The State of West Bengal vs Ganesh Samanta

Re: CAN 5 of 014 (Sec. 5)

Though there was enormous delay in filing this appeal by the State-respondents but we condone the delay in filing this appeal as we, after hearing the Learned Advocates of the parties, find that an arguable case has been made out by the appellants in this appeal. Accordingly, delay in filing the appeal is condoned.

The application for condonation of delay thus, stands allowed.

Let the appeal now be registered.

Re: MAT 1969 of 2013

Let us now consider the merit of the instant appeal in the facts of the instant case.

This appeal is directed against the judgment and/or order passed by the Learned Single Judge of this Court on 21st September, 2010 in W.P. No. 11988 (W) of 2010. By the said order, the Learned Single Judge of this Hon''ble Court held that the acquisition proceeding which was initiated with the issuance of the notification under Section 4(1a) Act II of 1948 lapsed due to non-fulfillment of the condition contained in Section 7A of the said Act.

The Learned Single Judge thus, held that since the Act II of 1948 lapsed with effect from 31st March, 1997 and there being no subsisting notice under Section 4 of 1948 Act, the Land Acquisition Collector will now have to issue notice under Section 9(3A) of the Land Acquisition Act and complete the acquisition proceedings expeditiously as per the provisions of the said Act. Taking note of the fact that the possession of the land was taken in 1980 and there is no scope for restoration of such possession to the petitioner as the same has already been utilized, the Learned Single Judge passed an order directing the concerned authority to complete the acquisition proceedings positively within six months from the date of the order by declaring the award at the current market value, with a rider that the writ petitioner may also claim compensation for having been deprived of possession, use and occupation of and income from the land in question from 1980 till date of issuance of notice under Section 9(3A).

The legality and/or propriety of the said order is under challenge in this mandamus appeal at the instance of the State-respondents.

Mr. Sengupta, Learned Advocate appearing for the appellants tried to impress upon us that the proceeding for acquisition of the land as provided under Act II of 1948 is pari materia with the provisions contained under Section 17 of the Land Acquisition Act dealing with the State Government''s special powers on acquisition of land in case of urgency. To substantiate such contention, he placed before us the provisions contained in Section 11, Section 16 and Section 17 of the Land Acquisition Act and the provisions contained in Section 4, Section 5, Section 6, Section 7, Section 7A & Section 8 of the West Bengal Land (Requisition and Acquisition) Act, 1948.

He further contended that once title of the landowner vests with the State Government by virtue of the notice under Section 4(1a) of the Act II of 1948, such title of the State Government in the land so acquired, cannot be divested merely because of non-publication of award and/or non-payment of compensation within the period prescribed under Section 7A of the said Act.

He further contends that since Act II of 1948 became inoperative with effect from 1st April, 1997, compensation can neither be assessed nor award, can now be published under the provisions of Act II of 1948. According to him such incomplete acquisition proceeding can now be completed by invoking the provisions contained in Section 9(3B) of the Land Acquisition Act.

He has also relied upon a decision of the Hon''ble Supreme Court in the case of Satendra Prasad Jain and Others Vs. State of U.P. and Others, to substantiate his contention that once the title of the landowner vests with the State by operation of law, under Section 17 of the Land Acquisition Act such vested right of the State Government cannot be divested due to non-payment of the awarded compensation within the prescribed time limit. Relying upon the said decision, he submits that since the scheme of acquisition of the land under Section 17 of the land Acquisition Act is identical with the scheme framed under Section 4(1a) of the Act II of 1948, the principles laid down in the said decision of the Hon''ble Supreme Court, will also apply in the present case. Thus, he concluded by submitting that notwithstanding non-fulfillment of the condition laid down in Section 7A of Act II of 1948, the title which vested with the State with the issuance of notice under Section 4(1a) of the said Act, will remain unaffected. He thus, prays for setting aside of the judgment and/or order which is impugned in this appeal.

Mr. Dutta, Learned Advocate appearing for the writ petitioners/respondents refuted such submission of Mr. Sengupta by submitting that the provisions contained in Section 17 of the Land Acquisition Act are not similar to that of the provisions contained in Section 4(1a) of Act II of 1948.

He contends that though under the Land Acquisition Act when the possession of the land is taken by the State Government by invoking its power under Section 17 of the said Act, the title of the land owner vests with the State free from all encumbrances and such vested right cannot be divested under any circumstance but under the Act II of 1948 vesting of title of the land owner with the State by operation of law, as contemplated under Section 4(1a) of the said Act, is subject to the condition as mentioned in Section 7A of the said Act.

He has drawn our attention to the relevant provisions contained in the Land Acquisition Act as well as the relevant provisions of Act II 1948 to show the difference in the scheme framed in both the aforesaid Acts for acquiring the interest of the landowner for public purpose and ultimately concluded by submitting that the Scheme of acquisition under the Land Acquisition Act under Section 17 of the Land Acquisition Act and vesting of title with the State as a consequence of such acquisition, is not identical with the scheme for acquisition of the land of the landowner contained in Section 4(1a) of Act II of 1948.

He thus, supported the impugned order by drawing our attention to the Special Bench judgment in the case of State of West Bengal Vs. Sabita Mondal, wherein it was held that by the amendment Act of 1997 of the Land Acquisition Act, only those notices under Sub-Section 1(a) of Section 4 of Act II of 1948 which would have lapsed on the mid-night of 31st March, 1997 or on subsequent dates, have been saved and such incomplete acquisition proceeding can be completed by following Section 9(3B) of the amendment Act of 1997.

Since the notice under Section 4(1a) of Act II of 1948 which was issued in the present case on 14th April, 1986 lapsed before the cut-off date i.e. 31st March. 1997, the proceeding for acquisition of the said land even cannot be completed by following the Section 9(3B) of the said Act.

He, thus, contended that in such circumstances Section 9(3A) of the Land Acquisition Act is the only provision by which acquisition of the land of the petitioners can be completed. Thus, he supported the judgment which is impugned in this appeal. It is brought to our notice by Mr. Dutta, Learned Advocate that presently the acquisition cannot be completed even by following the provisions contained in Section 9(3A) of the Land Acquisition Act, in view of the provisions contained in Section 24(1a) of the Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which came into effect on 1st January, 2014 with the publication of requisite notification.

After hearing the learned Advocates of the respective parties and after considering the materials on record, we find much substance in the contention raised by Mr. Dutta for the following reasons.

We have made comparative study of the relevant provisions of the Land Acquisition Act and the Act II of 1948 relating to acquisition of land for public purpose. When land is acquired in normal circumstance under the land Acquisition Act, title of the land owner vests with the State under Section 16 of the land Acquisition Act. Exception is provided under Section 17 of the said Act. Under Section 17 of the said Act when in case of urgency, possession of any land is taken for the need of any public purpose the title of the landowner vests in the Government free from all encumbrances simultaneously with taking over possession of such land notwithstanding the award is published subsequently. In such circumstances, the provision for payment of compensation to the landowner is required to be made by following the provision of Section 17(3A) and Section 17(3B) of the said Act, which are set out hereunder:-

"(3A) Before taking possession of any land under sub-Section (1) or Sub-Section (2), the Collector shall, without prejudice to the provisions of sub-Section (3),-

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-Section (2),

and where the Collector is so prevented, the provisions of Section 31, sub-Section (2) (except the second proviso thereto), shall apply as they apply to the payment of compensation under that Section.

(3B) The amount paid or deposited under sub-Section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the collector under Section 11, the excess may, unless refunded within three months from the date of the Collector''s award, be recovered as an arrear of land revenue.)"

Thus, we find that in case of acquisition of any land in urgency under Section 17 of the said Act, provision for payment of eighty percent of compensation to the landowner before taking over possession of such land, is made therein, subject to adjustment of the same against the ultimate amount to be awarded under Section 17(3B) of the said Act.

However such provision is absent in Act II of 1948, in case of acquisition of any land under Section 4(1a) of the said Act.

That apart Land Acquisition Act does not contain any provision dealing with the consequence for non-publication of the award and/or non-payment of the compensation within any fixed period, in case any land is required under Section 17 of the said Act. But Section 7A of Act II of 1948 deals with the consequence of non-publication of the Award within three years from the date of publication of notice under Section 4(1a) of the said Act. Section 7A of the Act II of 1948 is set out here under:-

"The Collector shall make an award under sub-Section (2) of Section 7 within a period of three years from the date of publication of the notice in the Official Gazette under sub-Section (1a) of Section 4 (hereinafter referred to as to said notice) and if such award is not made within the period as aforesaid, the said notice shall lapse:

Provided that in a case where the said notice has been published more than two years before commencement of the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1994 (West Ben. Act XIV of 1994), the award shall be made Within a period of one year from the date of commencement of the Act.

Explanation-in computing the period of three years or one year, as the case may be, under this Section, the period during which any action or proceeding to be taken in pursuance of the said notice is stayed by an order of a Court having jurisdiction shall be excluded."

On perusal of the said provision, we have no hesitation to hold that the Collector had an obligation to make an award under Section 7A of Act II of 1948 within a period of three years from the date of publication of the notice in the Official Gazette under sub-Section 1(a) of Section 4 and if such award is not published within the prescribed period, the said notice shall lapse. In the present case, though notice under Section 4(1a) of Act of 1948 was issued on 14th April, 1986 but no award was admittedly published within three years from the date of issuance of such notification. As such the notice which was issued under Section 4(1a) of Act of 1948, stood lapsed with effect from 14th April, 1989. When the notice lapsed, we cannot hold that the title which was vested with the State by operation of law under Section 4(1a) of the said Act will continue to remain with the State even after the State respondent failed to publish the award under Section 7A of the aid Act, within the statutory period.

Since the provision for acquisition of the land under the Land Acquisition Act and the vesting of title with the State under the said Act are not identical with the provisions, contained in Act II of 1948; we hold that the decision of the Hon''ble Supreme Court which was cited by Mr. Sengupta in the case of Satendra Prasad Jain v. State of U.P. (supra) has no application in the facts of the instant case.

By relying upon the Special Bench decision of this Court in the case of State of West Bengal v. Sabita Mondal (supra) we thus hold that the State Government could have completed the acquisition proceeding by applying the provision contained in Section 9(3A) of the Land Acquisition Act, in pursuance of the notice which was issued by the State Government in compliance of the direction passed by the Learned Single Judge of this Court, but in view of the subsequent development in the Land Acquisition Laws with the enactment of the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 and particularly in view of Section 24(1)(a) of the said Act, the State respondent in our view cannot complete the acquisition proceeding by following Section 9(3A) of the Land Acquisition Act which has since been repeated. The Sate respondents, in our view is now required to complete the acquisition proceeding by following the relevant provision of the Right to Fair Compensation and Transparency in Land Acquisition. Rehabilitation and Resettlement Act of 2013.

Thus, we dispose of the instant appeal by modifying the impugned order only to this extent that the State respondent will complete the acquisition proceeding by applying the relevant provisions of the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013; positively within a period of six months from the date of communication of this order.

The appeal is thus, allowed with the above modification of the impugned order.

Let a photostat copy of the notice under Section 9(3A) of Act I of 1894 issued by the Collector, be kept with the record.

Be: CAN 17 of 2014 (Stay)

In view of the dismissal of the appeal itself, we do not find any necessity to pass any order on the stay application filed by the appellants. The application for stay is also disposed of.