Sri Byomkesh Das vs State Of West Bengal & Ors.

Protik Prakash Banerjee, J.

This is a writ petition under Article 226 of the Constitution of India. The writ petitioner claims to be aggrieved by the actions of the respondent no. 1 State of West Bengal, in first requisitioning and then acquiring his property as described in paragraph 2 of the writ petition without paying him any compensation whatsoever.

The case made out in the writ petition, though in very vile English, is that the writ petitioner is the owner of 0.17 decimals of homestead land and 0.11 decimals of ‘doba’ (pond) in Dag No.1531/1402 and 1559/1442 pertaining to Khatian No.59 now Khatian No97, L.R. No.929 in Mouza Muriganga, J.L. No.7. The name of his predecessor-in-interest was mutated in the record of rights as appears from Annexure “P1” to the writ petition. The writ petitioner claims that these lands are the only lands he has, and for construction of a “bandh” due to the natural calamity being the cyclone “Aila” which hit these shores a few years back the said lands were first requisitioned and then acquisitioned and he was deprived of the possession and use of the said lands without the State paying him a single rupee in compensation.

In support of his case, the writ petitioner has relied upon a notice at page 23A of the writ petition which is dated February 9, 2011 — this is a special notice in terms of Sections 9(3) and 9(4) of Act 1 of 1894; a notice at page 23 of the writ petition which purports to be in terms of Section 12(2) read with Section 31(1) of Act 1 of 1894, dated March 20, 2012 and a further notice dated September 16, 2014 which was issued by the respondent no. 7, the Additional Land Acquisition Officer. The second notice referred to above clearly mentions that the award was declared on

March 19, 2012. The writ petitioner admits at paragraph 6 that he received this notice. He says in paragraph 6 of the writ petition that he is aggrieved with the fact that the compensation proposed to be paid to him was a paltry amount compared to the market value of the land, and considering that lands adjacent to the doba and constructed rooms were also expropriated. However, admittedly, he did not apply for reference challenging the award or the amount of the compensation within the statutory period of limitation for doing so, even from the date of his receipt of the notice dated March 20,

2012.

The records relied upon by the writ petitioner themselves show that this is not a case of requisition under Act II of 1948 but a case of acquisition under Act 1 of 1894 being LA Case No. 4/26 of 20-10-2011, where the award was declared on March 19, 2012 and attempt was made to make payment of the awarded amount on March 20, 2012. Therefore, the question raised by the writ petitioner, that he was deprived of the use of his land by requisition without payment of any compensation does not arise.

So far as the question of non-payment of acquisition compensation and its inadequacy as canvassed by the writ petitioner, I find that Section 18 of Act 1 of 1894 is an effective statutory remedy which is appropriate for challenging the award when the acquisition is itself not under challenge.

However, admittedly the writ petitioner did not challenge the said award by seeking a reference thereunder, within the statutory period of limitation.

Rather, from March 19, 2012 when the award was passed, assuming he was unrepresented, till the date of institution of the writ petition, about five years, there was no reference. He had even in such a case, at best six months’ time from the date of the award to apply to the Collector for reference. He did not do so. I would have thought, that the law was well settled, that where a person having a statutory remedy which is subject to a statutory period of limitation, allows the limitation to expire, and there is no power to condone the delay inherent in the statutory forum, the right to such remedy would stand extinguished. There would be no legally enforceable right after the expiry of the period of limitation aforesaid. Therefore, the said person would have no right to the issuance of a writ of or in the nature of Mandamus for that cause of action, or even recovery of any amount on count of the awarded compensation, because he had no legally enforceable right subsisting at that time.

I would have held so, if the facts of the present case did not show that the respondent no. 7, an instrumentality of the respondent no. 1 in the matter of acquisition of land, had not himself shown that the acquisition was not complete. This he did as late as on September 16, 2014 by issuing the notice as in Annexure “P3”, whereby he informed all and sundry that he would be holding hearings for acquiring the lands in Muriganga Mouza within the jurisdiction of the Sagor Police Station according to the schedule mentioned in the said notice and all concerned land-owners and persons were being requested to be present with their relevant documents. It is the case of the writ petitioner that though he was present with all his documents, he was still not paid a single farthing on account of compensation for acquisition of the land, or the trees or constructed rooms or statutory interest. Since the writ petitioner thus frames his case and creates his cause of action, I had no alternative but to seek an explanation from the concerned officer with the records on February 6, 2018. A status report was filed on the next date with an explanation that the original incumbent in the post of the respondent no. 7 had retired and there was a new officer who was not responsible for the extraordinary consideration shown to the petitioner. The status report contained a very damaging admission. I therefore directed that the officer concerned would put the statements made in the un-affirmed status report on oath by affirming an affidavit.

Such an affidavit was affirmed by Sri Tapan Kumar Mallik the present respondent no. 7, on April 6, 2018. In such affidavit also, the same damaging admission has been made though affirmed as “true to my knowledge which are derived from original records”. I do not know what sort of an affirmation this is, since the records pertain to a period prior to Mr. Mallik assuming office, and if it is true to his knowledge, then he could not have known anything of his own knowledge in respect of the period before he assumed office. It has already been recorded in my order dated February 6, 2018, that the present incumbent assumed office after September 16, 2014. Therefore, I have a choice of blaming either the Learned Advocate who drafted the affidavit or the intelligence and sense of consistency of the officer who affirmed it.

For the sake of completeness, the admission in question is extracted herein below: -

“2d. We are liable to pay compensation of acquired land. It may be mentioned that the subject land was acquired for construction of river embankment in AILA affected/devastated area to save agricultural lands in Sundarban area. Obvious, there is urgency to have the land for the said purpose of embankment. Therefore, as per Act I of 1894 it is out obligation to clear the compensation for acquired land and then take up the work of construction by R.B.. Hence for the purpose of making payment we got the cheque ready and noticed the awardee to accept payment.”

In the said affidavit, it was also mentioned at paragraph 2b that Cheque No.070075 dated January 30, 2012 of Rs.47,828/- for plot No.1422 was issued in favour of the writ petitioner, whereas at paragraph 2c it was stated that since this amount was undisbursed a fresh cheque No.091567 dated February 5, 2015 was issued. This too was not disbursed. At paragraph 2c the said officer has also affirmed there was another award in favour of the writ petitioner but this was a “not verified award”, for Plot No.1402 but for the sum of Rs.1,07,609.83/- and hence no cheque was prepared in the name of the writ petitioner.

At paragraph 2f of the said affidavit, however, the said officer appears to have appreciated that the Collector has no scope to enhance the award as prayed for by the writ petitioner, but he has proposed a novel scheme for the purpose. He has asserted as being both true to his knowledge as also derived from the original records and documents, that the writ petitioner has the liberty to file a petition under Section 18 of Act 1 of 1894 “before the appropriate court for enhancement of award compensation”. (emphasis supplied).

I am quite at a loss whether to congratulate the present respondent no. 7 Mr. Tapan Kumar Mallik for his imagination at having created a new statutory provision by which a petition can be made directly to the “court” within the meaning of Act 1 of 1894, by a person who is aggrieved by the amount of compensation, instead of applying to the Collector concerned, or to marvel at the competence and knowledge of those officers of the respondent no. 1 who are entrusted with the work of carrying out the acquisition on behalf of the respondent no. 1, without even knowing what the statute which governed the proceedings required. However, the competence of such officer, or the lack of it, is something which will come back to haunt the respondent no. 1 every time a litigation ensues, and therefore, does not concern me particularly.

I can, however, conclude that it is an admitted position that the State of West Bengal has accepted that it was seeking to deprive a person of his shelter and property, without following procedure established by law and/or due process, though the right to shelter is guaranteed under Part III of the Constitution of India inter alia under Articles 21 and 19(1)(e) thereof and though the right to property in a truncated form is guaranteed under Article 300A of the Constitution of India. This the respondents are not entitled to do, and once the respondents admit that they were chasing the writ petitioner with the cheque for the verified award in respect of Plot No.1422 (paragraph 2b of the affidavit of Sri Tapan Kumar Mallik) they cannot be allowed to deprive him of it. Accordingly the respondents and each of them, particularly the respondent no. 1 served through the Secretary or the

Principal Secretary of the Land and Land Reforms Department shall cause to be prepared a fresh cheque for the sum of Rs.47,828/- in the name of the writ petitioner in respect of the verified award relating to plot No.1422 as stated in paragraph 2b of the said affidavit of Sri Tapan Kumar Mallik.

This shall be made over to the writ petitioner as expeditiously as possible, but no later than one month from the date of communication of the order.

The respondent authorities particularly the respondent no. 2 shall make all endeavour to verify the award in respect of Plot No.1402 referred to in paragraph 2c of the affidavit and shall complete the exercise of verification within 2 months from the date of communication of this order and shall furthermore cause a cheque for the amount of Rs.1,07,609.83 to be prepared and handed over to the writ petitioner within a period of one month from the completion of the process of verification as above. All the times fixed are peremptory.

The writ petition is thus disposed of in terms of the above directions. There shall be no order as to costs.