State of West Bengal vs Central Calcutta Citizens Welfare Association

Arun Mishra, C.J.—The intra-Court appeal has been preferred by the State of West Bengal as against the legality of the order dated 6th September, 2013 passed by the Single Bench in W.P. 10270(W) of 2010 questioning the acquisition of land being made for the purpose of Metro Railways. Proceedings for acquisition of the land were initiated under Land Acquisition Act, 1894 (hereinafter referred to as Act) for the purpose of running Metro Railway from Salt Lake Sector-V to Howrah Station via Mahakaran under "East West Metro Corridor Project".

We confine the discussion into the declaration issued u/s 6 of the said Act. The only question on which acquisition has been challenged in the petition was that award was not passed within the period of two years from the date of publication of the declaration u/s 6.

In the Official Gazette, the declaration was admittedly published on 27th August, 2009 whereas publications in three newspapers were also made. It was the alternative case of the petitioner-Association that even if the last date of publication is taken in the locality, the declaration u/s 6 was published on locality on 13th November, 2009. The award was passed on 15th November, 2011, beyond the period of two years. Thus, the acquisition stands lapsed.

The Single Bench without giving any opportunity of filing any affidavit-in-opposition has quashed the acquisition on the ground that award was not passed within two years from the date of declaration u/s 6. The Gazette Notification was made on 27th August, 2009. The award was not passed within the period of two years. Thus, the land acquisition proceedings lapsed as the award was not passed within the period as prescribed in section 11A of the Land Acquisition Act. The fact is that possession had been taken on 24th January, 2012 is of no consequence and the State has been directed to restore the possession.

Aggrieved by the decision rendered by the Single Bench the intra-Court appeal has been preferred.

In the intra-Court appeal it is submitted that the acquisition proceedings did not lapse. Kolkata Metro Railway was not added as respondent, only General Manager was added as respondent.

Affidavit-in-opposition was not called for by the Single Bench. We have called for the affidavits from the parties.

The State of West Bengal has filed supplementary affidavit contending that acquisition was duly made and the declaration u/s 6 of the Act, was issued. Substance of declaration u/s 6 in form 5B was displayed at the conspicuous place in locality on 17.11.2009 and it was also served upon the interested person. Notices were served under sections 12(2) and 16 upon the, awardees as well as Transport Department and Kolkata Metro Railway Company Limited. Thus, it could not be said that the award was not passed within the period of two years as provided in section 11A of the Act. Form 5B and acknowledgement of service of notice u/s 6 have also been annexed. Notices were issued being Sl. No. 1631 to 1828. Thus, approximately 198 notices were issued. The acknowledgement bears the date on which copy of the notice was displayed at a conspicuous place in locality near the land proposed to be acquired. It also contains date of publication made by the local Government Office, Local Bodies and Panchayat Bodies and Land Acquisition authority by displaying the notice in the office Notice board. Respective dates of displaying Public Notice u/s 6 in the localities is 17.11.2009 and in the Local Government Office, Local Bodies and Panchayat Bodies in the locality is on 16.11.2009. These were the notices being Serial Nos. 1631 to 1632 whereas similar is the position of notice being Serial Nos. 1650 & 1651, Serial Nos. 1694 & 1695, Serial Nos. 1726 to 1727 meant for the aforesaid places. Similar is the date of the Public Notice in Form 5B of declaration u/s 6 at Serial Nos. 1766 to 1767. However, the notices bearing Serial Nos. 1776 to 1777, Serial Nos. 1791 & 1792, Serial Nos. 1801 & 1802 and Serial Nos. 1810 to 1811 and 1819 & 1820 were published on 16.11.2009.

It is submitted that notices were served in the locality as well as in the Government offices published on 16.11.2009 or 17.11.2009. Thus, the award passed on 15.11.2011 was within the period of two years. Acquisition did not lapse.

Similar is the stand of Calcutta Metro Railway. They have also relied upon the same documents.

Affidavit-in-reply has been filed by the respondent/petitioners in which it is contended that though it is stated that the notices in Form 5B of the declaration u/s 6 of the Land Acquisition Act were displayed at conspicuous place on November 17, 2009 and it was not disclosed who displayed the said notice at the spot on November 17, 2009. It has also been denied that any notice in Form 5B was displayed in the locality. However, it is admitted that Annexure P-1 only shows that copies of the notices were served upon some interested parties personally and there is no requirement of serving personal notices to the holders as mentioned in Annexure P-1. The notices do not conclusively prove that they were displayed in the locality on November 17, 2009 or November 16, 2009.

It was submitted by the Learned Counsel appearing on behalf of the State that the last date of public notice u/s 6 (as amended) is the last date of publication of declaration u/s 6 and within the period of two years award has to be passed. The award passed in this case within a period of two years from the date of making publication in the locality. Thus, the decision rendered by the Single Bench relying upon the date of Gazette Notification cannot be said to be in accordance with law. The notice in Form 5B bears the date 13.11.2009. As notices were large in numbers, obviously took some time to serve as well as to publish at the conspicuous places in the locality near the land proposed to be acquired and in the local Government office, local bodies and panchayat bodies as mentioned in Annexure P-1. It has been admitted that individual notices were served, thus other facts cannot be disbelieved. It cannot be doubted that declaration was published at the conspicuous place in the locality near the land proposed to be acquired and in the local Government office, local bodies and panchayat bodies. Thus, the decision of the Single Bench is not in terms of section 6 of the Land Acquisition Act, 1984 and is liable to be set aside.

The Learned Counsel appearing for the Metro Railway Corporation has also supported the submissions made by the Learned Counsel appearing on behalf of the appellant/State.

The learned Senior Counsel appearing on behalf of the respondent/petitioner contended that no case is made out so as to make out interference in the order passed by the Single Bench. The date of issuance of the notice in Form 5B is 13.11.2009 and award was passed on 15.11.2011. Thus, it was beyond the period of two years. Thus, acquisition had been lapsed and had rightly been quashed. It was also submitted that the endorsement of local publicity having been made on 16.11.2009 and 17.11.2009 in the locality and in the Government Offices cannot be relied upon in view of the fact that the notice in Form 5B had been issued on 13.11.2009, it is not clear who made the publicity. Thus, in absence of cogent proof of publicity having been made, no case is made out so as to make interference in the impugned order passed by the Single Bench.

It is not in dispute that as per section 6(2) of the Land Acquisition Act, every declaration shall be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality the last of the date of such publication and giving of such public notice is the date of the publication of the declaration. Thus, the last date of declaration of the public notice u/s 6 of the Act in the locality has to be taken as the date of declaration u/s 6.

In this case, the award was admittedly passed on 15.11.2011. Notice in Form 5B is the form of public notice of the substance of such declaration u/s 6 of the Land Acquisition Act was issued on 13.11.2009 and these notices were 198 in numbers meant for publication at the conspicuous place in the locality near the place proposed to be acquired and to be put on notice board of local Government Office, local bodies and panchayat bodies and individual notices were also issued to the owners. The date of service of notice at the conspicuous places in locality as mentioned on P/1 are 16.11.2009 and 17.11.2009 whereas individual notices were served on 16.11.2009, 17.11.2009, 18.11.2009, 20.11.2009 etc. There were large number of notices issued approximately 198 in numbers, though it was not necessary to issue the individual notices but nonetheless issuance of the individual notices was not disputed by the respondent/petitioner.

However, the crucial fact is that the notices were displayed at the conspicuous place in the locality near the land proposed to be acquired and the local Government office on 16.11.2009 and 17.11.2009. There is absolutely nothing to doubt the endorsement made of the aforesaid facts along with signatures and dates on Annexure P/1. Thus, we are of the considered opinion that local publicity had taken place on 16.11.2009 and on 17.11.2009 which has to be taken of the date of declaration u/s 6 of the Land Acquisition Act. Thus, the award, which was passed on 15.11.2011, could not be said to be passed beyond the period of two years, as provided in section 11A of the Act.

The Single Bench did not go into the aforesaid aspects though it was noticed that Form 5B was published in the month of November, 2009 but it has taken the date of the gazette notification for calculating the period of limitation. The relevant date is last date of publication of the public notice in the locality as provided in section 6 of the Land Acquisition Act. Thus, we are of the considered opinion that the order passed by the Single Bench cannot be allowed to be sustained. The same is liable to quashed. We hold that the award was passed within a period of two years u/s 11A of the Land Acquisition Act.

The appeal is accordingly allowed. The impugned order is set aside. Parties to bear their own costs.

Let project be completed at the earliest as directed in W.P. No. 17121 (W) of 2013 by this Court today. Urgent photostat certified copy of this order if applied for be supplied on priority basis.

Joymalya Bagchi, J.

I agree.