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IN THE HIGH COURT OF CALCUTTA
Arindam Sinha, J.
Sri Amar Nath Paul & Ors. - Petitioners
Vs.
The State of West Bengal & Ors. - Respondents
WP 15618 (W) of 2010
Decided On : 12-05-2016
LAND ACQUISITION - NOTICE UNDER SECTION 3(2) OF THE WEST BENGAL LAND (REQUISITION AND ACQUISITION) ACT, 1948 - NON-ISSUANCE - EFFECT - WRIT PETITION - MAINTAINABILITY - DISPUTED QUESTION OF FACT - EXAMINATION OF WITNESSES - POWER OF HIGH COURT.
Fact of the Case:
Petitioners challenged the requisition and subsequent acquisition of their land under the West Bengal Land (Requisition and Acquisition) Act, 1948, alleging that no notice under Section 3(2) of the Act was served on them. The State, in its supplementary affidavit, claimed that a payment notice was accepted by the petitioner no. 1, evidenced by his signature in the Register.
Finding of the Court:
1. The Court found that the petitioners' names were recorded in the Rent Rolls, which were prior to the drawing up of the Record of Rights. The objection that the petitioners were not entitled to be served with a notice under Section 3(2) of the Act since their names were not recorded in the Record of Rights was raised at the final hearing and not accepted by the Court. 2. The Court also rejected the State's argument that the petitioners were guilty of laches and undue delay in approaching the Court, as their case was based on the allegation that no notice was ever issued. 3. The Court relied on the decision in Sailendra Nath Pal & Ors. vs. State of West Bengal & Ors. (2010) to hold that the provisions of Section 3(2) of the Act and Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948 were not complied with, rendering the requisition and subsequent acquisition invalid.
Issues: 1. Whether the petitioners were entitled to be served with a notice under Section 3(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948, despite their names not being recorded in the Record of Rights? 2. Whether the petitioners were guilty of laches and undue delay in approaching the Court with their challenge? 3. Whether the State had complied with the provisions of Section 3(2) of the Act and Rule 3 of the Rules in issuing the requisition and acquiring the petitioners' land?
Ratio Decidendi: 1. The Court held that the petitioners were entitled to be served with a notice under Section 3(2) of the Act, as their names were recorded in the Rent Rolls, which were prior to the drawing up of the Record of Rights. 2. The Court rejected the State's argument of laches and undue delay, as the petitioners' case was based on the allegation that no notice was ever issued. 3. The Court found that the State had not complied with the provisions of Section 3(2) of the Act and Rule 3 of the Rules in issuing the requisition and acquiring the petitioners' land, rendering the requisition and subsequent acquisition invalid.
Final Decision: The writ petition was allowed, and the Court declared the requisition and subsequent acquisition of the petitioners' land to be invalid. The petitioners were entitled to approach the appropriate Authority for rectification of records.
This writ petition was filed on 22nd July, 2010. It came up for final hearing on 27th January, 2016. Mr. Chakraborty, learned advocate had appeared on behalf of the petitioners and made his submissions. On behalf of the State Mr. Lahiri, learned advocate had sought for and obtained leave to file a supplementary affidavit. The submissions made on that date as appearing in order dated 27th January, 2016 are reproduced below :-
“Mr. Chakraborty, learned advocate appearing on behalf of the petitioners submits the land of his clients was sought to be initially required under the West Bengal Land (Requisition and Acquisition) Act, 1948 and the Rules framed thereunder and thereafter acquired. His clients have challenged the requisition and consequently the acquisition on the ground no notice under Section 3(2) of the said Act was served on the owners of the land in question. Specific averments to that effect were made in paragraphs 8 and 10 of the writ petition. In response in the affidavit-in-opposition filed on behalf of the State, the dates of taking possession of the several plots and issuance of general notice for the entire mouza have been alleged. Mr. Chakraborty relied on two judgments – one delivered by a Division Bench of this Court and the other by the Supreme Court.
In Sailendra Nath Pal & Ors. vs. State of West Bengal & Ors. reported in 2010(2) CHN (Cal) 315 a Division Bench of this Court had struck down the order made under sub-section (1) of Section 3 of the said Act on the omission of issuance and service of notice under Section 3(2) in the prescribed manner. Mr. Chakraborty then relied on the decision in the case of Raghbir Singh Sehrawat vs. State of Haryana & Ors. reported in [2012(109) AIC 200(S.C)] in which the Supreme Court in paragraph 16 thereof held that the High Court was in error in summarily dismissing the writ petition on the claim of acquisition made and possession had there being no evidence produced by the respondents to show that actual possession of the land had been taken after giving notice at a time when at least an independent witness was present.
The notice of case requiring the respondents to produce evidence regarding them having taken possession, as alleged by the State in its affidavit, had not been given in the petition. In the circumstances, the State is given leave to file a supplementary affidavit, a copy of which must be made over to the learned advocate for the petitioners by 12th February, 2016. The supplementary affidavit must disclose evidence regarding possession taken by the State. Since it has been submitted a copy of the affidavit-in-opposition was served on the petitioners two days back, the petitioners will be entitled to use a reply both to the affidavit-in-opposition as well as supplementary affidavit, also to be filed on the adjourned date, advance copy thereof served.”
2. A supplementary affidavit was filed. On the basis of statements made in the supplementary affidavit submissions were made on behalf of the State as well as the petitioners. Those submissions were recorded in order dated 29th March, 2016. By that order the Court had also required the petitioner no. 1 to file an affidavit regarding submissions made in the said supplementary affidavit, since the affidavit-in-opposition filed by his brother cannot be relied upon as best evidence. The submissions, as appear in order dated 29th March, 2016, are also reproduced herein :-
“Record of submissions made by Mr. Chakraborty, learned advocate appearing on behalf of the petitioners was made in order dated 27th January, 2016. Pursuant thereto a supplementary affidavit has been filed on behalf of the State. In paragraph 4 of the said affidavit, inter alia, payment notice with due signature of Amar Nath Paul has been referred to as disclosed to be collective Annexure-‘E’. The said disclosure is of two pages being pages15 and 16 of the supplementary affidavit. Page 16 bears, as submitted on behalf of the State, the sign
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