The Court held that the petitioners were entitled to compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as the State respondents had failed to consider the record of rights published in the petitioners' names and the retention of portions of the plots by them.

JUDGMENT

Suvra Ghosh, J. - The writ petitioners have assailed the order passed by the Special Land Acquisition Officer, Burdwan on 16th July, 2009 rejecting the representation submitted by the petitioners before the authority.

2. The petitioners claim to be recorded owners of the plots in question having one third share therein along with the proforma respondent and submit that though land measuring about 84.19 acres in the plots in question was utilised by the State respondents for the purpose of construction of fly over communicating NH-2 and G.T. Road sometime in the year 1979, no compensation has been paid to the petitioners despite several requests made by them.

3. The petitioners claim compensation in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by setting aside the order impugned passed on 16th July, 2009.

4. It is submitted on behalf of the petitioners that portions of the plots in question including surface and sub-soil rights were vested in the State under sections 4/5 of the West Bengal Estates Acquisition Act, 1953 as well as in terms of section 29 of the Act vide notification published on 4th November, 1954. The record of rights issued in favour of the predecessors of the petitioners suggests that their names were recorded in respect of the plots in question under the West Bengal Estates Acquisition Act subsequent to vesting, thereby suggesting that the plots were allowed to be retained by them. The recordings in the record of rights have already been acknowledged in the preliminary enquiry report on North Muslia Colliery given by the Assistant Settlement Officer, Asansol.

5. In L.A. cases initiated by the State respondents in 1963-64, 1965-66, 1970-71 for acquisition of portions of the plots owned by the predecessors of the petitioners, compensation was paid to the predecessors upon completion of the proceedings, the entire exercise being done after the notification of 1954. The fly over appears to have been constructed on the portion of land owned by the petitioners by a notification issued under section 3(1) of the West Bengal (Requisition and Acquisition) Act, 1948 on 25th July, 1974. The plots in question were requisitioned by the Government and subsequently utilised for construction of the fly over. This suggests that though the sub-soil right of the plots in question was vested in the State, the petitioners/their predecessors continued to have right, title and interest in respect of the surface land.

6. The order impugned is silent regarding the record of rights published in the names of the petitioners/their predecessors and retention of portions of the plots by them. There is no whisper in the said order as to under what provision of law notice under the Act of 1948 was issued despite the respondents claiming the plots to have vested in the State earlier. Since it is evident that the fly over has been constructed on the plots owned by the petitioners, it is incumbent upon the State respondents to consider the case of the petitioners and determine and pay compensation to them for the same.

7. Per contra, learned counsel for the respondents has submitted that the plots in question comprised in North Muslia Colliery including sub-soil rights therein held by the predecessors-in-interest of the petitioners and proforma respondent vested in the State free from all encumbrances under section 5 of the West Bengal Estates Acquisition Act, 1953. The said predecessors became direct tenants under the State Government from the date of vesting in terms of section 29 of the Act of 1953. The predecessor-in-interest of the petitioners was granted mining lease in respect of the plots in question which were part and parcel of the surface area held by the North Muslia Colliery, the lease being terminated by the Government and possession of the land taken over by an order passed on 16th November 2005. The entire land having been resumed by the State in terms