Gopal Jhunjhunwala & Ors. vs State of West Bengal & Ors.

Indubitably the land of the petitioner measuring more or less 0.365 acres in Mouza â€" Salimpur, has been used and utilized by the Kolkata

Metropolitan Development Authority (KMDA) for construction of Prince Anwar Shah Road Connector way back in the year 1980. The petitioner

was deprived of the use and enjoyment of the said property since such time without having been served with any notice of requisition under Act II of

1948. Neither the KMDA as requisitioning body ever approached the State for acquisition until the year 2006 but continued to occupy and utilized

such plot of land for such purposes. On the other hand the State appears to have been passed the responsibility from one shoulder to another and

lastly took a technical plea that unless the proposal is routed through proper channel, the request from the requisitioning body cannot be acceded to.

The aforesaid stand appears to have been taken on October 25, 2011 whereby and whereunder the Chief Executive Officer of the KMDA was

informed that they are required to re-submit the proposal as per guidelines mentioned in GO No.1702/LA dated June 6, 2006 along with a copy of

Cabinet Note and a copy of approval of the Cabinet.

The fact remains that no proceeding was ever initiated either for requisitioning the property or for acquisition, yet the petitioner has lost his possession

and enjoyment of the property. Article 300A of the Constitution of India postulates that no individual can be deprived of his property saved by

authority of law. There is no hesitation in my mind that the State enjoys the power of emminent domain and can take the property of an individual

subject, however, that recourse is taken under the law. The State or its instrumentality cannot act at its whims and ignore the provisions of law

inviting destruction of rule of law, which is a paramount facet of good governance. Though the right to property has not been recognized as

fundamental right under Part-III of the Constitution yet it is a constitutional right and, therefore, the welfare State cannot act in such a manner which

offends and violates such constitutional right enshrined under the Constitution of India.

On the basis of an undisputed fact, there is no doubt in my mind that an individual has been deprived of this property without recourse to law and to

undone such unconstitutional act, the property is required to be reverted back to the owner. But this court cannot overlook the fact that such

property was required and utilized for larger public purposes and for construction of a connector facilitating the citizenry of the city to have smooth

and more convenient journey from different parts of the city.

This court finds that the possession of the land of the petitioner cannot be given to him as the situation which is prevalent at present, renders it

irreversible. Since the KMDA as requisitioning body have been informed to make a fresh proposal, this court permits the KMDA to make a fresh

proposal within four weeks from date strictly in terms of the extant Rules/Guidelines or Act applicable in this regard.

The State is directed to take recourse for acquisition of the property as per the extant guidelines and it goes without saying that the entire exercise

shall be completed within eight weeks from the date of the receipt of the fresh proposal from the KMDA.

Though this court finds that this direction has been passed to mitigate the situation and to secure the ends of justice yet this court cannot brush aside

that the petitioner has been deprived of his property without the payment of a single farthing.

The Land Acquisition Collector, South 24Parganas is directed to determine the rent compensation from the date of the possession till the date of an

acquisition of right, title and interest by the State and shall pay the same to the petitioner along with an interest of 6% per annum. The said Land

Acquisition Collector shall complete the entire exercise within eight weeks from the date of communication of this order.

With this observation, the writ-petition is disposed of. No order as to costs.

The personal appearance of the Additional District Magistrate, South 24-Parganas, who is present in court today in compliance with the order dated

June 28, 2018, is dispensed with.

Urgent Photostat Certified copy of this order, be given to the parties, if applied for, on priority basis.