DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT
CALCUTTA
CONSTITUTIONAL WRIT
JURISDICTION
APPELLATE SIDE
W.P.A. No. of 2022;
In the matter of:
An application under Article 226 of the Constitution of
India;
And
In
the matter of:
Shri Dipak Kar, Son
of Late Jagadish Chandra Kar, aged about 57 years, presently residing at
CF-334, Sector – I, Bidhan Nagar, Police Station – Bidhannagar East, Kolkata –
700064, District – North 24 Parganas, Mobile :…………;
………Petitioner.
-Versus-
1)
The State of West
Bengal, service through the Secretary, Land & Land Revenue Department,
having its Office at Nabanna, 325, Sarat Chatterjee Road, Shibpur, Howrah –
711102.
2)
The Collector, 24 Parganas ( South ), Alipore, Kolkata –
700027.
3)
Additional Land Acquisition Officer, South 24 Parganas,
Office of the Collector, South 24 Parganas, Land Acquisition Department, New
Treasury Building, 5th Floor, Alipore, Kolkata – 700027.
4)
Additional District Magistrate ( Land Acquisition ), South
24 Parganas, Office of the Collector, South 24 Parganas, Land Acquisition
Department, New Treasury Building, 5th Floor, Alipore, Kolkata –
700027.
5)
Block Land &
Land Reform Officer, for Kasba, Kolkata, South 24 Parganas, presently having
it’s Office at premises being no. 5, S.N. Banerjee Road, Kolkata – 700013.
6)
The Special Land
Acquisition Officer, South 24 Parganas, Land Acquisition Department, New
Treasury Building, 5th Floor, Alipore, Kolkata – 700027.
……..Respondents.
To
The Hon’ble Prakash
Shrivastava, Chief Justice and His Companion Justices of the said Hon’ble
Court.
The humble petition of the petitioner above named most respectfully;
SHEWETH:
1.
That the petitioner
is a citizen of India and has been residing at the address given in the cause
title of this application.
2.
That your petitioner purchased more or less 7 ( Seven )
Cottahas of Land situated and lying at Mouza Kasba, comprised in R.S. Khatian
No. 685 and 801 appertaining to R.S. Dag no. 4006, District Collectorate Touzi
number 145, Revenue Survey No. 233, J.L. No. 13, under Police Station Kasba,
presently known as Premises being no. 8, Rajdanga Road, Kolkata – 700107, under
Ward no. 107 of Kolkata Municipal Corporation, vide Deed of Conveyance Dated
25-01-1977, from one Shri Tarak Nath Ghosh, registered in Book no. I, Volume
no. 9, Pages 49 to 60, Being number 234 for the year 1977, registered in the
office of the Sub-Registrar of Alipore, District – 24 Parganas.
Leave may be granted to produce a copy of the said
Deed of Conveyance, if required, at the time of hearing this petition.
3.
That said Shri Tarak Nath Ghosh, had mutated his name in
the Municipal Authority. Your petitioner, too have mutated his name in the
Kolkata Municipal Corporation.
Photocopies of the KMC Tax, standing in the name of
the Petitioner is annexed herewith, and marked as Annexure “P-1”
4.
That the concerned office recently refused to accept rent
in respect of entire property of your petitioner. On being asked it was
disclosed that part of his property has been acquired by the concerned
authority.
Photocopy of an application for Khazna ( Rent ) &
Khazna Dakhila (Rent receipt) are collectively annexed herewith and marked as Annexure
– “P-2”
5.
That in the meantime, an application under Right to
Information Act’ 2005, was made by one Ranjit Ghosal, of 18/1A, Gobinda Bose
Lane, Kolkata – 700025, for getting information about acquisition. A reply
dated 02-08-2019, has been given by concerned respondent, wherefrom it is
revealed that an area of 0.106 acres, CS/RS Plot number 4006, Southern of Mouza
– Kaba, J.L. number 13, P.S. Kasba, has been acquired vide Case Number LAII/3
of 77-78, Notification Number 8392 L.A.P.W. dated 01-12-1983.
Photocopy of the said Reply under RTI is annexed
herewith and marked as Annexure – “P-3”
6.
That previously a Writ Petition being CR 13237-38 (W) of
1979, was filed before the Hon’ble High Court at Calcutta, challenging an Order
in connection with LA Case number LAII/3, dated 14-09-1979, issued by the
Collector under Act II of 1948, Alipore, 24 Parganas.
7.
By order dated 14-09-2000, passed by the Hon’ble Justice
D.K. Seth, observed that the Writ Petition is infractuous. The relevant portion
is quoted below “The land was requisitioned under Act 2 of 1948, which was
extended from time to timer till 30th March’ 1997. Thereafter, the
Act was not extended by reason thereof Act 2 of 1948 had lapsed with effect
from 1st April, 1997 an amendment has been brought in the Land
Acquisition Act to insert Sub-Section (3A) and (3B) after Sub-Section (3) of
Section 9 of the Land Acquisition Act. Unless any notification under
Sub-Section (1A) of Section 4 of Act 2 of 1948 is issued or a notice under
Sub-Sections (3A) and (3B) of Section 9 of the Land Acquisition Act is issued
the land cannot be said vested in the Government. But this question is relevant
unless such notices are issued. Even if, such notices are issued, in that event,
the same would form a fresh cause of action which cannot be decided within the
scope and ambit of this writ petition. Therefore, the petition has become
infructuous and is accordingly dismissed. This order will not prevent the
petitioner from establishing his right to recover or retain possession unless a
notification under Section 4 (1A) Act 2 of 1948 is already issued before 31st
March, 1997 or a notice under Sub-Sections (3A) and (3B) of Section 9 is issued
thereafter or a fresh notice under Section 4 of the Land Acquisition Act is
issued. It will be open to the petitioner to challenge any such notification or
notice after issued, if he is so advised. This order will not affect the right
of the petitioner in any manner whatsoever.”
Photocopy of the Order dated 14-09-2000, passed by
the Hon’ble High Court Calcutta, in Writ Petition being CR 13237-38 (W) of 1979,
is annexed herewith and marked as Annexure – “P-4”
8. That the said Order
dated 14-09-2000, passed by this Hon’ble Court, clearly says that publication
of notice under Section 4(1a) of Act II of 1948, is required. Section 5 of the
said Act also states some obligation cast on the respondent authorities.
Noncompliance of Section 5 makes operation of Section 4(1a) of the said Act
invalid. The said Order also said that if the said notices are issued, the same
would form a fresh cause of action. Since during hearing the respondents failed
to produce any document in proof of compliance of Section 4(1a) and Section 5
of the said Act, it should be accepted that the State did not proceed with the
matter or the property in question was released from requisition.
9.
That in absence of any notice in the light of the said
observation Land acquisition case number LAII/3, dated 14-09-1979, has no
application. Thus the concerned respondent cannot claim the portion of your
petitioner’s land as acquired.
10. That your petitioner
made his representation to the concerned respondents through his written Letter
dated 10-12-2020, which has been duly submitted on 17-12-2020, to the concerned
respondents, though yield no result.
Photocopy of the said representation is annexed
herewith and marked as Annexure – “P-5”
11. That the said Writ Petition being CR 13237-38 (W) of 1979,
has clearly stated that the LA Case being LAII / 3, dated 14-09-1979, has no
application unless any notification under Sub Section (1A) of Section 4 of Act
II of 1948, is issued or a notice under Sub Sections (3A) and (3B) of Section 9
of the Land Acquisition Act is issued. The petitioner has not been served any
notice nor the concerned respondent has notified a fresh. As such denial of
acceptance of rent in respect of the properties of the petitioner is illegal
and dehors the principle led down by
the Hon’ble Court.
12. That the Petitioner being aggrieved by the
action of the concerned respondent filed a Writ Petition being WPA/1992/2021
before this Hon’ble Court. By Order dated 22-03-2022, the Hon’ble Court was
pleased to direct the respondent no. 6, to consider And disposed of the
representation dated 10-12-2020, submitted by the Petitioner within a period of
2 (two) months, from the date of communication of the said order on merits
after giving reasonable opportunity of hearing to all the interested parties
including the petitioner, in accordance with Law.
Photocopy of the said Order dated 22-03-2022, passed
by the Hon’ble Court is annexed herewith and marked as Annexure “P-6”
13. That after compliance
of Section 4(1a) of the said Act, the Respondents have a duty to serve notice
upon the interested persons. Unless Section 5 is Complied, Award cannot be
passed. In the instant case no notice was ever served upon the Land Owner. The
Respondents are put to strict proof in showing compliance of Section 3 and 5 of
the said Act. Neither the petitioner nor his vendor was ever aware of the
acquisition proceeding initiated by the concerned respondent.
14. That the said
Respondent no. 6, having been informed about the said Order, ultimately on
25-05-2022, took-up hearing of the Writ Petitioner. A reasoned order has been
passed on that day which is full of controversies and illegalities, which are
detailed below;
a)
It is observed, “As per our official records it appears
that possession of only 10.6 decimal of Southern portion out of the total area
of 25 decimal of the suit plot was delivered to Requiring Body, and
subsequently, notice under Section 4(1a) was published”. It means the
respondent authorities complied with Section 3 of the said Act which asks for
service of order under Section 3(1) upon the Owner of the Land. The respondent
never communicated the said Order. Therefore unless Section 3 is complied with
Section 4 (1a) cannot be followed.
b)
It is also stated in the reasoned Order, “It also
transpires from the official records that the Award for the suit plot RS 4006
of mouza Kasba JL no. 13 was declared in favour of the Writ Petitioner. Dipak
Kar S/o. Jagadish as one of the awardees of the suit RS Plot no. 4006 and the
same was deposited in the Court of Ld. L.A. Judge Alipore on 16.02.2006”. It
therefore suggests that award was declared but unless Section 3 is complied
with the State respondents cannot proceed further and therefore even if the
Award is declared that is a nullity.
c)
It is also stated in the said reasoned order, “it is thus
pertinent to state here that since the award id declared in favour of the
petitioner, it naturally thus leads to the inference that the writ
petitioner Dipak Kar was duly present at
the time of award hearing and that he was quite aware of the acquisition
proceedings”. In law inference can be drawn only when a concrete proof of the
action or inaction of the concerned respondents is proved beyond any doubt.
Since the concerned respondents could not file any proof of Section 3 and 5 of
the said Act, all subsequent actions therefore stands inoperative and invalid.
d)
That the Respondent Authorities specially the concerned
Land Acquisition Officer could not mention and/or provide and/or submit a scrap
of paper in support of compliance of Section 3 and 5 of the said Act.
Photocopy of the said order dated
25/05/2022, passed by the Special Land Acquisition Officer South 24 Parganas is
annexed herewith and marked as Annexure “P-7”
15. That the Petitioner
has never been parted with his possession, he is enjoying the entire property,
which he obtain by virtue of the said Deed of Conveyance in the year 1977. This
means the respondents have practically no purpose in the alleged acquired
property as has been partially acquired.
16. Even if, for the
sake of argument, it is accepted that on 01-12-1983 notice under Section 4(1a)
was served upon the Petitioner, then on considering uninterrupted possession of
the petitioner of the land, the law of Adverse Possession will decide the
issue, since for the government, the time limit is 30 (thirty) years. The State
in such circumstance cannot claim and/or take possession of the land of the
Petitioner.
17. That the petitioner
mutated his name before the Kolkata Municipal Corporation. Had there been any
valid acquisition, the Kolkata Municipal Corporation would have been informed
accordingly.
18. That the Petitioner states that the concerned respondent
cannot proceed by violating the observation made by the Hon’ble Court, where
under the entire vesting initiated through LA case II/3, dated 14-09-1979, has
been set aside.
19. That the Petitioner states that while the entire LA Case
has no existence by virtue of the Order of the Hon’ble Court, the concerned
respondent cannot bank upon the same. As such the respondents are found to
accept rent in respect of the entire property of the petitioner.
20. That the petitioner states and submits that the State
under the constitution is the guardian of its citizens. A democratic and
progressive Government always looks after the well beings of its citizens.
21. That being aggrieved by and dissatisfied with the impugned
action being Order dated 25.05.2022, passed by the Special Land Acquisition
Officer, South 24 Parganas, and/or inaction on the part of the respondents, the
petitioner begs to move before Your Lordship on the following amongst other -
GROUNDS
I.
For that the said Writ Petition being CR 13237-38 (W) of 1979, has
clearly stated that the LA Case being LAII / 3, dated 14-09-1979, has no
application unless any notification under Sub Section (1A) of Section 4 of Act
II of 1948, is issued or a notice under Sub Sections (3A) and (3B) of Section 9
of the Land Acquisition Act is issued. The petitioner has not been served any
notice nor the concerned respondent has notified a fresh. As such denial of
acceptance of rent in respect of the properties of the petitioner is illegal
and dehors the principle led down by
the Hon’ble Court;
II.
For that after compliance of Section 4(1a) of the said
Act, the Respondents have a duty to serve notice upon the interested persons.
Unless Section 5 is Complied, Award cannot be passed. In the instant case no
notice was ever served upon the Land Owner. The Respondents are put to strict
proof in showing compliance of Section 3 and 5 of the said Act. Neither the
petitioner nor his vendor was ever aware of the acquisition proceeding
initiated by the concerned respondent;
III.
For that the impugned Order dated 25.05.2022, observed, “As
per our official records it appears that possession of only 10.6 decimal of
Southern portion out of the total area of 25 decimal of the suit plot was
delivered to Requiring Body, and subsequently, notice under Section 4(1a) was
published”. It means the respondent authorities complied with Section 3 of the
said Act which asks for service of order under Section 3(1) upon the Owner of
the Land. The respondent never communicated the said Order. Therefore unless
Section 3 is complied with Section 4 (1a) cannot be followed;
IV.
For that it is also stated in the said impugned reasoned
Order, “It also transpires from the official records that the Award for the
suit plot RS 4006 of mouza Kasba JL no. 13 was declared in favour of the Writ
Petitioner. Dipak Kar S/o. Jagadish as one of the awardees of the suit RS Plot
no. 4006 and the same was deposited in the Court of Ld. L.A. Judge Alipore on
16.02.2006”. It therefore suggests that award was declared but unless Section 3
is complied with the State respondents cannot proceed further and therefore
even if the Award is declared that is a nullity;
V.
For that it is also stated in the said reasoned order, “it
is thus pertinent to state here that since the award id declared in favour of
the petitioner, it naturally thus leads to the inference that the writ
petitioner Dipak Kar was duly present at
the time of award hearing and that he was quite aware of the acquisition
proceedings”. In law inference can be drawn only when a concrete proof of the
action or inaction of the concerned respondents is proved beyond any doubt.
Since the concerned respondents could not file any proof of Section 3 and 5 of
the said Act, all subsequent actions therefore stands inoperative and invalid;
VI.
For that the Respondent Authorities specially the
concerned Land Acquisition Officer could not mention and/or provide and/or
submit a scrap of paper in support of compliance of Section 3 and 5 of the said
Act;
VII.
For that the Petitioner has never been parted with his
possession, he is enjoying the entire property, which he obtain by virtue of
the said Deed of Conveyance executed in the year 1977. This means the
respondents have practically no purpose in the alleged acquired property as has
been partially acquired;
VIII.
For that even if, for the sake of argument, it is accepted
that on 01-12-1983 notice under Section 4(1a) was served upon the Petitioner,
then on considering uninterrupted possession of the petitioner of the land, the
law of Adverse Possession will decide the issue, since for the government, the
time limit is 30 (thirty) years. The State in such circumstance cannot claim
and/or take possession of the land of the Petitioner;
IX.
For that the petitioner mutated his names before the
Kolkata Municipal Corporation. Had there been any valid acquisition, the
Kolkata Municipal Corporation would have been informed accordingly;
X.
For that the concerned
respondent cannot proceed by violating the observation made by the Hon’ble
Court, where under the entire vesting initiated through LA case II/3, dated
14-09-1979, has been set aside.
XI.
For that while the
entire concerned LA Case has no existence by virtue of the Order of the Hon’ble
Court, the concerned respondent cannot bank upon the same. As such the
respondents are found to accept rent in respect of the entire property of the
petitioner.
XII.
For that, the State
under the constitution is the guardian of its citizens. A democratic and
progressive Government always looks after the well beings of its citizens.
22. That your petitioner has no alternative suitable remedy
elsewhere and the reliefs as prayed for, if are granted would be complete for
your petitioner.
23. That on the selfsame cause of action your petitioner has
not moved any other writ petition.
24. This application is made bonafide and for the ends of
justice.
In the premises aforesaid your petitioner most humbly
prays for the following orders:-
a)
A writ in the nature
of Mandamus commanding the respondents and/or their men and agents to set aside
the impugned order dated 25-05-2022, passed by the Special Land Acquisition
Officer, South 24 Parganas;
b)
A writ in the nature
of Mandamus commanding the respondents and/or their men and agents to accept rent in
respect of the property of the petitioner, more fully described in paragraph
number. 2, herein above;
c)
A writ in the nature
of Mandamus commanding the respondents and/or their men and agents to set aside
the acquisition proceeding under LA Case no. II/3, dated 14-09-1979, and
thereby to set aside the order of vesting of the portion of the property of the
petitioner;
d)
A writ in the nature
of Certiorari asking the respondent authorities to produce records related to
the instant case before this Hon’ble Court for proper adjudication;
e)
Rule NISI in terms
of prayer (a), (b) & (c) herein above;
f)
Cost;
g)
To pass such other
or further order orders as Your Lordship may deem fit and proper;
And your petitioner,
as in duty bound, shall ever pray.
AFFIDAVIT
I, Shri Dipak Kar, Son of Late Jagadish Chandra Kar, aged
about 57 years, by faith Hindu, by Occupation Service, presently residing at
CF-334, Sector – I, Bidhan Nagar, Police Station – Bidhannagar East, Kolkata –
700064, District – North 24 Parganas, do hereby solemnly affirm and say as
follows:
1. That I am the petitioner of this
application and I am well acquainted with the facts and circumstances of the
case.
2.
That the statements
made in paragraph No. 1, 2, 3, 4, 10, & 12, are true to my knowledge and
those made in paragraphs 5, 6, 7, 8, &
11, are true to my information derived from the records of the case and rest
paragraphs are my respectful submission before this Hon’ble Court.
Prepared in my
office The
deponent is known to me
Advocate Clerk to: Mr. Advocate
Solemnly affirmed
before me
on this the day of July, 2022.
I certify that all annexures
are legible.
Advocate.
COMMISSIONER
DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Sri
Dipak Kar.
………..Petitioner
-Versus-
The
State of West Bengal & Ors.
……Respondents
WRIT PETITION
MR.
ASHOK KUMAR SINGH
Advocate
Bar
Association, Room No.15,
High
Court, Calcutta.
(M)
9883070666.
Email
: aksinghadvocate@rediffmail.com
DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT
CALCUTTA
CONSTITUTIONAL WRIT
JURISDICTION
APPELLATE SIDE
W.P.A. No.
of 2022;
In the matter of:
An application under Article 226 of the Constitution of
India;
And
Subject matter relating to-
Under Group I , Head , of the Classification List;
Cause title
Sri Dipak Kar.
………..Petitioner
-Versus-
The State of West Bengal & Ors.
……Respondents
Advocate-on-Record
MR. ASHOK KUMAR SINGH.
Advocate
Bar Association Room No.15,
High Court, Calcutta.
Mobile Number : 9883070666,
Email : aksinghadvocate@rediffmail.com
DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT
CALCUTTA
CONSTITUTIONAL WRIT
JURISDICTION
APPELLATE SIDE
W.P.A. No.
of 2022;
In the matter of:
An application under Article 226 of the Constitution of
India;
And
In the matter of:
Sri Dipak Kar.
………..Petitioner
-Versus-
The State of West Bengal & Ors.
……Respondents
Index
|
Sl. No. |
Description of
Documents |
Annexure |
Page No. |
|
1. |
Writ Petition; |
|
|
|
2. |
KMC Tax, standing in the names of the Petitioner; |
“P-1” |
|
|
3. |
Application for Khazna (Rent) & Khazna Dakhila (Rent receipt); |
“P-2” |
|
|
4. |
Reply under RTI; |
“P-3” |
|
|
5. |
Order dated 14-09-2000, in CR 13237-38 (W) of 1979; |
“P-4” |
|
|
6. |
Representation
dated 10-12-2020; |
“P-5” |
|
|
7. |
Order dated
22-03-2022, passed by the Hon’ble Court; |
“P-6” |
|
|
8. |
Order dated
25-05-2022, passed by the Special Land Acquisition Officer; |
“P-7” |
|
DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT
CALCUTTA
CONSTITUTIONAL WRIT
JURISDICTION
APPELLATE SIDE
W.P.A. No. of 2022;
In the matter of:
An application under Article 226 of the Constitution of
India;
And
In the matter of:
Sri Dipak Kar.
………..Petitioner
-Versus-
The State of West Bengal & Ors.
……Respondents
SYNOPSIS
Award is although
claiming to have been declared, the concern respondent has not complied with
the provisions of Law under Act II of 1948. With such claim, the petitioner
illegally being deprived of his property.
LIST OF DATES
14/09/1979 Purported notice in L.A.II/3, pasted on
the wall of the premises of your petitioner
1979 Writ
Petition being no. C.R. 13237 -38 (W) of 1979, placed before the Hon’ble Court
14/09/2000 Hon’ble Court passed Order in C.R.
13237 -38 (W) of 1979
02/08/2019 Reply under RTI by Additional Land
Acquisition Officer, South 24 Parganas
2019 Prayer for Khazna (Rent) to
the B.L.& L.R.O.
12/10/2020 B.L. & L.R.O. did not take Khazna
(Rent) for entire property
17/12/2020 Representation to the concerned
Respondents
19/01/2021 Writ Petition being WPA 1999 of 2021
22/03/2022 WPA 1999 of 2021 Disposed
12/05/2022 Hearing notice issued by the Special
Land Acquisition Officer, South 24 Parganas
25/05/2022 Impugned reasoned Order passed by the
Special Land Acquisition Officer, South 24 Parganas
DISTRICT : South 24
Parganas.
IN THE HIGH COURT AT
CALCUTTA
CONSTITUTIONAL WRIT
JURISDICTION
APPELLATE SIDE
W.P.A. No. of 2022;
In the matter of:
An application under Article 226 of the Constitution of
India;
And
In the matter of:
Sri Dipak Kar.
………..Petitioner
-Versus-
The State of West Bengal & Ors.
……Respondents
LIST OF DATES
14/09/1979 Purported notice in L.A.II/3, pasted on
the wall of the premises of your petitioner
1979 Writ
Petition being no. C.R. 13237 -38 (W) of 1979, placed before the Hon’ble Court
14/09/2000 Hon’ble Court passed Order in C.R.
13237 -38 (W) of 1979
02/08/2019 Reply under RTI by Additional Land
Acquisition Officer, South 24 Parganas
2019 Prayer for Khazna (Rent) to
the B.L.& L.R.O.
12/10/2020 B.L. & L.R.O. did not take Khazna
(Rent) for entire property
17/12/2020 Representation to the concerned
Respondents
19/01/2021 Writ Petition being WPA 1999 of 2021
22/03/2022 WPA 1999 of 2021 Disposed
12/05/2022 Hearing notice issued by the Special
Land Acquisition Officer, South 24 Parganas
25/05/2022 Impugned reasoned Order passed by the
Special Land Acquisition Officer, South 24 Parganas
POINTS OF LAW
Whether noncompliance of Section 3 and 5 can validate a
requisition process ?
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