HEMLATA BASU Vs. STATE OF WEST BENGAL
LAWS(CAL)-1970-9-18
HIGH COURT OF CALCUTTA
Decided on September 23,1970

HEMLATA BASU Appellant
VERSUS
STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) THIS is an appeal arising out of an order and judgment of B. C. Mitra, J. dated 15th July, 1969.
(2.) IN the application under Article 226 of the Constitution, the petitioner challenged the legality and validity of notice under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894, in respect of certain plots of land intended to be acquired by the Government. The learned Judge came to the conclusion, following his own decision in respect of other similar matters, that both the notice under Section 4 and the declaration under Section 6 of the Land Acquisition Act were invalid. The learned Judge also came to the finding that declaration under Section 6 did not specify the area of the land with proper description so as to identify it. On this finding the petitioner was entitled to have her Rule made absolute but the learned Judge came to the finding that because of her conduct the petitioner has disentitled herself for any relief under Article 226 of the Constitution. What had happened in this case was that the petitioner did not receive any notice under Section 9 of the Land Acquisition Act. The Government stated that the Govt. was not aware of the interest of the petitioner. However, on coming to know of the proceedings, the petitioner filed a claim before the collector on the 20th December, 1968 under Section 9 of the said Act. On 31st December, 1968, an award was made which was communicated to the petitioner under Section 12 (2) of the said Act on 3rd January, 1969. Thereupon the petitioner moved this application under. Article 226 of the Constitution and obtained a Rule nisi on the 5th February, 1969. In the said petition in paragraph 18 thereof the petitioner craved leave to file claim or reference under Section 18 of the Land Acquisition act otherwise her claim or references might become barred by limitation. On the 6th February, 1969, the petitioner made an application of objection and asked for reference to the Court under Section 18 of the Land Acquisition Act, 1894. It has to be remembered that under Section 18 (2) such application has to be made within six weeks from the receipt of the notice of the Collector under Section 12 or within six months of the award of the Collector whichever is earlier. The learned Judge has upon those facts come to the finding that the petitioner has adopted the acquisition proceeding and as such is not entitled to challenge the said proceedings in an application under Article 226 of the Constitution. Reliance was placed by the respondents before the learned Judge and the learned Judge has referred to a Bench decis'on of this Court in the case of (1) Tincori Das v. Land Acquisition Collector, alipore and others, 70 CWN 1100. There Sinha, C. J. sitting with my Lord came to the conclusion that the acquisition proceeding was not invalid, because of colourable exercise of the power. The Court also came to the conclusion that there was a public purpose in the industrial development of the village Gopalpur. In addition, to that the Court came to the conclusion that the petitioner in that case had applied for a reference under Section 18 of the Land Acquisition Act and thereafter made an application to this Court under Article 226 of the Constitution. The said facts would appear from the judgment of the learned Chief Justice at page 1102 of the report. It was observed in the said judgment at page 1107 that there was no explanation as to why the appellant had claimed compensation and was pursuing the quantum of it and had not ceased to do so. Upon those facts in the said case the Court was of the opinion that the petitioner had adopted the land acquisition proceedings and as such the petitioner was not entitled to any relief in an application under Article 226 of the Constitution.
(3.) RELIEF under Article 226 of the Constitution is discretionary in the sense that the Court must take into consideration the conduct of the petitioner but the Courts are not guided by any rules of technicality nor are they guided by any plea of estoppel or limitation as such. The principle upon which a Court refused to grant a relief is the similar to though not identical with, the exercise of discretion by the Court of Chancery. For this reliance may be placed upon the judgment of the Supreme Court in the case of (2) N. S. R. T. Corpn. v. B. R. M. Service, air (1969) SC 329 at 335. If it; is evident from the conduct of the petitioner that the petitioner has unequivocally accepted one remedy and has pursued the claim for benefit under that remedy the petitioner would not normally be permitted to challenge the proceedings under which he got the previous remedy. The correct position seems to be that nobody should be permitted to take an inconsistent position. But it is not possible in this case, in our opinion, to come to the conclusion that the petitioner was taking an inconsistent position. There is no inconsistency in the position of a person who say that the proceedings under Land Acquisition Act is invalid in law but if they are held to be valid he is entitled to obtain lawful compensation under the said Act, In this case it has to be remembered that the petitioner before moving this Court frankly stated all these facts in the petition. The petitioner further stated that she moved this Court before making the application under Sect on 18 of the Land Acquisition act. Furthermore, unlike the facts in the case of (1) Tincori Das v. and Acquisition Collector, reported in 70 CWN 1100 there was no undue delay in making this application. In the petition under Article 228 of the Constitution the petitioner has stated that the petitioner was reserving the right to make an application under Section 18 of the Act so as to prevent the claim being barred by limitation. The petitioner in this case has not accepted any money as yet. In that view of the matter, we are of opinion that it is not possible to say that the petitioner has unequivocally expressed an intention to adopt the land acquisition proceedings. It is not also possible to say that the petitioner has taken an inconsistent attitude. The conduct of the petitioner in this case has not been such as to disentitle her to any relief under Article 226 of the Constitution It has to be remembered that the facts of this case are distinctly different from the facts of the aforesaid case. In that case, as noted above, the application under section 18 had been made before making an application to this Court. Furthermore, as the learned Chief Justice has observed that there was no explanation as to why that application was made in spite of the fact that the petitioner was pursuing his remedy under Article 226 of the Constitution. Therefore, in this case, in our view, it is not possible to say that the conduct of the petitioner has been such as to disentitle her to any relief under Article 226 of the Constitution.;


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