An occupier who surrenders his right to compensation under the Act 1894 cannot claim compensation or alternative accommodation from the State-respondents.

JUDGMENT :

APURBA SINHA RAY, J.

1. The writ petitioner/appellant says that he was a lawful occupier of a godown at 128/1, G.T. Road, Salkia, Howrah by virtue of two registered deeds of lease. While the petitioner was in actual physical possession of the said godown, on February 09, 2010 he was asked to vacate the godown by 5/7 persons and from them he came to know that a purported acquisition proceeding had taken place before the Special Law Acquisition Officer as the property was requisitioned for ‘Salkia Flyover Project’ at the instance of Howrah Improvement Trust (HIT in short). Subsequently, the petitioner was forcibly evicted from the said godown by the H.I.T. after confiscating the goods.

2. The writ petitioner challenged such action by filing a writ petition being W.P. No. 4800(W) of 2010 on the ground that no notice under Section 9 of the Land Acquisition Act, 1894 was served on him though he was a lawful occupier of the said godown. He came to know about such acquisition proceeding only when his godown was attempted to be taken over and not before that. However, during the pendency of the proceeding the petitioner came to learn that Hon’ble Supreme Court has directed the H.I.T. to rehabilitate all the evictees, and accordingly, he prayed for such benefit to be bestowed upon him, by filing an affidavit and such prayer was not opposed by the H.I.T. by filing any affidavit-in-opposition. According to the Learned Single Judge, the lease deed of the petitioner was not registered, and the petitioner did not object to the notices under Section 4 and 6 of the Land Acquisition Act, 1894, and there can, according to the Learned Judge, be no notice to those whose occupation is not known. Not a single word was uttered in the said judgment regarding non-service of notice to the writ petitioner under Section 9(3) of the said Act of 1894. Hence the present appeal.

3. Learned Senior Advocate, Sri Saptansu Basu, appearing for the appellant, has placed his arguments mainly on four points.

4. In the first place, notice under Section 9(3) to an occupier of the land is a mandatory one and admittedly no notice under Section 9(3) has been served upon the petitioner who was in actual physical possession of the said acquired land measuring about 10 cottahs, equivalent to 7200 sq.ft. approximately and was also having all necessary licenses to carry on business from the said godown.

5. According to learned Senior Advocate, the Act of 1894 is a self contained Code and therefore, each and every stage of acquisition has been elaborated with specific provisions. Similarly, Section 9 with its various sub-sections has specifically made provisions for the occupier of the acquired land and their participation in the proceeding have been deliberately caused to be involved but this legislative wisdom was not respected in this case.

6. Secondly, a tenant/lessee is entitled to compensation under the Act 1894 and lack of apportionment of compensation makes the proceedings liable to be quashed. In support of such contention, learned counsel has relied upon case laws reported in Abul Hashem vs. Balahari Mondal, AIR 1952 Cal 380, State of West Bengal and Others vs. Asiatic Investment Ltd. And Others, AIR 2010 Cal 60 and Biswamitra Shukla and Others vs. L.A. Collector, Burdwan and Others, 74 CWN 349. According to the petitioner, he did not get any opportunity to pray for apportionment for the fault of the respondents, and as such the acquisition proceeding is liable to be quashed.

7. Thirdly, a new point touching the main issues in the writ petition can be taken in the Affidavit-in-Reply. In this regard, the learned counsel has placed reliance on Mohananda Dutta and Co. (P) Ltd. vs. Uma Charan Law and Others, 68 CWN 179.

8. Fourthly, the petitioner is entitled to benefit of the scheme of Rehabilitation of Howrah Improvement Trust framed to rehabilitate the displaced evictees for the said Salkia Flyover Project.

9. Learned Senior Counsel of the appellant argued t