Shri Susanta Nayak vs The State of West Bengal and Others

Jayanta Kumar Biswas, J.—The Petitioner in this Article 226 petition dated May 20, 2009 is seeking a mandamus commanding the Respondents to make and declare the award in L.A. Case No. 31 of 1959-60 and pay him compensation.

It is not disputed that proceedings for acquisition of the land particulars whereof have been given in the petition were initiated under provisions of the West Bengal Land Development and Planning Act, 1948. The state has filed two affidavits - one dated August 10, 2009 and the other dated February 3, 2010. With the first affidavit it has filed a copy of the certificate of possession of the land dated October 22, 1963.

It was recorded in the certificate that on October 22, 1963 possession of 5.39 acres of land situated in village Birbhanpur in the district Burdwan, acquired under declaration No. 17670L. Dev. dated September 7, 1959 published in the Calcutta Gazette on September 17, 1959, was made over to the parties on whose behalf it had been acquired. It was further recorded that the land was acquired for settlement of displaced persons.

Over the course of hearing, Mr. Banerjee, counsel for the state, has produced a copy of the declaration. It was made under s.6 of the West Bengal Land Development and Planning Act, 1948; and the plot with respect to which the Petitioner has brought this petition and which was mentioned in the certificate of possession dated October 22, 1963, was included in it. Hence there can be no doubt that the land in question was acquired under provisions of the West Bengal Land Development and Planning Act, 1948.

The state has not disputed the correctness of the Petitioner''s case that no award was made and declared and no compensation was paid for the acquisition of the land. In view of the provisions of s.8 of the West Bengal Land Development and Planning Act,1948 the land vested absolutely in the government free from all encumbrances once possession thereof was taken; and hence the empowered official incurred an obligation to determine the amount of compensation to be awarded for the acquisition of the land. According to the provisions of s.8 compensation was to be determined following the provisions of the Land Acquisition Act, 1894.

It is really unbelievable that after exercising statutory powers for ensuring the vesting of the land in the state government, and handing over possession thereof to the requiring body on October 22, 1963, the officials concerned, never carrying to discharge the remaining statutory duty to determine the amount of compensation, make award and pay compensation, could shelve the pending acquisition case in perpetuity. The only persons who have not suffered for the indolence and indifference of the officials are the officials themselves whose ilk has as it were institutionalized indolence and indifference in public service. One remarkable fallout of this mindset is that this Court has been bursting with Article 226 petitions alleging just inaction.

In ordinary course a person approaching the high court under Article 226 with such a stale claim as the one in this petition is to be told that it is too late for him to approach the writ court. It is a mystery that the affected party also chose to remain silent for around half a century. But this is a classic example of a belated case entertained by the high court under Article 226 revealing an unbelievable story. I only wonder what would have been the extent of injustice done to the person or persons entitled to compensation, had this Court refused to entertain this petition on the ground of delay alone. In view of the claim that no award was made the petition was admitted; and then it has been no easy task for this Court to unearth the actual position; and this is evident from the fact that the court had to direct the state to file two affidavits, - an unusual procedure.

It is to be noted that in view of the vesting of the land in terms of provisions of s.8 of the West Bengal Land Development and Planning Act, 1948 the provisions of Section 11A of the Land Acquisition Act, 1894, stipulating a period for making and declaring award and stating the consequences of a failure to do so, will not apply to the L.A. Case in question. Here the proceedings initiated for the acquisition of the land could not lapse, as the state government could not withdraw from the acquisition of the land that has already vested in it. After the vesting of the land only the compensation was to be determined, award was to be made and compensation was to be paid according to the award. It will not be inappropriate to say that perhaps the Respondents took advantage of this legal position.

For these reasons, I dispose of the petition ordering as follows. Within two months from the date of communication of this order the Collector, Burdwan shall determine the amount of compensation payable for the acquisition of the land, make and declare the award, and pay compensation according to the award. The Secretary, Refugee Relief & Rehabilitation Department, Government of West Bengal is directed to make funds available for payment of compensation. No costs. Certified xerox according to law.