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2011 Supreme(Cal) 505
High Court of Calcutta
J.K. Biswas, J.
Salil Kumar Daw - Appellant
Versus
State Of West Bengal – Respondent
W.P. No. 4502 (W) of 2003
Decided on : Apr 06, 2011
Bidyut Banerji, Shila Sarkar, Arnab Roy
The failure to make the requisite Section 6 declaration within the statutory period renders the Section 4 notification lapsed by operation of law.
Headnote:
LAND ACQUISITION ACT, 1894 - SECTION 4, 5A, 6 - Fresh Section 6 declaration - Lapse of Section 4 notification - Petitioners challenged the notice issued under Section 5A of the Land Acquisition Act, 1894, arguing that the requisite Section 6 declaration had not been made or published before the notice was issued, rendering the notice without jurisdiction.
Fact of the Case:
The petitioners filed an Article 226 petition challenging a notice issued under Section 5A of the Land Acquisition Act, 1894, for hearing of objections to the acquisition of their land. They contended that the requisite Section 6 declaration had not been made or published before the notice was issued, rendering the notice without jurisdiction.
Finding of the Court:
The court found that the Section 6 declaration was published after the expiration of three years from the date of the order directing the Collector to issue a fresh Section 6 declaration. The court held that the Section 4 notification had lapsed by operation of law due to the failure to make the requisite Section 6 declaration within the statutory period.
Issues: Whether the Section 5A notice issued by the Collector was without jurisdiction due to the failure to make the requisite Section 6 declaration within the statutory period.
Ratio Decidendi: The court held that the Section 4 notification had lapsed by operation of law due to the failure to make the requisite Section 6 declaration within the statutory period. The court relied on the provisions of Section 6 of the Land Acquisition Act, 1894, which requires the State Government to make the Section 6 declaration before the expiration of three years from the date of publication of the Section 4 notification.
Final Decision: The court allowed the petition and set aside the impugned Section 5A notice, as well as all subsequent steps including the Section 6 declaration dated April 22, 2003. The court declared that the proceedings initiated by publishing the Section 4 notification had lapsed by operation of law.
1. THE petitioners in this Article 226 petition dated March 17, 2003 are questioning a notice dated March 13, 2003 (at p.48) issued by the Collector, Murshidabad under Section 5A of the Land Acquisition Act, 1894.
2. BY an order dated March 19, 2003 the respondents were directed
"not to give any further effect to the notice dated 13.3.2003 until further orders to be passed by this Court."
Stating that the lands in connection wherewith the notice dated March 13, 2003 was issued were likely to be needed for setting up of Murshidabad-Berhampore Settlement Office Headquarters, a notification under Section 4 of the Land Acquisition Act, 1894 was published in the Calcutta Gazette on July 3, 1980.
3. QUESTIONING the Section 6 declaration published in the Calcutta Gazette on July 19, 1982 (at p.43) CO. No. 13378(W) of 1986 was filed under Article 226. By an order dated July 13,1988 the Collector was directed to decide the Section 5A objection afresh.
4. QUESTIONING the award on the grounds that it was made without making the requisite Section 6 declaration CO. No. 3497(W) of 1990 was filed before this Court under Article 226. By an order dated April 12, 1999 the award was set aside.
By the order dated April 12, 1999 the following directions were given :
"I am of the view that after considering objection under Section 5A the concerned Collector should have issued declaration under Section 6 afresh even for technical formalities since this Court desires the same was to be done so in the aforesaid manner. Therefore, I direct the concerned Collector to communicate the result of the hearing taken place considering the objection of the petitioners under Section 5A. After communicating his decision the concerned Collector will be at liberty to proceed from the stage of Section 6 of the said Act in accordance with law. The petitioners would also be at liberty to agitate all the points, if so advised. Thereafter the Land Acquisition Collector will finalise this order. This writ petition is allowed. There will be no order as to costs. Interim order of possession stands confirmed until this acquisition proceeding reached its finality either dropping or by passing lawful award."
5. THE petitioners filed a suit (the plaint verified on April 28, 2000) in the Court of Civil Judge (Senior Division) at Berhampore, Murshidabad against the State and the Land Acquisition Collector seeking a declaration that the State was occupying the property as a tenant and a decree for rent arrears and other reliefs.
6. IN Para 13 of the plaint they stated that after communicating the result of the Section 5 hearing the Collector did not publish the requisite fresh Section 6 declaration, and contended that, as a result, the Section 4 notification lapsed.
In Para 18 of the written statement (verified on June 14, 2001) the defendants in the suit the State and the Collector asserted that the order of this Court dated April 12, 1999 in CO. No. 3497(W) of 1990 was complied with. However, no case was stated that in terms of the order a fresh Section 6 declaration was published within the statutory period.
7. IN Para 10 of the opposition dated December 4, 2009 filed by the Collector to this petition it has been stated that in terms of the order of this Court dated April 12, 1999 the requisite Section 6 declaration dated April 22, 2003 was published in the Calcutta Gazette on May 23, 2003.
8. IT is, therefore, evident that before March 13, 2003 when the impugned notice was issued for hearing of Section 5A objection the requisite Section 6 declaration had neither been made nor published. The question is whether the declaration dated April 22, 2003 published on May 23, 2003 is lawful.
There is nothing to show that after April 12, 1999 the Collector was prevented by another order of any Court from hearing the Section 5A objection and the State Government from making the requisite declaration under Section 6.
9. IN view of the provisions of Section 6 and the fact that the Se
