- (1.) This writ application being No. 494 (W) of 2003 was initially filed by two petitioners viz. Achyutnanda Mishra and his mother Shyama Sundari Mishra with prayers including prayer (f) of the writ application an interim order to the effect of injunction restraining the respondents from constructing any building for any other purpose and/or transferring, alienating the lands in disputes to any other body and further restraining them from damaging standing jute crops of petitioners. An interim order in terms of prayer (f) was passed and subsequently extended. State respondents No. 1, 4 and 7 filed affidavit in opposition dated 28.4.2003 against the writ application. An affidavit in reply was filed by petitioners on 7.5.2003. During pendency of the writ application the petitioners filed a contempt application being No. W.P.C.R.C. 6222 (W) of 2004 which has been dismissed as infructuous on 12.9.2012. C.A.N. 3199 of 2007 was filed for addition of party to legal representatives of petitioner No. 2 Shyama Sundari Mishra due to her death and said prayer was allowed on 22.8.2007. Since no one appeared for the petitioner on 16.7.2013 this writ application No. 494 (W) of 2003 was dismissed for default. Subsequently, petitioners filed C.A.N. 11818 of 2013 for recalling the said dismissal order and restoration of the writ application. On 4.4.2014 said C.A.N. 11818 of 2013 has been allowed and the writ application has been restored to the file. In said order dated 4.4.2014 order has been passed for hearing this W.P. No. 494 (W) of 2003 along with C.A.N. 3621 of 2012. Accordingly, both the matters have been heard in presence of learned counsels for both the parties. Be it mentioned that on 4.4.2012 the petitioners have filed C.A.N. 3621 of 2012 for passing appropriate order directing the respondents to declare award for the acquired property upon initiation of fresh proceeding under the Land Acquisition Act of 1894 and/or relinquish the excess land from acquisition and restore back the ownership of the lands measuring 29 cottahs (21000 Sq.ft.) in plot No. 353 of mouja Garh Moyna with the petitioner No. 1 upon extinguishment of lease.
(2.) In these two litigations, matters of requisition and acquisition of 1.660 acres of land in plot Nos. 423 to 426, 353 to 355, 357 to 359 and 407 of mouja Garh Moyna under P.S. Moyna of the District East Midnapore for construction of Prajabarh Bhagwanpur Arankiarana Public Road in connection with L.A. Case No. 117 of 1977-78 are involved. In the writ application W.P. 494 (W) of 2003 petitioners have made substantive prayers for derequisition and delivery back the possession of the land in question in their favour and/or withdrawal and cancellation of the order of acquisition of the land in question in L.A. Case No. 117 of 1977-78 and/or denotify the lands found excess after completion of the project.
(3.) Some undisputed facts involved in these two matters as reveals from materials on record and arguments of learned counsels are mentioned hereunder:- (A) Land in question was requisitioned for construction of public road viz. Prajabarh Bhagwanpur Road and Notification was published under Section 3 (1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (in short Act- II of 1948). L.A. Case No. 117 of 1977-78 was initiated for giving effect to the project by way of acquiring that land together with other lands by Public Works Roads Department. (B) Accordingly, possession of that land was taken by Government on 4.2.1983. (C) 80% ad hoc compensation for the land in question was paid to the petitioners on 30.4.1985 with assurance to pay residue at the time of final payment for such acquisition. (D) Construction of the road has been completed. (E) Some requisitioned land was not utilised for construction of that road. (F) Notice under Section 4 (1a) of the Act- II was published acquiring the requisitioned 20.915 acres land including the entire land in question of these two cases in the Calcutta Gazette on 24.5.1996. (G) Out of the land in question unused 21000 Sq.ft. land of disputed plot No. 353 has been given under occupation of petitioner No. 1 against payment since 1997. Petitioners have raised controversy regarding validity of the notice under Section 4 (1a) a of The West Bengal Land (Requisition and acquisition) Act 1948 (in short Act- II of 1948) published in connection with the land in question of these matters. According to learned senior Advocate for the petitioners said notice has lost its life when Act- II of 1948 came to an end on expiry of 31.3.1997 by operation of law. He has drawn my attention to Section 7 A of ActII of 1948 which was introduced in the Act by way of Amendment by West Bengal Act XXV of 1996 with effect from 1.4.1994 wherein a mandate on the collector had been imposed for making an award under Sub-Section 2 of Section 7 within a period of three years from the date of publication of the notice in the official gazette under Sub-Section (1a) of Section 4 with an alarm that if such award is not made within the period as aforesaid the said notice shall lapse. He has submitted that such a notice was published on 24.5.1996 and before expiry of three years the Act- II of 1948 came to an end with effect from 31.3.1997 and consequently, said notice was lapsed. He has further argued that without issuing notice afresh, acquisition, if any, in respect of the land in question cannot have any legal value because such award is based on lapsed notice. In course of his arguments learned senior counsel for the petitioners cited two rulings the case of Mandadori Bhakat Smt. Vs. The State of West Bengal, 2013 AIR(Cal) 1 and State of West Bengal Vs. Sabita Mandal, 2012 AIR(Cal) 47. Learned senior counsel for the petitioners have also claimed that since the notice under Section 4 (1a) of the Act- II of 1948 becomes lapsed, the land in question of these two matters may be released from requisition under Section 6 of that Act. He has further submitted that at least the unutilised land of the requisitioned land may be derequisitioned lawfully and the title of the petitioners to that property is to be acknowledged. On the other hand, learned Additional G.P. for the state has argued that Act- II of 1948 was a temporary enactment and it was given life by extension time to time but not beyond 31.3.1997. He has drawn my attention to the mother enactment Land Acquisition Act 1894 in which West Bengal Amendment Act 1997 has been incorporated. He has drawn my attention to the provisions of Section 9 (3A) and Section 9 (3B) of the Land Acquisition Act 1894 (West Bengal State Amendment). He has also submitted that the land in question was duly requisitioned and 80% ad hoc compensation was paid to the petitioners after taking possession over that land for the public purpose of construction of road. He has also argued that the notice under Section 4 (1a) of Act- II of 1948 was duly published on 24.5.1996 acquiring 20.915 acres land including the plots of land in question of the present two matters. After such acquisition of requisitioned property under Act- II of 1948, the said Act was not extended beyond 31.3.1997 but legal provisions for disposal of such matters and settlement of matters relating to compensation, State Amendment has been introduced in Land Acquisition Act (in short Act- I of 1894). His further arguments is that since the Act- II of 1948 came to an end before expiry of three years from the date of publication of notice under Section 4 (1a) and Act- II of 1948 , the clog of Section 7 A cannot affect the validity of the said notice under Section 4 (1a) of Act- II of 1948 in view of the provisions 9 (3B) of the Land Acquisition Act 1894 (West Bengal Amendment). He has also argued that the ratio of the cited cases of this Hon'ble Court cannot be applied in the instant matters. He has distinguished the reported cases submitting that in the instant case, during the valid period of notice under Section 4 (1a) of Act- II of 1948, West Bengal Amendment in Land Acquisition Act was introduced inserting the provisions of Section 9 (3A) and Section 9 (3B) of the Land Acquisition Act 1894. Further arguments advanced on behalf of the state respondent is that subsequent to such acquisition under Section 4 (1a) of Act- II of 1948, award has been prepared by the collector but not published in connection with the lands in question of the instant matters although compensation money has been kept in abeyance awaiting decision of this Hon'ble Court.;