Calcutta High Court (Appellete Side)
Champabati Bera & Ors vs The State Of West Bengal & Ors on 6 May, 2026
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 15687 of 2025
Champabati Bera & Ors.
VS.
The State of West Bengal & Ors.
For the Petitioner : Mr. Uttam Kumar Bhattacharyya
..... advocate
For the State : Mr. Wasim Ahmed
Mr. Khairul Alam .... advocates
Reserved on : 09.03.2026
Judgment on : 06.05.2026
Hiranmay Bhattacharyya, J.:-
1. Petitioner has prayed for a direction upon the respondent authorities to
initiate an acquisition proceeding afresh in terms of the order of the Special
Land Acquisition Officer, Paschim Medinipur, dated May 18, 2018 under the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter “the Act”), and to set
aside the Memo dated March 18, 2020 issued by the Superintendent
Engineer State Highway Planning Circle, Public Works (Roads Directorate),
Government of West Bengal.
2. Petitioner claims to be the recorded owner of RS plot no. 558 corresponding
to LR Plot no. 558 within Mouza Bural, JL No. 388 under Police Station
Sabong in the District of Paschim Medinipur. Several plots of land including
the aforesaid plots of the petitioner were requisitioned under Section 3(1) of
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the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of
1948) (for short “the 1948 Act”) for construction of Sabong-Mohar ODR by
initiating a proceeding being L.A. Case No. 255 of 1975-1976 as per the
proposal received from Superintending Engineer Road Planning Circle.
Possession of the plots of land have been taken over and utilised.
3. Petitioner alleges that no notification under Section 4(1a) of the 1948 Act
has been published for acquisition of the said plot of land. No award has
been passed and compensation in respect of the aforesaid plots has also not
been paid to the petitioners till date.
4. Petitioner submitted an application on 15.10.2004 requesting the
authorities to pay compensation to the petitioner. Alleging inaction on the
part of the respondent authorities, petitioner filed a writ petition being WPA
12924 of 2017 which was disposed of by a co-ordinate bench by directing
the Special Land Acquisition Officer, Paschim Medinipur being the 5th
respondent herein to consider the representation of the petitioners and to
dispose of the same by passing a speaking order after giving an opportunity
of being heard.
5. Pursuant to the said order, the 5th respondent passed an order dated May
18, 2018 requesting the Requiring Body to take necessary steps and arrange
to fulfil the claim of the petitioner for his Raiyati Land so requisitioned for
the purpose of Sabong-Mohar ODR.
6. Subsequently, the Superintendent Engineer State Highway Circle being the
8th respondent herein issued a Memo dated 18.03.2020 requesting the
Chairperson, District Land Purchase Committee & District Magistrate
Paschim Medinipur being the 3rd respondent herein to submit the land
acquisition estimate as per the direct purchase policy authenticated by the
competent authority for payment of compensation to the petitioner.
7. Mr. Bhattacharya, learned advocate for the petitioner contended that the
property of the petitioner was requisitioned and thereafter no step was taken
by the respondent authorities during the lifetime of the 1948 Act for
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acquisition of the same by resorting to the provisions of Section 4(1a) of the
1948 Act. He further contended that the authorities also did not take any
steps to acquire the said property by taking recourse to the provisions of
Section 9(3A) of the Land Acquisition (West Bengal Amendment) Act 1997.
He contended that in the meantime the Land Acquisition Act 1894 (for short
“the 1894 Act”) stood repealed with the coming into force of the 2013 Act on
and from 01.01.2014. He, therefore, submitted that since the properties of
the petitioner have been utilised by the State, compensation in respect
therefor have to be paid to the petitioner by initiating an appropriate
proceeding under the 2013 Act. In support of such contention he placed
reliance upon the decision of the Hon’ble Division Bench in the case of
State of West Bengal vs. Ganesh Samanta reported at (2014) Supreme
(Online) (Cal) 2; Mandodori Bhakat v. State of W.B., reported at (2013) 1
CHN (Cal) 444; the Full Bench judgment in the case of State of West
Bengal vs. Sabita Mondal reported at (2011) 3 CHN Cal 555; and an
unreported decision of the Hon’ble Division Bench delivered on 22.12.2023
in MAT 1181 of 2019 in the case of State of West Bengal vs. Mahadev
Khan.
8. Mr. Ahmed, learned senior advocate appearing for the State raised an
objection against maintainability of this writ petition on the ground of
inordinate delay. He contended that the possession of the land in question
was handed over to the Requiring Body during the years 1978-79. He
contended that the petitioners, in spite of being aware of violation of the
rights did not approach the Court. He contended that the instant application
under Article 226 of the Constitution of India cannot be entertained on the
ground of inordinate delay and laches. In support of such contention he
placed reliance upon the decision of the Hon’ble Supreme Court in the case
of Chairman, U.P.Jal Nigam & Anr vs Jaswant Singh & Anr. reported at
AIR 2007 SUPREME COURT 924. He also placed reliance upon the
decision of the Hon’ble Supreme Court in the case of Rabindra Nath Bose
and Ors vs Union of India reported at (1970) (SCR) (2) 697 in support of
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his contention that the Court cannot entertain a writ petition after a lapse of
several years.
9. Mr. Ahmed contended that the 2013 Act cannot be applied retrospectively to
acquisition initiated and possession taken and handed over long prior to the
said Act coming into force. He contended that the 2013 Act repealed the
1894 Act prospectively and Section 24 applies only to proceedings under the
1894 Act and the same cannot be invoked in a proceeding initiated under
the 1948 Act. Mr. Ahmed places strong reliance upon an unreported
judgment of the Hon’ble Division Bench delivered on 02.02.2026 in a batch
of appeals the lead case being MAT 187 of 2018 in the case of Mariam
Ahmed and another vs. The State of West Bengal and ors. in support of
his contention that the provisions of 2013 Act cannot be attracted to the
case on hand as the acquisition proceeding was initiated under Act II of
1948 and not under the 1894 Act.
10. In reply, the learned advocate appearing for the petitioner places reliance
upon the decision of the Hon’ble Supreme Court in the case of Vidya Devi
vs. State of Himachal Pradesh and ors. reported at (2020) 2 SCC 569;
Sukh Dutt Ratra v. State of H.P., reported at (2022) 7 SCC 508; and
Tukaram Kana Joshi & Ors. Thr.Poa Holder vs M.I.D.C. & Ors reported
at (2013) 1 SCC 353, in support of his contention that the plea of delay
cannot be raised to negate the claim for compensation in land acquisition
cases.
11. Heard the learned advocates for the parties and perused the materials
placed.
12. The following facts are not in dispute:
(i) RS Plot no. 558(P) measuring area of 0.56 acres including other
lands of Mouza Bural, JL No. 388 under Police Station Sabong was
requisitioned under Section 3(1) of the 1948 Act.
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(ii) Possession of the aforesaid plots of land have been taken over and
delivered over to the Requiring Body on 22.02.1978 including other
lands.
(iii) Notification under Section 4(1a) of the 1948 Act has not been
published in the Calcutta Gazettee for acquisition of the aforesaid
land.
13. The Special Land Acquisition Officer in his order dated 18.05.2018 upon
verification of the case record being LA Case No. 255 of 1975-76 and after
hearing the petitioner recorded a factual finding that the lands in question
namely RS Plot no. 558(P) with area of 0.56 acres have been requisitioned
and possession of the land has been taken over and handed over to the
Requiring Body and the petitioner is entitled to have compensation for his
Raiyati land. After returning the aforesaid factual finding, the 5th respondent
observed that since both the 1948 Act and 1894 Act have been repealed,
such authority is not in a position to pay compensation to the writ
petitioner. Accordingly, the 5th respondent requested the Requiring Body to
take suitable necessary steps and arrange to fulfil the claim of the petitioner
for his Raiyati land. It was further recorded in the said order that the
Requiring Body has not placed any fund for giving compensation to the writ
petitioner over the said land.
14. Since the learned Senior Advocate for the State raised an objection as to the
entertainability of this writ petition on the ground of alleged delay and
laches, this Court proposes to deal with such objection at the threshold.
15. Article 300A of the Constitution of India states that no person can be
deprived of his property, save by the authority of law. It means that a person
cannot be deprived of his property merely by an executive fiat, without any
specific legal authority. It is now well settled that the right to property is not
a fundamental right protected under Part III of the Constitution of India but
it remains a valuable constitutional right.
Page 5 of 27
16. In Tukaram Kana Joshi (supra), the functionaries of the State took over
possession of the lands of the appellants therein without any sanction of
law. State took shelter under the doctrine of delay and laches as grounds for
dismissal of the writ petition.
17. The Hon’ble Supreme Court after noticing that there are a few authorities
that lay down that delay and laches debar a citizen from seeking remedy
under Article 226 or 32 of the Constitution even if his fundamental right has
been violated, held that delay and laches is one of the facets to deny exercise
of discretion. It was further held that if there is continuity of cause of action
or the whole thing shocks the judicial conscience, then the Court should
exercise the discretion more so, when no third party interest is involved. It
was held that discretion must be exercised judiciously and reasonably and
in the event the claim made by the applicant is legally sustainable, delay
should be condoned. When substantial justice and technical considerations
are pitted against each other, the cause of substantial justice deserves to be
preferred, for the other side cannot claim to have a vested right in the
injustice being done.
18. The Hon’ble Supreme Court held thus-
“11. There are authorities which state that delay and laches extinguish
the right to put forth a claim. Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong done to them decades
ago, recovery of statutory dues, claim for educational facilities and
other categories of similar cases, etc. Though, it is true that there are a
few authorities that lay down that delay and laches debar a citizen
from seeking remedy, even if his fundamental right has been violated,
under Article 32 or 226 of the Constitution, the case at hand deals with
a different scenario altogether. The functionaries of the State took over
possession of the land belonging to the appellants without any sanction
of law. The appellants had asked repeatedly for grant of the benefit of
compensation. The State must either comply with the procedure laid
down for acquisition, or requisition, or any other permissible statutory
mode. There is a distinction, a true and concrete distinction, between
the principle of “eminent domain” and “police power” of the State. Under
certain circumstances, the police power of the State may be used
temporarily, to take possession of property but the present case clearly
shows that neither of the said powers have been exercised. A question
then arises with respect to the authority or power under which the StatePage 6 of 27
entered upon the land. It is evident that the act of the State amounts to
encroachment, in exercise of “absolute power” which in common
parlance is also called abuse of power or use of muscle power. To
further clarify this position, it must be noted that the authorities have
treated the landowner as a “subject” of medieval India, but not as a
“citizen” under our Constitution.
12. The State, especially a welfare State which is governed by the rule
of law, cannot arrogate itself to a status beyond one that is provided by
the Constitution. Our Constitution is an organic and flexible one. Delay
and laches is adopted as a mode of discretion to decline exercise of
jurisdiction to grant relief. There is another facet. The Court is required
to exercise judicial discretion. The said discretion is dependent on facts
and circumstances of the cases. Delay and laches is one of the facets to
deny exercise of discretion. It is not an absolute impediment. There can
be mitigating factors, continuity of cause action, etc. That apart, if the
whole thing shocks the judicial conscience, then the Court should
exercise the discretion more so, when no third-party interest is involved.
Thus analysed, the petition is not hit by the doctrine of delay and
laches as the same is not a constitutional limitation, the cause of action
is continuous and further the situation certainly shocks judicial
conscience.
13. The question of condonation of delay is one of discretion and has to
be decided on the basis of the facts of the case at hand, as the same
vary from case to case. It will depend upon what the breach of
fundamental right and the remedy claimed are and when and how the
delay arose. It is not that there is any period of limitation for the courts
to exercise their powers under Article 226, nor is it that there can never
be a case where the courts cannot interfere in a matter, after the
passage of a certain length of time. There may be a case where the
demand for justice is so compelling, that the High Court would be
inclined to interfere in spite of delay. Ultimately, it would be a matter
within the discretion of the Court and such discretion, must be exercised
fairly and justly so as to promote justice and not to defeat it. The
validity of the party’s defence must be tried upon principles
substantially equitable. (Vide P.S. Sadasivaswamy v. State of
T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271]
, State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251]
and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2
SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the High Court
should refuse to exercise its jurisdiction in favour of a party who moves
it after considerable delay and is otherwise guilty of laches. Discretion
must be exercised judiciously and reasonably. In the event that the
claim made by the applicant is legally sustainable, delay should be
condoned. In other words, where circumstances justifying the conduct
exist, the illegality which is manifest, cannot be sustained on the sole
Page 7 of 27
ground of laches. When substantial justice and technical considerations
are pitted against each other, the cause of substantial justice deserves
to be preferred, for the other side cannot claim to have a vested right in
the injustice being done, because of a non-deliberate delay. The court
should not harm innocent parties if their rights have in fact emerged by
delay on the part of the petitioners. (Vide Durga Prashad v. Chief
Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769]
, Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR
1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board,
Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of
India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop.
Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC
(Civ) 56 : AIR 2011 SC 2161] .)”
(emphasis supplied)
19. In Vidya Devi (supra), State took over the land of the appellant therein for
construction of road without taking recourse to acquisition proceeding.
20. The contention of the State that the appellant or her predecessors had
“orally” consented to the acquisition was found to be completely baseless
and it was held that there was complete lack of authority and legal sanction
in compulsorily divesting the appellant of her property by the State.
21. The contention of the State of delay and laches of the appellant in
approaching the Court was rejected. The Hon’ble Supreme Court held thus-
“12.3. To forcibly dispossess a person of his private property, without
following due process of law, would be violative of a human right, as
also the constitutional right under Article 300-A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum Corpn.
Ltd. v. Darius Shapur Chenai [Hindustan Petroleum Corpn.
Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627] , wherein this Court
held that: (SCC p. 634, para 6)“6. … Having regard to the provisions contained in Article 300-A
of the Constitution, the State in exercise of its power of “eminent
domain” may interfere with the right of property of a person by
acquiring the same but the same must be for a public purpose
and reasonable compensation therefor must be paid.”
(emphasis supplied)
Page 8 of 27
12.4. In N. Padmamma v. S. Ramakrishna Reddy [N. Padmamma v. S.
Ramakrishna Reddy, (2008) 15 SCC 517] , this Court held that: (SCC p.
526, para 21)
“21. If the right of property is a human right as also a
constitutional right, the same cannot be taken away except in
accordance with law. Article 300-A of the Constitution protects such
right. The provisions of the Act seeking to divest such right, keeping
in view of the provisions of Article 300-A of the Constitution of India,
must be strictly construed.”
(emphasis supplied)
12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P. [Delhi Airtech
Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 : (2011) 4 SCC (Civ)
673] , this Court recognised the right to property as a basic human right
in the following words: (SCC p. 379, para 30)
“30. It is accepted in every jurisprudence and by different political
thinkers that some amount of property right is an indispensable
safeguard against tyranny and economic oppression of the
Government. Jefferson was of the view that liberty cannot long
subsist without the support of property. “Property must be secured,
else liberty cannot subsist” was the opinion of John Adams. Indeed
the view that property itself is the seed-bed which must be
conserved if other constitutional values are to flourish, is the
consensus among political thinkers and jurists.”
(emphasis supplied)
12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat [Jilubhai
Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596] , this
Court held as follows: (SCC p. 627, para 48)
“48. … In other words, Article 300-A only limits the powers of the
State that no person shall be deprived of his property save by
authority of law. There has to be no deprivation without any
sanction of law. Deprivation by any other mode is not acquisition or
taking possession under Article 300-A. In other words, if there is no
law, there is no deprivation.”
(emphasis supplied)
12.9. In a democratic polity governed by the rule of law, the State could
not have deprived a citizen of their property without the sanction of law.
Reliance is placed on the judgment of this Court in Tukaram Kana
Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013)
1 SCC (Civ) 491] wherein it was held that the State must comply with
the procedure for acquisition, requisition, or any other permissible
statutory mode. The State being a welfare State governed by the rule of
Page 9 of 27
law cannot arrogate to itself a status beyond what is provided by the
Constitution.
12.11. We are surprised by the plea taken by the State before the High
Court, that since it has been in continuous possession of the land for
over 42 years, it would tantamount to “adverse” possession. The State
being a welfare State, cannot be permitted to take the plea of adverse
possession, which allows a trespasser i.e. a person guilty of a tort, or
even a crime, to gain legal title over such property for over 12 years. The
State cannot be permitted to perfect its title over the land by invoking
the doctrine of adverse possession to grab the property of its own
citizens, as has been done in the present case.
12.12. The contention advanced by the State of delay and laches of the
appellant in moving the Court is also liable to be rejected. Delay and
laches cannot be raised in a case of a continuing cause of action, or if
the circumstances shock the judicial conscience of the Court.
Condonation of delay is a matter of judicial discretion, which must be
exercised judiciously and reasonably in the facts and circumstances of
a case. It will depend upon the breach of fundamental rights, and the
remedy claimed, and when and how the delay arose. There is no period
of limitation prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling, a
constitutional court would exercise its jurisdiction with a view to
promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N.,
(1975) 1 SCC 152 : 1975 SCC (L&S) 22]”
(emphasis supplied)
22. The Hon’ble Supreme Court after noticing that the appellant therein has
been divested of her property without being paid any compensation for over
half a century held that the cause of action is a continuing one and the
demand for justice was compelling as the property was taken over without
initiating acquisition proceeding or any procedure known to law.
23. In Sukh Dutt Ratra & Another vs. State of Himachal Pradesh and ors.
reported at (2022) 7 SCC 508, the subject land was utilised for construction
of road in 1972-73, without initiating any acquisition proceeding. A writ
petition was filed in the year 2011 seeking compensation for the subject
land.
Page 10 of 27
24. A question fell for consideration before the Hon’ble Supreme Court whether
the State merely on the ground of delay and laches, evade its legal
responsibility towards those from whom the private property has been
expropriated. The Hon’ble Supreme Court held that intervention is
warranted on the grounds of equality and fairness. The Hon’ble Supreme
Court held thus-
“17. When seen holistically, it is apparent that the State’s actions, or lack
thereof, have in fact compounded the injustice meted out to the appellants
and compelled them to approach this Court, albeit belatedly. The initiation
of acquisition proceedings initially in the 1990s occurred only at the behest
of the High Court. Even after such judicial intervention, the State continued
to only extend the benefit of the Court’s directions to those who specifically
approached the courts. The State’s lackadaisical conduct is discernible
from this action of initiating acquisition proceedings selectively, only in
respect to the lands of those writ petitioners who had approached the court
in earlier proceedings, and not other landowners, pursuant to the orders
dated 23-4-2007 (in Anakh Singh v. State of H.P. [Anakh Singh v. State of
H.P., 2007 SCC OnLine HP 220] ) and 20-12-2013 (in Onkar
Singh v. State [Onkar Singh v. State, CWP No. 1356 of 2010, order dated
20-12-2013 (HP)] ), respectively. In this manner, at every stage, the State
sought to shirk its responsibility of acquiring land required for public use in
the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude
either way–as contended by both sides in the present dispute–however,
the specific factual matrix compels this Court to weigh in favour of the
appellant landowners. The State cannot shield itself behind the ground of
delay and laches in such a situation; there cannot be a “limitation” to doing
justice. This Court in a much earlier case — Maharashtra SRTC v. Balwant
Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor
Service, (1969) 1 SCR 808 : AIR 1969 SC 329] , held : (AIR pp. 335-36,
para 11)
“11. … ‘Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be practically unjust to
give a remedy, either because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a waiver of it, or where
by his conduct and neglect he has, though perhaps not waiving that
remedy, yet put the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be asserted in
either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise
would be just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the validity of that
defence must be tried upon principles substantially equitable. TwoPage 11 of 27
circumstances, always important in such cases, are, the length of the
delay and the nature of the acts done during the interval, which might
affect either party and cause a balance of justice or injustice in taking
the one course or the other, so far as relates to the remedy’.”
19. The facts of the present case reveal that the State has, in a
clandestine and arbitrary manner, actively tried to limit disbursal of
compensation as required by law, only to those for which it was
specifically prodded by the courts, rather than to all those who are entitled.
This arbitrary action, which is also violative of the appellants’ prevailing
Article 31 right (at the time of cause of action), undoubtedly warranted
consideration, and intervention by the High Court, under its Article 226
jurisdiction. This Court, in Manohar [State of U.P. v. Manohar, (2005) 2 SCC
126] –a similar case where the name of the aggrieved had been deleted
from revenue records leading to his dispossession from the land without
payment of compensation held : (SCC pp. 128-29, paras 6-8)
“6. Having heard the learned counsel for the appellants, we are
satisfied that the case projected before the court by the appellants is
utterly untenable and not worthy of emanating from any State which
professes the least regard to being a welfare State. When we pointed
out to the learned counsel that, at this stage at least, the State should
be gracious enough to accept its mistake and promptly pay the
compensation to the respondent, the State has taken an intractable
attitude and persisted in opposing what appears to be a just and
reasonable claim of the respondent.
7. Ours is a constitutional democracy and the rights available to the
citizens are declared by the Constitution. Although Article 19(1)(f) was
deleted by the Forty-fourth Amendment to the Constitution, Article 300-
A has been placed in the Constitution, which reads as follows:
‘300-A. Persons not to be deprived of property save by
authority of law.–No person shall be deprived of his property save by
authority of law.’
8. This is a case where we find utter lack of legal authority for
deprivation of the respondent’s property by the appellants who are
State authorities. In our view, this case was an eminently fit one for
exercising the writ jurisdiction of the High Court under Article 226 of the
Constitution.”
(emphasis supplied)
25. The Hon’ble Supreme Court also reiterated the proposition of law laid down
in Vidya Devi (supra) and Tukaram Kana Joshi (supra) that there is no
period of limitation for the Courts to exercise jurisdiction to do substantial
justice.
Page 12 of 27
26. The Hon’ble Division Bench in the judgment delivered on 22.12.2023 in
MAT 1181 of 2019 in the case of the State of West Bengal & Ors. vs.
Mahadeb Khan & Ors. noticed the proposition of law laid down by the
Hon’ble Supreme Court in Vidya Devi (supra), Tukaram Kana Joshi
(supra) and Sukh Dutta Ratra (supra) and clarified that in almost all the
cases where the Hon’ble Supreme Court has refused to entertain a land
loser’s legal action on the ground of delay or laches were cases where the
land loser challenged the acquisition proceedings after undue delay. The
Hon’ble Division Bench, however, observed that such a person’s claim to
compensation cannot be defeated by the State on the ground of delay.
27. The Hon’ble Supreme Court in B.K. Ravichandra and Others vs. Union of
India reported in (2021) 14 SCC 703 held that the Court’s role is to act as
guarantor and jealous protector of the people’s liberties and any
condonation of the Court is the validation of such unlawful executive
behaviour which it then can justify its conduct on the anvil of such loftier
purpose. The Hon’ble Supreme Court held thus-
“35. It is, therefore, no longer open to the State : in any of its forms
(executive, State agencies, or legislature) to claim that the law — or the
Constitution can be ignored, or complied at its convenience. The
decisions of this Court, and the history of the right to property show
that though its pre-eminence as a fundamental right has been
undermined, nevertheless, the essence of the rule of law protects it. The
evolving jurisprudence of this Court also underlines that it is a valuable
right ensuring guaranteed freedoms and economic liberty. The phrasing
of Article 300-A is determinative and its resemblance with Articles 21
and 265 cannot be overlooked, they in effect, are a guarantee of the
supremacy of the rule of law, no less. To permit the State : whether the
Union or any State Government to assert that it has an indefinite or
overriding right to continue occupying one’s property (bereft of lawful
sanction) — whatever be the pretext, is no less than condoning
lawlessness. The courts’ role is to act as the guarantor and jealous
protector of the people’s liberties : be they assured through the
freedoms, and the right to equality and religion or cultural rights under
Part III, or the right against deprivation, in any form, through any
process other than law. Any condonation by the court is a validation of
such unlawful executive behaviour which it then can justify its conduct
on the anvil of some loftier purpose, at any future time, aptly described
as a “loaded weapon ready for the hand of any authority that can bring
forward a plausible claim of an urgent need.” [ The phrase is quoted
Page 13 of 27
from Robert Jackson, J.’s powerful and timeless dissent in Toyosaburo
Korematsu v. United States, 1944 SCC OnLine US SC 135 : 89 L Ed 194
: 323 US 214 (1944). The full text of the relevant extract, where the
Judge dissented from the majority of the US Supreme Court, which
upheld the indefinite internment of American citizens of Japanese
origin, is reproduced below : (SCC OnLine US SC para 76)”76. … a
judicial construction of the due process clause that will sustain this
order is a far more subtle blow to liberty than the promulgation of the
[military] order itself. A military order, however unconstitutional, is not
apt to last longer than the military emergency. … once a judicial opinion
rationalises such an order to show that it conforms to the Constitution,
or rather rationalises the Constitution to show that the Constitution
sanctions such an order, the Court for all times has validated the
principle of racial discrimination in criminal procedure and of
transplanting American citizens. The principle then lies about like a
loaded weapon ready for the hand of any authority that can bring
forward a plausible claim of an urgent need.”]”
(emphasis supplied)
28. From the aforesaid discussion it follows that if a person is deprived of his
property except by due process of law, the State cannot be allowed to take
shelter under the doctrine of delay and laches, as it would amount to
validation of the unlawful executive behaviour, which is not permissible.
Thus, the claim for fair compensation of a land loser cannot be negated
solely on the ground of delay in approaching the Court but the same should
be tested on equitable principles.
29. The Hon’ble Division Bench in MAT 464 of 2018 in the case of The State
of West Bengal vs. Dilip Ghosh and ors. judgment delivered on
29.09.2022 after noting that the judgment in the case of Vidya Devi (supra)
says that the Hon’ble Supreme Court exercised extraordinary jurisdiction
under Articles 136 and 142 of the Constitution of India to direct the State to
pay compensation, held that the detailed discussion leading to the
conclusion that the State cannot resort to the principle of adverse
possession to defeat a citizen’s claim for compensation for his land acquired
by the State, is a binding declaration of law within the meaning of Article
141 of the Constitution. The Hon’ble Division Bench further held that if the
State forcibly occupies the land of a citizen who may not be that
enlightened, informed or diligent and after twelve years the State is
Page 14 of 27
permitted to claim that it has perfected its title to such land by way of
adverse possession cannot be countenanced in law and would be contrary to
all cannons of justice.
30. In U.P. Jal Nigam and another vs. Jaswant Singh & Anr. reported at
(2006) 11 SCC 464, the employees of U.P. Jal Nigam filed writ petitions
long after their superannuation challenging their retirement which was said
to be made on attaining the age of 58 years.
31. The question that fell for consideration before the Hon’ble Supreme Court
was whether the employees who did not wake up to challenge their
retirement and accepted the same, collected their post-retirement benefits
can be granted relief in the light of the subsequent decision of the Hon’ble
Supreme Court. The Hon’ble Supreme Court held that whenever it appears
that the claimants lost time and did not rise to the occasion in time for filing
the writ petitions, the Court should be very slow in granting relief to the
incumbent.
32. The said decision pertains to service jurisprudence and, therefore, the same
cannot apply to a case where the land loser seeks compensation when his
property has been utilised without sanction of law.
33. In Rabindra Nath Bose (supra), the petitioners therein complained that the
Government in breach of the rules governing the service appointed the
respondents and were also given preferential treatment in the matter of
seniority. The Hon’ble Supreme Court dismissed the said petitions on the
ground that there has been inordinate delay in presenting the same. The
said decision also pertains to service jurisprudence and, therefore, cannot
come to the aid of the State.
34. In the case on hand the possession of the property of the petitioner was
taken over by initiating a proceeding for requisition and the same has been
utilised without even resorting to the provisions for acquisition either under
the 1948 Act during its lifetime or by resorting to the provisions of Section
9(3A) of the 1894 Act till the said Act was repealed by the 2013 Act. Since
Page 15 of 27
the property of the petitioner was taken over and the petitioner also
repeatedly requested for grant of compensation, such a claim cannot be
denied by the State on the plea of delay and laches as the State is obliged to
comply with the procedure laid down for acquisition in accordance with law
which includes payment of fair compensation to the land losers. Cause of
action in the case on hand is continuing one. The manner in which the
petitioner has been deprived of his property without legal sanction shocks
the conscience of this Court. The claim of the petitioner is found to be
sustainable by this Court in view of the undisputed factual position. This
Court is, therefore, inclined to exercise discretion in favour of the petitioner
in order to promote justice.
35. For all the reasons as aforesaid this Court is not inclined to accept the
contention of the learned Senior Advocate for the State that the writ petition
should be dismissed on the ground of alleged delay and laches.
36. After deciding the aforesaid issue in favour of the petitioner, this Court shall
now proceed to decide whether the petitioner is entitled to compensation
under the 2013 Act.
37. The property of the petitioner was requisitioned by an order passed under
Section 3(1) of the 1948 Act. Possession of the land was taken and delivered
to the Requiring Body. Admittedly no notice under Section 4(1a) of the 1948
Act was published in the Calcutta Gazette.
38. At this stage it would be profitable to recapitulate the provisions of Section 3
and 4 of the 1948 Act for which the same are extracted hereinafter.
“3. Power to requisition :- (1) If the State Government is of the opinion
that it is necessary so to do for maintaining supplies and services
essential to the life of the community (or for increasing employment
opportunities for the people by establishing commercial estates and
industrial estates in different areas) or for providing proper facilities for
transport, communication, irrigation or drainage, or for the creation of
better living conditions in rural or urban areas, not being an industrial
or other areas excluded by the State Government by a notification in
this behalf, by the construction or re-construction of dwelling places in
such areas (or for purposes connected therewith or incidental thereto),
the State Government may, by order in writing, requisition any land
Page 16 of 27
and may make such further orders as appear to it to be necessary or
expedient in connection with the requisitioning:
Provided that no land used for purpose of religious worship or used
by an educational or charitable institution shall be requisitioned under
this section.
(lA) A Collector of a District, (an Additional District Magistrate or the
First Land Acquisition Collector, Calcutta,) when authorised by the State
Government in this behalf, may exercise within his jurisdiction the
powers conferred by sub- section (1).
(2) An order under sub-section (1) shall be served in the prescribed
manner on the owner of the land and where the order relates to land in
occupation (of an occupier, not being the owner of the land, also on such
occupier),(3) If any person fails to comply with an order made under sub-section
(1) the Collector or any person authorised by him in writing in this
behalf shall execute the order in such manner as he considers
expedient and may:-
(a) If he is a Magistrate, enforce the delivery of possession of the land in
respect of which the order has been made to himself, or
(b) if he is not a Magistrate, apply to a Magistrate or, in Calcutta as
defined in clause (ii) of Section 5 of the Calcutta Municipal Act, 1951, to
the Commissioner of Police, and such Magistrate or Commissioner, as
the case may be, shall enforce the delivery of possession of such land to
him.
4. Acquisition of Land -(1) Where any land has been requisitioned
under section 3, the State Government may use or deal with such land
for any of the purposes referred to in sub- section (1) of Section 3 as
may appear to it to be expedient.
(la) The State Government may acquire any land requisitioned under
Section 3 by publishing a notice in the Official Gazette that such land is
required for a public purpose referred to in sub-section (1) of Section 3.
(2) Where a notice as aforesaid is published in the Official Gazette, the
requisitioned land shall, on and from the beginning of the day on which
the notice is so published, vest absolutely in the (State) Government free
from all incumbrances and the period of requisition of such land shall
end.”
Page 17 of 27
39. 1948 Act was amended by the West Bengal Land (Requisition and
Acquisition) (Amendment) Act 1994 which was published in the Calcutta
Gazette on 31.03.1994. By virtue of the said Amendment Act, Section 3 of
the 1948 Act was omitted. Therefore, the power of the State to requisition
any land was taken away by virtue of the Amendment Act of 1994 with effect
from 01.04.1994. The validity of the 1948 Act was also extended till
31.03.1997 by virtue of the said Amendment Act.
40. 1948 Act was further amended by West Bengal Land (Requisition and
Acquisition) (Amendment) Act 1996 thereby inserting Section 7A after
Section 7 of the 1948 Act. A plain reading of Section 7A makes it clear that
unless an award is made within the time specified therein, the notice under
Section 4(1a) shall lapse.
41. The validity of the 1948 Act which was extended from time to time was not
extended any further and it ceased to be operative on the expiry of 31st
March, 1997.
42. 1948 Act is a temporary statute which stood expired by efflux of time. It is
now well settled that any proceeding under a temporary statute also dies a
natural death in the absence of any special provision to the contrary.
43. Possession taken under Section 3 of the 1948 Act was a possession on
requisition. Issuance of notice under Section 4(1a) of the 1948 Act would
have the effect of ending the requisition and converting into an acquisition
and it would remain an acquisition till the said notice remains valid. If no
notice under Section 4(1a) is issued, the requisition shall come to an end on
the expiry of the 1948 Act and the property should be restored to the owner.
Requisition can also be said to have come to an end for acquisition where
notice issued under Section 4(1a) stood lapsed before 31st March 1997.
44. Land Acquisition (West Bengal Amendment) Act, 1997 was enacted to revive
the requisition for acquisition.
Page 18 of 27
45. By virtue of such amendments, Sub-sections 3A and 3B were inserted after
Section 9(3) of the 1894 Act. Sub-section 3A and 3B of the 1894 Act as
incorporated by way of amendment is extracted hereinafter.
“(3A) The Collector shall also serve notice to the same effect on all such
persons known or believed to be interested in any land, or to be entitled
to act for persons so interested, the possession whereof has already
been taken on requisition under section 3 of the West Bengal Land
(Requisition and Acquisition) Act, 1948 (hereinafter referred to in this
section as the said Act), as re-enacted by the West Bengal Land
(Requisition and Acquisition) Re-enacting Act, 1977, and, in every such
case, the provisions of sub-section (1) of section 4, section 5, section 5A,
section 6, section 7, and section 8 of this Act shall be deemed to have
been complied with:
Provided that the date of notice under this sub-section shall be the date
of reference for the purpose of determining the value of such land under
this Act:
Provided further that when the Collector has made an award under
section 11 in respect of any such land, such land shall, upon such
award, vest absolutely in the Government, free from all encumbrances.
(3B) The Collector shall also serve notice to the same effect on all such
persons known or believed to be interested in any land, or to be entitled
to act for persons so interested, the possession whereof has already
been taken on requisition under section 3 of the said Act, and notice for
acquisition of such land has also been published under sub-section (la)
of section 4 of the said Act, and, in every such case, the provisions of
section 4, section 5, section 5A, section 6, section 7, section 8, and
section 16 of this Act shall be deemed to have been complied with:
Provided that the date of publication of notice under subsection (la) of
section 4 of the said Act shall be the date of reference for the purpose of
determining the value of such land under this Act:
Provided further that in every such case, the Collector shall make an
award under section 11 in respect of such land only for the purpose of
payment of due compensation to the persons interested in such land
where such land has, upon the Collector taking possession thereof,
already vested absolutely in the Government, free from all
encumbrances.”
46. Section 9(3B) comes into play where notice under Section 4(1a) of the 1948
Act has been issued. Admittedly notice under Section 4(1a) has not been
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issued in the case on hand. In view thereof Section 9(3B) cannot have any
manner of application to the case on hand.
47. Section 9(3A) states that in a case where possession has already been taken
on requisition under Section 3 of the 1948 Act, the provision of Section 4(1),
5A, 6, 7 and 8 of the 1894 Act shall be deemed to have been complied with.
Proviso thereto states that the date of notice under Section 9(3A) shall be
the date of reference for the purpose of determining the value of such land
under the 1894 Act. Second proviso states that when the Collector has made
an award under Section 11 in respect of any such land, shall upon such
award, vest absolutely in the government free from all incumbrances.
48. In the case on hand, the possession of the land in question was taken under
Section 3 of the 1948 Act. Such possession was taken on requisition. In the
absence of any notice being published under Section 4(1A) of the 1948 Act
the question of vesting of the land as contemplated under Section 4(2) of the
1948 Act cannot and does not arise.
49. 1948 Act stood expired due to efflux of time after 31.03.1997. With the
expiry of the 1948 Act by efflux of time, the requisition made under Section
3 of the said Act also came to an end. Thus, the possession of the property
after 31.03.1997 without initiating any proceeding for acquisition is without
any authority of law. The State was under an obligation to restore
possession of the land to the land owner after 31.03.1997.
50. The Land Acquisition (West Bengal Amendment) Act 1997 empowered the
State to continue with possession of such lands by resorting to Section 9(3A)
of the 1894 Act. The effect of the Land Acquisition (West Bengal
Amendment) Act 1997 fell for consideration in Sabitri Devi vs. State of
West Bengal reported at (2002) 3 CHN 108 wherein it was held that
revalidation has the effect of reviving requisition for acquisition. The co-
ordinate bench in paragraph 41 held thus-
“41. The revalidation has the effect of reviving the requisition for
acquisition. As such it is only on the issue of notices under sub-section
(3A) or (3B) of section 9 of 1894 Act, the revalidation takes, effect. The
Page 20 of 27
requisition having ended on the effacement of the statute the property is
to be restored to the owner. It could also be treated to have been ended
for acquisition where notices under section 4(1a) of 1948 Act stood
lapsed before 31st March, 1997. By reason of 1997 Amendment in West
Bengal of 1894 Act a fiction is created. By reason of such fiction the
requisition would stand converted into acquisition with the issue of
notice under section 9(3A) of the 1894 Act, as amended in 1997 in West
Bengal. As soon section 9(3A) is resorted to, the possession, if continued
after requisition and not restored, shall be deemed to be a possession
revalidated under the Land Acquisition Act which then would be a
possession for acquisition on the issue of the notification/notice under
section 9(3A). Even though the award is not made before the expiry of
time limit provided under section 7A of the 1948 Act, the possession
then would become a possession under the 1894 Act attracting the
application of section 48 of that Act. But in a case where the notice
under section 4(1a) of 1948 Act is valid as on 31st March, 1997 on the
issue of notice under section 9(3B) the possession would be revalidated
under 1894 Act form the date of issue of the notice/notification under
section 4(1a) of 1948 Act. As soon the possession becomes a possession
under the 1894 Act attracting the application of section 48 of that Act
the limitation provided in section 11A of that Act would not be render
the acquisition invalid on its expiry. The moment notice under section
9(3A) or (3B) of 1894 Act is issued, the provisions of section 48 of that
Act becomes applicable. As such when the case comes under the
provisions of the said section the State Government has no authority to
withdraw. Therefore, expiry of limitation lapse of two years provided in
section 11A of 1894 Act, from 1th March, 1999 namely, the date of issue
of the notice under section 9(3A) of 1894 Act, will not be operative in a
case where possession as hereinbefore stated, has already been takes.
Thus, there is no scope for treating the proceeding as lapsed.”
(emphasis supplied)
51. In Sabitri Devi (supra), it has been further held that as soon Section 9(3A)
is resorted to, the possession, if continued after requisition and not restored,
shall be deemed to be a possession under the 1894 Act which then would be
a possession for acquisition on the issue of the notice under Section 9(3A).
However, where notice under Section 4(1a) of 19485 Act is valid as on
31.03.1997, on the issue of notice under Section 9(3B), the possession
would be revalidated under the 1894 Act from the date of issuance of notice
under Section 4(1a) of 1948 Act. It was further held that Sections 9(3A) and
9(3B) of 1894 Act are steps for acquisition under the 1894 Act. It was held
thus-
Page 21 of 27
“45. In cases where notice under section 9(3A) or (3B) of the 1894 Act
as amended 1997 Act, is not issued, whether the notice under section
4(1a) is serving or not on 31st March, 1997 by reason of lapse of 1948
Act not only the requisition but also the acquisition would lapse
irrespective of the principle once vested cannot be divested. Once a
temporary statute provides a particular manner, after the temporary
statute expires, the same cannot be revived by a fresh statute unless
expressly provided for a saving clause. Sections 9(3A) and (3B) of 1894
Act are steps for acquisition under 1894 Act creating legal fiction which
has to be interpreted having regard to the provisions of General Clauses
Act vis a vis a temporary statute.”
(emphasis supplied)
52. State of West Bengal preferred an appeal against the judgment delivered by
the co-ordinate bench in Sabitri Devi (supra). The said appeal, along with
the other three appeals, was assigned before the Full Bench. Three Hon’ble
Judges of this Court decided four appeals, the lead case being FMA 486 of
2007 (State of West Bengal vs. Sabita Mondal) which was reported at
2011(3) CHN (Cal) 555.
53. The Hon’ble Full Bench held that the effect of the Land Acquisition (West
Bengal Amendment) Act, 1997 which came into operation on the midnight
between March 31, 1997 and April 1, 1997 prevented all those notices
under Section 4(1a) issued after April 1, 1994 from being lapsed by giving
the scope of revival by way of a notice under Section 9(3B) of the 1997
Amendment Act if the award had not been passed within three years from
the date of publication of such notice which would otherwise lapse if the Act
of 1997 would not come into operation at the midnight of March 31, 1997.
54. It was further clarified that in respect of those notices under Section 4(1a)
which were issued prior to March 31, 1992 and in respect of which no
award had been passed by March 31, 1995, those notices had already
lapsed and by the 1997 Amendment Act, no provision has been made for
revival of those lapsed notices.
55. The Hon’ble Full Bench affirmed the order passed by the Hon’ble Single
Judge in Sabitri Devi (supra).
Page 22 of 27
56. In the case on hand, the possession of the land of the petitioner was taken
in exercise of the power of requisition under a temporary statute. The said
land has been utilised for a permanent purpose without initiating any
proceeding for acquisition of the same under the 1948 Act.
57. Article 300A of the Constitution of India states that no person can be
deprived of his property, save by authority of law. The power to acquire land
falls within the purview of eminent domain of the State and the Land
Acquisition Laws provide a complete mechanism for deprivation of property
of a person in accordance with law. Utilisation of a property without
payment of fair compensation to the land owner(s) is in violation of Article
300A of the Constitution of India. If the property of a citizen has been
utilised for a public purpose, State is obliged to pay fair compensation to
such land owner in accordance with law.
58. It is not the case of the respondent State that notice under Section 9(3A) has
been served upon the petitioner. In the meantime, the 1894 Act stood
repealed with the coming into force of the 2013 Act on and from 01.01.2014.
Thus, there is no further scope to issue a notice under Section 9(3A) of the
1894 Act after the 1894 Act stood repealed.
59. To the mind of this Court, the proceeding initiated under the 1948 Act stood
lapsed with the effacement of the said statute. No attempt was made to
revalidate the requisition for acquisition by issuing a notice under Section
9(3A) of the 1997 Amendment Act. This Court accordingly holds that the
authorities of the State are possessing the land in question forcibly and
without any authority of law. The land owners have been deprived of their
right to get fair compensation for their land.
60. The Hon’ble Supreme Court in State of W.B. v. Aziman Bibi, reported at
(2016) 15 SCC 710 noted that the land of the writ petitioners therein had
been utilised pursuant to a notification under Section 4 of the West Bengal
Land Development and Planning Act, 1984 followed by a declaration under
Section 6 of the said Act and also recorded the undisputed fact of the said
case that after taking over possession of the said land the same was utilised
Page 23 of 27
for public purpose without passing any award determining the
compensation to be paid to the land owners. The Hon’ble Supreme Court
after noticing that the land acquisition proceeding had lapsed directed the
State to take steps for notifying the acquisition once again and determine
compensation in accordance with law.
61. In Ganesh Samanta (supra) though notice under Section 4(1a) of the 1948
Act was issued but admittedly no award was published within three years
from the date of issuance of such notification. The Hon’ble Division Bench
held that the notice issued under Section 4(1a) of the 1948 Act stood lapsed,
the title which was vested with the State by operation of law under Section
4(1a) of the 1948 Act will not continue to remain with the State after the
State failed to publish the award under Section 7A of the said Act within the
statutory period. The Hon’ble Division Bench by placing reliance upon the
decision of the Special Bench in the case of Sabita Mondal (supra) held
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 with the direction passed by the learned Single Judge 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 2013 Act, the State could not have completed
the acquisition proceeding by following Section 9(3A) of the Land
Acquisition Act, which has since been repealed. The Hon’ble Division Bench
expressed the view that the State respondent was required to complete the
acquisition proceeding by following the relevant provision of the 2013 Act.
62. In MAT 1181 of 2019 in the case of State of West Bengal and ors. vs.
Mahadeb Khan and ors., which was delivered on 22.12.2023, the property
was requisitioned under Section 3 of the 1948 Act and possession of the
land was also taken over by the Government. Subsequently, a notice of
acquisition under Section 4(1a) of the 1948 Act was issued but no award
Page 24 of 27
was made within three years from the date of acquisition notice. A notice
under Section 9(3B) of the 1894 Act was issued by the Government but even
thereafter no award was made by the Collector and the land owners received
no compensation for their land which had been taken over and utilised by
the State Government for constructing a public road.
63. In that decision a submission was made that since acquisition proceeding
was not initiated under the 1894 Act, as per Section 24 of the 2013 Act, the
provisions of the 2013 Act would not apply to the facts of the said case. The
Hon’ble Division Bench after noticing the provisions of the 1948 Act held
that Section 24 of the 2013 Act basically is a saving section and saves
acquisition proceedings from lapsing to the extent indicated thereunder
nothing more nothing less. The Hon’ble Division Bench after noting that in
the facts of that case, the State having deprived the writ petitioners of their
property without following due process of law and without paying any
compensation – which is really an act of expropriation- the State cannot be
permitted to argue that the delay on the part of the writ petitioners in
approaching the Court will cause imposition of greater financial burden on
the State since in the meantime the 2013 Act has come into operation and
holds the field.
64. The Hon’ble Division Bench further held that had the State acted in
accordance with law could have avoided the additional financial burden, if
any, that may be foisted on it by reason of compensation being calculated in
terms of the 2013 Act. The Hon’ble Division Bench directed the Collector/
the competent authority to initiate proceedings for acquiring the land of the
writ petitioners therein under the provisions of the 2013 Act and to complete
the entire proceedings including payment of compensation within a specified
time frame.
65. Thus, the Hon’ble Division Bench in Mahadeb Khan (supra) held that even
though the notice under Section 4(1a) of the 1948 Act lapsed, the
Government could have revived the acquisition proceedings by serving
notice under Section 9(3A) of the 1894 Act. No time period was prescribed
Page 25 of 27
for service of such notices. However, that was not done during the lifetime of
the 1894 Act. That could not be done any further after January 1, 2014 i.e.,
date with effect from which the 1894 Act stood repealed.
66. The contention of the learned advocate for the State that even after repeal of
the 1984 Act, proceeding could continue under that Act was not accepted by
the Hon’ble Division Bench by placing reliance upon Section 24(1)(b) of the
2013 Act. It was held that such scenario is contemplated only under Section
24(1)(b) of the 2013 Act which is to the effect that in any case of land
acquisition proceedings initiated under the 1894 Act, where an award under
Section 11 of the said Act has been made, then such proceedings shall
continue as if that Act has not been repealed.
67. Thus, in Mahadeb Khan (supra) the Hon’ble Division Bench held that after
01.01.2014 notice under Section 9(3A) of the 1894 Act could not be issued
and after repeal of the 1894 Act and the proceedings under the repealed Act
could not continue except in cases falling under Section 24(1)(b) of the 2013
Act.
68. Mandodari Bhakat (supra) which considered the Full Bench decision of
Sabita Mondal (supra) was followed by the Hon’ble Division Bench in
Mahadeb Khan (supra).
69. In Mariam Ahmed (supra) notice under Section 4(1a) of the 1948 Act was
published. A notice under Section 9(3B) of the 1894 Act was issued. The
Hon’ble Division Bench after noting that in the facts of that case the
appropriate notice would have been a notice under Section 9(3A) and not
9(3B) observed that the notice issued under Section 9(3B) of the Land
Acquisition Act shall be deemed to be a notice under Section 9(3A) of the
said Act and the State was directed to pay compensation by taking the date
of notice under Section 9(3A) as the date of reference for the purpose of
determining the value of the land under the land Acquisition Act and,
thereafter, pass an award in favour of the land loser and pay the award
amount to the land loser.
Page 26 of 27
70. In Mariam Ahmed (supra) a notice under Section 4(1a) of the 1948 Act and
a notice under Section 9(3B) of the 1997 Amendment Act were issued.
71. In the case on hand neither any notice under Section 4(1a) of the 1948 Act
was issued prior to expiry of the 1948 Act nor any notice under the 9(3A) or
9(3B) were issued during the lifetime of the 1894 Act. Thus, no acquisition
proceeding under the 1894 Act could be said to have been initiated in the
case on hand. The decision in Mariam Ahmed (supra) being distinguishable
on facts cannot come to the aid of the State in the case on hand.
72. The property of the petitioner has been utilised and the State is not in a
position to return the said land to the petitioner.
73. It is now well settled that a person cannot be deprived of his property except
with due process of law. Since property has been utilised and the State is
not in a position to return the same to the land owner, the petitioners are
entitled to fair compensation.
74. For all the reasons as aforesaid the writ petition stands allowed. The
respondent authorities are directed to initiate proceedings for acquisition of
the land of the petitioners under the 2013 Act and complete the entire
proceedings including payment of compensation to the land
losers/petitioners as expeditiously as possible but positively within a period
of four months from the date of receipt of a server copy of this order.
75. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(HIRANMAY BHATTACHARYYA, J.)
Page 27 of 27
