ANIRUDDHA BOSE,J. - (1.) The applicant before us is the State of West Bengal. In this application, the State has prayed for relief to the following effect:- "Under the facts and circumstances stated above, the petitioner herein most respectfully prays that Your Lordships would graciously be pleased to modify and/or to clarify the judgment and order dated 21.08.2017 passed by the Hon'ble Justice Aniruddha Bose and the Hon'ble Justice Sankar Acharyya in F.M.A. 4805 of 2015 with M.A.T. No. 347 of 2016 in the interest of justice; And Pending consideration of this application, Your Lordships would graciously be pleased to pass an ad-interim order staying operation of the said judgment and order dated 21.08.2017 till disposal of this application; And Pass such further order or orders as Your Lordships may deem fit and proper."
(2.) The judgment and order which the State wants us to modify or clarify was delivered on 21st August, 2017, confirming the decision of a learned Single Judge of this Court directing the State to acquire 2 bighas 8 cottahs 3 chattaks and 38 square ft. land comprised in holding no. 5K 333 under the Police Station Kasba coming within the district of South 24-Parganas. Such prayer of the writ petitioners was allowed by the learned First Court and subsequently confirmed by the Division Bench of which one of us (Aniruddha Bose, J.) was a party. The circumstances under which the writ petition was brought were these. The writ petitioners, who are respondent nos. 1 to 4 in this proceeding claim to be owners of the said land. This claim has been successfully asserted by them in a civil suit, to which we shall refer to later in this judgment. The said land had been conveyed to third parties by the Kolkata Metropolitan Development Authority, a statutory body who is an agency of the State, without any valid acquisition process being undertaken to divest the owners thereof of the title and possession of the said land. The owners of the land had instituted a suit in the Court of learned Civil Judge (Senior Division) at Alipore, which was registered as Title Suit No. 142 of 1999 and subsequently renumbered as Title Suit No. 117 of 2005. The plaintiffs in that suit claimed declaration of their title in respect of the subject-land and certain ancillary reliefs. The said suit was dismissed by the Trial Court. One of the grounds for dismissal was that the land in question stood acquired by the State Government. The plaintiffs, however, were successful in their appeal before the First Appellate Court. The First Appellate Court examined the question as to whether there was valid acquisition of the land by the Government of West Bengal under Section 4 of the West Bengal Land (Requisition and Acquisition) Act, 1948 or not. We shall henceforth refer to that statute as ACT II of 1948. It is in dispute that the State's claim of acquisition was founded on the aforesaid statute.
(3.) In course of the proceeding before the Trial Court, an Advocate Survey Commissioner was appointed. The First Appellate Court had considered the report of the Survey Commissioner. We reproduce below a part of the judgment and order of the learned First Appellate Court, in which reference has been made to that report. We have also quoted this passage in the judgment of which review is asked for:- ".......So practically the defendants could establish as to which land has been acquired by the Government and whether the plaintiffs' portion i.e. the suit property has been actually acquired or not. As per Commissioner's report each plot has two parts, one part is included in Holding No. 333 and owned by the plaintiffs and the other parts on each of the Dags is included in Holding No. 333 and as such plaintiffs are related or concerned with the said portion of land which is outside the periphery or boundary of Holding No. K-333 and if the said portions were recorded in the names of the other persons and compensation has been given to them from the side of the Government then also the plaintiffs' title in the suit property cannot be evaporated. Practically the defence of both the defendants is misleading and confusing. The State of West Bengal is no doubt the custodian of the records of all the lands and they are the authority for acquisition and requisition of any land of the public. So, it is expected that being the welfare State or Democratic State the activities of the State should be fair and transparent and there should be any lacuna on transparency in the activities of the State in any manner and it is open to the State or its instrumentalities, who are suppose to be the embodiment of justice and reasonableness to be unjust, unfair and unreasonable even if an adversial litigation. In this case I should rely on the decision reported in 1973(3) SCC 489 at page 599 (Ramana v. International Airforce Authority). Thus being a welfare State the Government cannot take away the right of the people by hook or by crook, it must be done through legal process and State has the duty to give guarantee to the right of the citizen. A democratic Government means Government of the people, for the people and by the people. It does mean the anarchy of the masses. So it is expected that the right of the citizens of India guaranteed by the Constitution of India should be protected by the State otherwise there would be violation of Article 14 as well as Article 300A of Constitution of India which is at all expected from the Government. Initially the plaintiffs filed the suit for declaration and injunction and during pendency of the suit when the Investigation Commission was started it was detected that the vacant land was being covered by boundary wall and the Ld. Commissioner, as it appears from the Commissioner's report mentioned in his report that during his second visit he found that some construction was made though on earlier occasion he found the land in vacant position. However, the defendants denied everything. On the other hand, the plaintiffs that during pendency of the suit the defendant no. 9 has taken forcible possession violating the order of status quo and as such the plaintiffs are entitled to get the relief for recovery of possession also. In view of the above discussion in respect of the materials on record, I come to the conclusion that the suit of the plaintiffs should be decreed and the appeal be allowed and the judgment and decree passed by the Ld. Court below challenged in this appeal should be set aside entirely. In the result, the appeal succeeds. Memo of appeal has been sufficiently stamped. Hence, ORDERED that the appeal be and the same is hereby allowed on contest with cost. The judgment and decree dated 30.06.2011 passed by Ld. 4th Court, Civil Judge Senior Division, Alipore in Title Suit No. 117/05 is hereby set aside. The suit is decreed. The plaintiffs/appellants do get a decree of declaration of title and recovery of possession in respect of the suit land. The plaintiffs are also entitled to get the decree of mandatory injunction as prayed for. The defendants are permanently restrained from making any further construction on the suit land. The defendants are directed to vacate the suit land and to give khash possession to the plaintiffs within two months from this date, failing which the plaintiffs will have the liberty to execute the order in accordance with law. The appeal is thus disposed of.";