- (1.) The appellants/petitioners have preferred this appeal being aggrieved by the judgment and order dated 14.06.2006 passed by the learned single Judge in W. P. No. 13255 (w) of 2005 dismissing the petition.
(2.) The appellants/petitioner No. 1 is an association of persons who have challenged the Notification bearing No. 370/LA (SDJA) /13/4 /04-05 of dated 09/09/04 under Section (1) of Section 4 of the Land Acquisition Act, 1894 ('LA Act' for short) published in the Calcutta Gazette on 23.09.04 in respect of land in the Mouza (s) (1) THIKNIKATHA, J.L. No.74, (2) KAWAKHALI, J.L. No. 75, P.S. Siliguri Dist. Darjeeling, for acquisition of land for development of new township. It is the case of the appellants/writ petitioners that at the relevant time they were an unregistered association and that their members are the owners of plots of land which are proposed to be acquired by the respondent authorities and that majority of them belonged to Schedule Castes. According to them, some of the members of the appellants/petitioners are served with notice under sub-section (1) of Section 4 of the LA Act, 1894 (Act 1 of 1894) in respect of acquisition of land for the development of new township. But, most of the members have not been served with the said notice. It is contended by the appellants/writ petitioners that without considering the objections raised by the writ petitioner association and its members which is a statutory requirement under Section 5A of the LA Act, 1894 (Act 1 of 1894), respondents have proceeded to issue declaration under the purported Notification bearing No. 624/ LA (SJDA) / 13 /4 /04-05 of dated 24/12/2004 under sub-section (2) of Section 6 of the LA Act, 1894 (Act 1 of 1894) as published in the Calcutta Gazette on 30.12.2004 in respect of land in the Mouza (s) (1) THIKNIKATHA, J.L. No.74, (2) KAWAKHALI, J.L. No. 75, P.S. Siliguri Dist. Darjeeling. As the appellants/writ petitioners were aggrieved by the said notification, legal notice dated 10th May, 2005 was sent to the office of respondent no. 2 which was received on 3rd June, 2000. It is, therefore, contended that the said acquisition proceeding has been initiated in violation of the mandatory provisions of law and, therefore, deserves to be quashed and set aside. Affidavit-in-opposition came to be filed on behalf of the respondents. It is the case of the respondents that after the notices under Section 4(1) came to be published and served on the individual owner and that respondents had taken all possible attempts to serve individual notices to persons whose names and addresses are made available in the Records of Rights (R.O.R) and during local enquiry and that except for a few persons all most all the affected persons have been served with notice and the appellants/writ petitioner no.1 association as well as persons who are affected have filed their objection under Section 5A and, therefore, as per provisions of Section 54 of the LA Act, 1894 (Act 1 of 1894), an opportunity of hearing was given to the persons who have submitted objection against the acquisition of land within a period of 30 days from the date of publication of notification under Section 4 of the LA Act, 1894 (Act 1 of 1894). So far as the appellants/writ petitioner No. 1 Association is concerned, they have submitted their objection on 08.11.2004 and in addition to objection raised against the acquisition, demanded compensation at prevailing market price along with other statutory benefits. After completing the proceeding, the Land Acquisition Collector has proceeded with publication of declaration under Section 6 of the LA Act, 1894 (Act - 1 of 1894) being No. 624/LA dated 24.12.2004 which was published in the Kolkata Gazette on 30.12.2004 and in two dailies, viz., 'The Hindustan Times' and the Bengali daily 'The Ganasakti' on 17.09.2004. So, the substance of the said declaration was published in the notice board of local Panchayet and other offices for wide publicity. It is, therefore, contended that the acquisition proceedings were initiated after due compliance of the statutory requirements and, therefore, there is no merit in the writ petition and should be dismissed.
(3.) After going through the materials on record Learned single Judge found that Naboday Enterprises has filed objection under Section 5A of the LA Act, 1894 (Act -I of 1894) on September 8, 2004, i.e., after the expiry of the statutory period of 30 days and so also the second petitioner who filed her objection on December 20, 2004, whereas, the appropriate authority published the declaration under Section 6 on December 30, 2004 and, therefore, they cannot be heard in the matter. Learned Single Judge also found that the appellants/writ petitioners have been questioning the steps taken by the authorities by filing a petition on July 6, 2005 which has resulted in passing of the interim order which was enforced till the petition came to be filed. The learned single Judge found that the appellants/writ petitioner no. 1 is an unregistered association being not a juristic person would not be a person aggrieved, and as such it would not be entitled to file a writ petition espousing the cause of the affected persons and, therefore, the petition was not maintainable at the instance of the first petitioner. On merit, it is found that the contention of the appellants/writ petitioners that unless provisions of the West Bengal Town and Country (Planning & Development) Act, 1979 (hereinafter referred to as the Town Planning Act, 1979) Sections 16, 61, 73, 74 and 137 are first complied with, the respondents are not entitled or empowered to initiate any acquisition proceedings under the LA Act, 1894 (Act -I of 1894) and as no development plan has been notified, the development authority is not empowered to take possession of the land by initiating proceeding under the LA Act, 1894 (Act - I of 1894) and found favour with the contention of the respondents that the State Government had decided to initiate the acquisition proceedings for the professed public purpose of setting up a new township by engaging the development authority for the purpose, which is not questioned in this case. Acquisition of land under LA Act is within the domain of the State Government. Learned single Judge also found that only on the ground of delay in challenging the Section 4 Notification, it is sufficient to dismiss the writ petition. On examining that the State has complied with all the statutory requirements, learned single Judge found no merit in the contention of the appellants/writ petitioners and dismissed the writ petition. Mr. Sandip Bhattacharya, learned counsel appearing for the appellants/writ petitioners, submitted that on the ground of maintainability of the petition by the appellants/writ petitioner no. 1 that at the relevant time it was an unregistered association, it had every right to agitate the grievances of its members most of whom belonged to Scheduled Caste and has placed reliance on the decision of the Supreme Court rendered in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its assistant General Secretary on behalf of the Asson. Etc., vs. Union of India & Ors.,1981 AIR(SC) 290 and, therefore, the finding of the learned single Judge that the appellants/writ petitioner No. 1 had no locus standi to agitate grievances cannot be sustained. On merits it is contended that the subject 'land' came to be acquired by invoking the provisions of the LA Act, 1894 (Act 1 of 1894) could not have been acquired under the said LA Act, 1894(Act 1 of 1894) for the reason that it is governed by the Town Planning Act, 1979. It is contended that once the authorities have decided to proceed under the Town Planning Act, 1979 as can be seen from the published notice dated 16th December, 1992 in the official gazette wherein proposed development plan prepared by the Siliguri Jalpaiguri Development Authority for control of Development and use of land of Siliguri urban area, Jalpaiguri Urban Area and Naxalbari Urbanizing area came to be published and, therefore, the State having initiated steps under the Town Planning Act, 1979 which also enables the State to acquire land under Sections 36(2), 38(2) at planning stage and Sections 61(3), 70(3) at development scheme stage. It was further contended that these are deeming provisions similar to Sections 4 and 6 of the LA Act, 1894 (Act 1 of 1894). It is submitted that under the Town Planning Act, 1979, there are similar provisions like LA Act, 1894 (Act 1 of 1894) of taking possession and vesting powers under Section 66, 67 and 72 of the Town Planning Act, 1979 and, therefore, the State Government having initiated steps to notify a draft plan under the Town Planning Act, 1979 could not have resorted to with the provisions of LA Act, 1894 (Act 1 of 1894) for the proposed acquisition. In support of his contention learned counsel has cited the decision of the Supreme Court rendered in the case of Chairman, Indore Vikas Pradhikaran vs. M/s. Pure Industrial Cock & Chem. Ltd. & Ors.,2007 AIR(SCW) 437. It is, therefore, the contention of the learned counsel for the appellants/writ petitioners that the State having failed to initiate the legal proceedings under the Town Planning Act, 1979, the acquisition proceedings ought to have been quashed and set aside.;