphasizes that the limitation within which the award should be made has been statutorily determined, namely, the collector shall make an award within a period of two years from the date of publication of the declaration. It is therefore a mandatory duty cast on the land acquisition collector to make the award strictly in accordance with the limitation period under Section 11A. If no award is made within the period, the entire proceedings for the acquisition on the land shall lapse. In fact, in the instant case, admitted position i.e. land in question was acquired by notification and possession was taken for a project of National High Way Authority. In the said project 7.55 acres land have been utilised for which compensation has been paid to the official liquidator appointed in a mortgage suit on behalf of the predecessor in interest of the present petitioners. There is nothing to observe that any award was made within the specified period under section 11A of the Act measuring about 4.55 acres of land and that the same has been utilised. The respondent state has taken a plea that the remaining land measuring about 4.55 acres has been vested in a big rayet case. The proceeding under land reforms Act for vesting of a land of any big rayet is a complete separate proceeding than that of acquisition of land under the land acquisition Act 1894. The land which has already been acquired under the land acquisition Act, 1894, that cannot be vested under a proceeding of land reforms act simultaneously.In view of the facts and circumstances of the present applications and on proper consideration of the documents available on record that the writ petitioners are entitled to get back the unutilised land measuring about 4.55 acres of lands comprising plot no 1446 of mouza Bally J.L. no.14 police station Bally under the provisions of Section 11A of land acquisition Act 1894.Thus the present writ application is disposed of with the following directions to a Respondent No.7 Land Acquisition Collector, Howrah, having its office of Howrah Collectorate, P.O. & P.S. Howrah to release 4.55 acres of land out of C.S. Plot No.1446 of Mouza Bally District Howrah forthwith in favour of the petitioners, the Authority concern is also directed to take steps for necessary correction in the Record of Rights of the lands in question.
"2014 (1) CalHN 533"