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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Hiranmay Bhattacharyya

WPA 15687 of 2025

Champabati Bera & Ors.

VS.

The State of West Bengal & Ors.

For the Petitioner : Mr. Uttam Kumar Bhattacharyya

….. advocate

For the State : Mr. Wasim Ahmed

Mr. Khairul Alam …. advocates

Reserved on : 09.03.2026

Judgment on : 06.05.2026

Hiranmay Bhattacharyya, J.:-

1. Petitioner has prayed for a direction upon the respondent authorities to

initiate an acquisition proceeding afresh in terms of the order of the Special

Land Acquisition Officer, Paschim Medinipur, dated May 18, 2018 under the

Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (hereinafter “the Act”), and to set

aside the Memo dated March 18, 2020 issued by the Superintendent

Engineer State Highway Planning Circle, Public Works (Roads Directorate),

Government of West Bengal.

2. Petitioner claims to be the recorded owner of RS plot no. 558 corresponding

to LR Plot no. 558 within Mouza Bural, JL No. 388 under Police Station

Sabong in the District of Paschim Medinipur. Several plots of land including

the aforesaid plots of the petitioner were requisitioned under Section 3(1) of

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the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of

1948) (for short “the 1948 Act”) for construction of Sabong-Mohar ODR by

initiating a proceeding being L.A. Case No. 255 of 1975-1976 as per the

proposal received from Superintending Engineer Road Planning Circle.

Possession of the plots of land have been taken over and utilised.

3. Petitioner alleges that no notification under Section 4(1a) of the 1948 Act

has been published for acquisition of the said plot of land. No award has

been passed and compensation in respect of the aforesaid plots has also not

been paid to the petitioners till date.

4. Petitioner submitted an application on 15.10.2004 requesting the

authorities to pay compensation to the petitioner. Alleging inaction on the

part of the respondent authorities, petitioner filed a writ petition being WPA

12924 of 2017 which was disposed of by a co-ordinate bench by directing

the Special Land Acquisition Officer, Paschim Medinipur being the 5

th

respondent herein to consider the representation of the petitioners and to

dispose of the same by passing a speaking order after giving an opportunity

of being heard.

5. Pursuant to the said order, the 5

th

respondent passed an order dated May

18, 2018 requesting the Requiring Body to take necessary steps and arrange

to fulfil the claim of the petitioner for his Raiyati Land so requisitioned for

the purpose of Sabong-Mohar ODR.

6. Subsequently, the Superintendent Engineer State Highway Circle being the

8

th

respondent herein issued a Memo dated 18.03.2020 requesting the

Chairperson, District Land Purchase Committee & District Magistrate

Paschim Medinipur being the 3

rd

respondent herein to submit the land

acquisition estimate as per the direct purchase policy authenticated by the

competent authority for payment of compensation to the petitioner.

7. Mr. Bhattacharya, learned advocate for the petitioner contended that the

property of the petitioner was requisitioned and thereafter no step was taken

by the respondent authorities during the lifetime of the 1948 Act for

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acquisition of the same by resorting to the provisions of Section 4(1a) of the

1948 Act. He further contended that the authorities also did not take any

steps to acquire the said property by taking recourse to the provisions of

Section 9(3A) of the Land Acquisition (West Bengal Amendment) Act 1997.

He contended that in the meantime the Land Acquisition Act 1894 (for short

“the 1894 Act”) stood repealed with the coming into force of the 2013 Act on

and from 01.01.2014. He, therefore, submitted that since the properties of

the petitioner have been utilised by the State, compensation in respect

therefor have to be paid to the petitioner by initiating an appropriate

proceeding under the 2013 Act. In support of such cont ention he placed

reliance upon the decision of the Hon’ble Division Bench in the case of

State of West Bengal vs. Ganesh Samanta reported at (2014) Supreme

(Online) (Cal) 2; Mandodori Bhakat v. State of W.B., reported at (2013) 1

CHN (Cal) 444; the Full Bench judgment in the case of State of West

Bengal vs. Sabita Mondal reported at (2011) 3 CHN Cal 555 ; and an

unreported decision of the Hon’ble Division Bench delivered on 22.12.2023

in MAT 1181 of 2019 in the case of State of West Bengal vs. Mahadev

Khan.

8. Mr. Ahmed, learned senior advocate appearing for the State raised an

objection against maintainability of this writ petition on the ground of

inordinate delay. He contended that the possession of the land in question

was handed over to the Requiring Body during the years 1978-79. He

contended that the petitioners, in spite of being aware of violation of the

rights did not approach the Court. He contended that the instant application

under Article 226 of the Constitution of India cannot be entertained on the

ground of inordinate delay and laches. In support of such contention he

placed reliance upon the decision of the Hon’ble Supreme Court in the case

of Chairman, U.P.Jal Nigam & Anr vs Jaswant Singh & Anr. reported at

AIR 2007 SUPREME COURT 924 . He also placed reliance upon the

decision of the Hon’ble Supreme Court in the case of Rabindra Nath Bose

and Ors vs Union of India reported at (1970) (SCR) (2) 697 in support of

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his contention that the Court cannot entertain a writ petition after a lapse of

several years.

9. Mr. Ahmed contended that the 2013 Act cannot be applied retrospectively to

acquisition initiated and possession taken and handed over long prior to the

said Act coming into force. He contended that the 2013 Act repealed the

1894 Act prospectively and Section 24 applies only to proceedings under the

1894 Act and the same cannot be invoked in a proceeding initiated under

the 1948 Act. Mr. Ahmed places strong reliance upon an unreported

judgment of the Hon’ble Division Bench delivered on 02.02.2026 in a batch

of appeals the lead case being MAT 187 of 2018 in the case of Mariam

Ahmed and another vs. The State of West Bengal and ors. in support of

his contention that the provisions of 2013 Act cannot be attracted to the

case on hand as the acquisition proceeding was initiated under Act II of

1948 and not under the 1894 Act.

10. In reply, the learned advocate appearing for the petitioner places reliance

upon the decision of the Hon’ble Supreme Court in the case of Vidya Devi

vs. State of Himachal Pradesh and ors. reported at (2020) 2 SCC 569;

Sukh Dutt Ratra v. State of H.P., reported at (2022) 7 SCC 508; and

Tukaram Kana Joshi & Ors. Thr.Poa Holder vs M.I.D.C. & Ors reported

at (2013) 1 SCC 353, in support of his contention that the plea of delay

cannot be raised to negate the claim for compensation in land acquisition

cases.

11. Heard the learned advocates for the parties and perused the materials

placed.

12. The following facts are not in dispute:

(i) RS Plot no. 558(P) measuring area of 0.56 acres including other

lands of Mouza Bural, JL No. 388 under Police Station Sabong was

requisitioned under Section 3(1) of the 1948 Act.

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(ii) Possession of the aforesaid plots of land have been taken over and

delivered over to the Requiring Body on 22.02.1978 including other

lands.

(iii) Notification under Section 4(1a) of the 1948 Act has not been

published in the Calcutta Gazettee for acquisition of the aforesaid

land.

13. The Special Land Acquisition Officer in his order dated 18.05.2018 upon

verification of the case record being LA Case No. 255 of 1975-76 and after

hearing the petitioner recorded a factual finding that the lands in question

namely RS Plot no. 558(P) with area of 0.56 acres have been requisitioned

and possession of the land has been taken over and handed over to the

Requiring Body and the petitioner is entitled to have compensation for his

Raiyati land. After returning the aforesaid factual finding, the 5

th

respondent

observed that since both the 1948 Act and 1894 Act have been repealed,

such authority is not in a position to pay compensation to the writ

petitioner. Accordingly, the 5

th

respondent requested the Requiring Body to

take suitable necessary steps and arrange to fulfil the claim of the petitioner

for his Raiyati land. It was further recorded in the said order that the

Requiring Body has not placed any fund for giving compensation to the writ

petitioner over the said land.

14. Since the learned Senior Advocate for the State raised an objection as to the

entertainability of this writ petition on the ground of alleged delay and

laches, this Court proposes to deal with such objection at the threshold.

15. Article 300A of the Constitution of India states that no person can be

deprived of his property, save by the authority of law. It means that a person

cannot be deprived of his property merely by an executive fiat, without any

specific legal authority. It is now well settled that the right to property is not

a fundamental right protected under Part III of the Constitution of India but

it remains a valuable constitutional right.

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16. In Tukaram Kana Joshi (supra), the functionaries of the State took over

possession of the lands of the appellants therein without any sanction of

law. State took shelter under the doctrine of delay and laches as grounds for

dismissal of the writ petition.

17. The Hon’ble Supreme Court after noticing that there are a few authorities

that lay down that delay and laches debar a citizen from seeking remedy

under Article 226 or 32 of the Constitution even if his fundamental right has

been violated, held that delay and laches is one of the facets to deny exercise

of discretion. It was further held that if there is continuity of cause of action

or the whole thing shocks the judicial conscience, then the Court should

exercise the discretion more so, when no third party interest is involved. It

was held that discretion must be exercised judiciously and reasonably and

in the event the claim made by the applicant is legally sustainable, delay

should be condoned. When substantial justice and technical considerations

are pitted against each other, the cause of substantial justice deserves to be

preferred, for the other side cannot claim to have a vested right in the

injustice being done.

18. The Hon’ble Supreme Court held thus-

“11. There are authorities which state that delay and laches extinguish

the right to put forth a claim. Most of these authorities pertain to service

jurisprudence, grant of compensation for a wrong done to them decades

ago, recovery of statutory dues, claim for educational facilities and

other categories of similar cases, etc. Though, it is true that there are a

few authorities that lay down that delay and laches debar a citizen

from seeking remedy, even if his fundamental right has been violated,

under Article 32 or 226 of the Constitution, the case at hand deals with

a different scenario altogether. The functionaries of the State took over

possession of the land belonging to the appellants without any sanction

of law. The appellants had asked repeatedly for grant of the benefit of

compensation. The State must either comply with the procedure laid

down for acquisition, or requisition, or any other permissible statutory

mode. There is a distinction, a true and concrete distinction, between

the principle of “eminent domain” and “police power” of the State. Under

certain circumstances, the police power of the State may be used

temporarily, to take possession of property but the present case clearly

shows that neither of the said powers have been exercised. A question

then arises with respect to the authority or power under which the State

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entered upon the land. It is evident that the act of the State amounts to

encroachment, in exercise of “absolute power” which in commo n

parlance is also called abuse of power or use of muscle power. To

further clarify this position, it must be noted that the authorities have

treated the landowner as a “subject” of medieval India, but not as a

“citizen” under our Constitution.

12. The State, especially a welfare State which is governed by the rule

of law, cannot arrogate itself to a status beyond one that is provided by

the Constitution. Our Constitution is an organic and flexible one. Delay

and laches is adopted as a mode of discretion to decline exercise of

jurisdiction to grant relief. There is another facet. The Court is required

to exercise judicial discretion. The said discretion is dependent on facts

and circumstances of the cases. Delay and laches is one of the facets to

deny exercise of discretion. It is not an absolute impediment. There can

be mitigating factors, continuity of cause action, etc. That apart, if the

whole thing shocks the judicial conscience, then the Court should

exercise the discretion more so, when no third-party interest is involved.

Thus analysed, the petition is not hit by the doctrine of delay and

laches as the same is not a constitutional limitation, the cause of action

is continuous and further the situation certainly shocks judicial

conscience.

13. The question of condonation of delay is one of discretion and has to

be decided on the basis of the facts of the case at hand, as the same

vary from case to case. It will depend upon what the breach of

fundamental right and the remedy claimed are and when and how the

delay arose. It is not that there is any period of limitation for the courts

to exercise their powers under Article 226, nor is it that there can never

be a case where the courts cannot interfere in a matter, after the

passage of a certain length of time. There may be a case where the

demand for justice is so compelling, that the High Court would be

inclined to interfere in spite of delay. Ultimately, it would be a matter

within the discretion of the Court and such discretion, must be exercised

fairly and justly so as to promote justice and not to defeat it. The

validity of the party's defence must be tried upon principles

substantially equitable. (Vide P.S. Sadasivaswamy v. State of

T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271]

, State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251]

and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2

SCC (L&S) 119] )

14. No hard-and-fast rule can be laid down as to when the High Court

should refuse to exercise its jurisdiction in favour of a party who moves

it after considerable delay and is otherwise guilty of laches. Discretion

must be exercised judiciously and reasonably. In the event that the

claim made by the applicant is legally sustainable, delay should be

condoned. In other words, where circumstances justifying the conduct

exist, the illegality which is manifest, cannot be sustained on the sole

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ground of laches. When substantial justice and technical considerations

are pitted against each other, the cause of substantial justice deserves

to be preferred, for the other side cannot claim to have a vested right in

the injustice being done, because of a non-deliberate delay. The court

should not harm innocent parties if their rights have in fact emerged by

delay on the part of the petitioners. (Vide Durga Prashad v. Chief

Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769]

, Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR

1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board,

Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of

India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop.

Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC

(Civ) 56 : AIR 2011 SC 2161] .)”

(emphasis supplied)

19. In Vidya Devi (supra), State took over the land of the appellant therein for

construction of road without taking recourse to acquisition proceeding.

20. The contention of the State that the appellant or her predecessors had

“orally” consented to the acquisition was found to be completely baseless

and it was held that there was complete lack of authority and legal sanction

in compulsorily divesting the appellant of her property by the State.

21. The contention of the State of delay and l aches of the appellant in

approaching the Court was rejected. The Hon’ble Supreme Court held thus-

“12.3. To forcibly dispossess a person of his private property, without

following due process of law, would be violative of a human right, as

also the constitutional right under Article 300-A of the Constitution.

Reliance is placed on the judgment in Hindustan Petroleum Corpn.

Ltd. v. Darius Shapur Chenai [Hindustan Petroleum Corpn.

Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627] , wherein this Court

held that: (SCC p. 634, para 6)

“6. … Having regard to the provisions contained in Article 300-A

of the Constitution, the State in exercise of its power of “eminent

domain” may interfere with the right of property of a person by

acquiring the same but the same must be for a public purpose

and reasonable compensation therefor must be paid.”

(emphasis supplied)

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12.4. In N. Padmamma v. S. Ramakrishna Reddy [N. Padmamma v. S.

Ramakrishna Reddy, (2008) 15 SCC 517] , this Court held that: (SCC p.

526, para 21)

“21. If the right of property is a human right as also a

constitutional right, the same cannot be taken away except in

accordance with law. Article 300-A of the Constitution protects such

right. The provisions of the Act seeking to divest such right, keeping

in view of the provisions of Article 300-A of the Constitution of India,

must be strictly construed.”

(emphasis supplied)

12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P. [Delhi Airtech

Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 : (2011) 4 SCC (Civ)

673] , this Court recognised the right to property as a basic human right

in the following words: (SCC p. 379, para 30)

“30. It is accepted in every jurisprudence and by different political

thinkers that some amount of property right is an indispensable

safeguard against tyranny and economic oppression of the

Government. Jefferson was of the view that liberty cannot long

subsist without the support of property. “Property must be secured,

else liberty cannot subsist” was the opinion of John Adams. Indeed

the view that property itself is the seed-bed which must be

conserved if other constitutional values are to flourish, is the

consensus among political thinkers and jurists.”

(emphasis supplied)

12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat [Jilubhai

Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596] , this

Court held as follows: (SCC p. 627, para 48)

“48. … In other words, Article 300-A only limits the powers of the

State that no person shall be deprived of his property save by

authority of law. There has to be no deprivation without any

sanction of law. Deprivation by any other mode is not acquisition or

taking possession under Article 300-A. In other words, if there is no

law, there is no deprivation.”

(emphasis supplied)

12.9. In a democratic polity governed by the rule of law, the State could

not have deprived a citizen of their property without the sanction of law.

Reliance is placed on the judgment of this Court in Tukaram Kana

Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013)

1 SCC (Civ) 491] wherein it was held that the State must comply with

the procedure for acquisition, requisition, or any other permissible

statutory mode. The State being a welfare State governed by the rule of

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law cannot arrogate to itself a status beyond what is provided by the

Constitution.

12.11. We are surprised by the plea taken by the State before the High

Court, that since it has been in continuous possession of the land for

over 42 years, it would tantamount to “adverse” possession. The State

being a welfare State, cannot be permitted to take the plea of adverse

possession, which allows a trespasser i.e. a person guilty of a tort, or

even a crime, to gain legal title over such property for over 12 years. The

State cannot be permitted to perfect its title over the land by invoking

the doctrine of adverse possession to grab the property of its own

citizens, as has been done in the present case.

12.12. The contention advanced by the State of delay and laches of the

appellant in moving the Court is also liable to be rejected. Delay and

laches cannot be raised in a case of a continuing cause of action, or if

the circumstances shock the judicial conscience of the Court.

Condonation of delay is a matter of judicial discretion, which must be

exercised judiciously and reasonably in the facts and circumstances of

a case. It will depend upon the breach of fundamental rights, and the

remedy claimed, and when and how the delay arose. There is no period

of limitation prescribed for the courts to exercise their constitutional

jurisdiction to do substantial justice.

12.13. In a case where the demand for justice is so compelling, a

constitutional court would exercise its jurisdiction with a view to

promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N.,

(1975) 1 SCC 152 : 1975 SCC (L&S) 22]”

(emphasis supplied)

22. The Hon’ble Supreme Court after noticing that the appellant therein has

been divested of her property without being paid any compensation for over

half a century held that the cause of action is a continuing one and the

demand for justice was compelling as the property was taken over without

initiating acquisition proceeding or any procedure known to law.

23. In Sukh Dutt Ratra & Another vs. State of Himachal Pradesh and ors.

reported at (2022) 7 SCC 508, the subject land was utilised for construction

of road in 1972-73, without initiating any acquisition proceeding. A writ

petition was filed in the year 2011 seeking compensation for the subject

land.

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24. A question fell for consideration before the Hon’ble Supreme Court whether

the State merely on the ground of delay and laches, evade its legal

responsibility towards those from whom the private property has been

expropriated. The Hon’ble Supreme Court held that intervention is

warranted on the grounds of equality and fairness. The Hon’ble Supreme

Court held thus-

“17. When seen holistically, it is apparent that the State's actions, or lack

thereof, have in fact compounded the injustice meted out to the appellants

and compelled them to approach this Court, albeit belatedly. The initiation

of acquisition proceedings initially in the 1990s occurred only at the behest

of the High Court. Even after such judicial intervention, the State continued

to only extend the benefit of the Court's directions to those who specifically

approached the courts. The State's lackadaisical conduct is discernible

from this action of initiating acquisition proceedings selectively, only in

respect to the lands of those writ petitioners who had approached the court

in earlier proceedings, and not other landowners, pursuant to the orders

dated 23-4-2007 (in Anakh Singh v. State of H.P. [Anakh Singh v. State of

H.P., 2007 SCC OnLine HP 220] ) and 20 -12-2013 (in Onkar

Singh v. State [Onkar Singh v. State, CWP No. 1356 of 2010, order dated

20-12-2013 (HP)] ), respectively. In this manner, at every stage, the State

sought to shirk its responsibility of acquiring land required for public use in

the manner prescribed by law.

18. There is a welter of precedents on delay and laches which conclude

either way—as contended by both sides in the present dispute—however,

the specific factual matrix compels this Court to weigh in favour of the

appellant landowners. The State cannot shield itself behind the ground of

delay and laches in such a situation; there cannot be a “limitation” to doing

justice. This Court in a much earlier case — Maharashtra SRTC v. Balwant

Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor

Service, (1969) 1 SCR 808 : AIR 1969 SC 329] , held : (AIR pp. 335-36,

para 11)

“11. … ‘Now the doctrine of laches in Courts of Equity is not an

arbitrary or a technical doctrine. Where it would be practically unjust to

give a remedy, either because the party has, by his conduct, done that

which might fairly be regarded as equivalent to a waiver of it, or where

by his conduct and neglect he has, though perhaps not waiving that

remedy, yet put the other party in a situation in which it would not be

reasonable to place him if the remedy were afterwards to be asserted in

either of these cases, lapse of time and delay are most material.

But in every case, if an argument against relief, which otherwise

would be just, is founded upon mere delay, that delay of course not

amounting to a bar by any statute of limitations, the validity of that

defence must be tried upon principles substantially equitable. Two

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circumstances, always important in such cases, are, the length of the

delay and the nature of the acts done during the interval, which might

affect either party and cause a balance of justice or injustice in taking

the one course or the other, so far as relates to the remedy’.”

19. The facts of the present case reveal that the State has, in a

clandestine and arbitrary manner, actively tried to limit disbursal of

compensation as required by law, only to those for which it was

specifically prodded by the courts, rather than to all those who are entitled.

This arbitrary action, which is also violative of the appellants' prevailing

Article 31 right (at the time of cause of action), undoubtedly warranted

consideration, and intervention by the High Court, under its Article 226

jurisdiction. This Court, in Manohar [State of U.P. v. Manohar, (2005) 2 SCC

126] —a similar case where the name of the aggrieved had been deleted

from revenue records leading to his dispossession from the land without

payment of compensation held : (SCC pp. 128-29, paras 6-8)

“6. Having heard the learned counsel for the appellants, we are

satisfied that the case projected before the court by the appellants is

utterly untenable and not worthy of emanating from any State which

professes the least regard to being a welfare State. When we pointed

out to the learned counsel that, at this stage at least, the State should

be gracious enough to accept its mistake and promptly pay the

compensation to the respondent, the State has taken an intractable

attitude and persisted in opposing what appears to be a just and

reasonable claim of the respondent.

7. Ours is a constitutional democracy and the rights available to the

citizens are declared by the Constitution. Although Article 19(1)(f) was

deleted by the Forty-fourth Amendment to the Constitution, Article 300-

A has been placed in the Constitution, which reads as follows:

‘300-A. Persons not to be deprived of prope rty save by

authority of law.—No person shall be deprived of his property save by

authority of law.’

8. This is a case where we find utter lack of legal authority for

deprivation of the respondent's property by the appellants who are

State authorities. In our view, this case was an eminently fit one for

exercising the writ jurisdiction of the High Court under Article 226 of the

Constitution.”

(emphasis supplied)

25. The Hon’ble Supreme Court also reiterated the proposition of law laid down

in Vidya Devi (supra) and Tukaram Kana Joshi (supra) that there is no

period of limitation for the Courts to exercise jurisdiction to do substantial

justice.

Page 13 of 27

26. The Hon’ble Division Bench in the judgment delivered on 22.12.2023 in

MAT 1181 of 2019 in the case of the State of West Bengal & Ors. vs.

Mahadeb Khan & Ors. noticed the proposition of law laid down by the

Hon’ble Supreme Court in Vidya Devi (supra), Tukaram Kana Joshi

(supra) and Sukh Dutta Ratra (supra) and clarified that in almost all the

cases where the Hon’ble Supreme Court has refused to entertain a land

loser’s legal action on the ground of delay or laches were cases where the

land loser challenged the acquisition proceedings after undue delay. The

Hon’ble Division Bench, however, observed that such a person’s claim to

compensation cannot be defeated by the State on the ground of delay.

27. The Hon’ble Supreme Court in B.K. Ravichandra and Others vs. Union of

India reported in (2021) 14 SCC 703 held that the Court’s role is to act as

guarantor and jealous protector of the people’s liberties and any

condonation of the Court is the validation of such unlawful executive

behaviour which it then can justify its conduct on the anvil of such loftier

purpose. The Hon’ble Supreme Court held thus-

“35. It is, therefore, no longer open to the State : in any of its forms

(executive, State agencies, or legislature) to claim that the law — or the

Constitution can be ignored, or complied at its convenience. The

decisions of this Court, and the history of the right to property show

that though its pre-eminence as a fundamental right has been

undermined, nevertheless, the essence of the rule of law protects it. The

evolving jurisprudence of this Court also underlines that it is a valuable

right ensuring guaranteed freedoms and economic liberty. The phrasing

of Article 300-A is determinative and its resemblance with Articles 21

and 265 cannot be overlooked, they in effect, are a guarantee of the

supremacy of the rule of law, no less. To permit the State : whether the

Union or any State Government to assert that it has an indefinite or

overriding right to continue occupying one's property (bereft of lawful

sanction) — whatever be the pretext, is no less than condoning

lawlessness. The courts' role is to act as the guarantor and jealous

protector of the people's liberties : be they assured through the

freedoms, and the right to equality and religion or cultural rights under

Part III, or the right against deprivation, in any form, through any

process other than law. Any condonation by the court is a validation of

such unlawful executive behaviour which it then can justify its conduct

on the anvil of some loftier purpose, at any future time, aptly described

as a “loaded weapon ready for the hand of any authority that can bring

forward a plausible claim of an urgent need.” [ The phrase is quoted

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from Robert Jackson, J.'s powerful and timeless dissent in Toyosaburo

Korematsu v. United States, 1944 SCC OnLine US SC 135 : 89 L Ed 194

: 323 US 214 (1944). The full text of the relevant extract, where the

Judge dissented from the majority of the US Supreme Court, which

upheld the indefinite internment of American citizens of Japanese

origin, is reproduced below : (SCC OnLine US SC para 76)“76. … a

judicial construction of the due process clause that will sustain this

order is a far more subtle blow to liberty than the promulgation of the

[military] order itself. A military order, however unconstitutional, is not

apt to last longer than the military emergency. … once a judicial opinion

rationalises such an order to show that it conforms to the Constitution,

or rather rationalises the Constitution to show that the Constitution

sanctions such an order, the Court for all times has validated the

principle of racial discrimination in criminal procedure and of

transplanting American citizens. The principle then lies about like a

loaded weapon ready for the hand of any authority that can bring

forward a plausible claim of an urgent need.”]”

(emphasis supplied)

28. From the aforesaid discussion it follows that if a person is deprived of his

property except by due process of law, the State cannot be allowed to take

shelter under the doctrine of delay and laches, as it would amount to

validation of the unlawful executive behaviour, which is not permissible.

Thus, the claim for fair compensation of a land loser cannot be negated

solely on the ground of delay in approaching the Court but the same should

be tested on equitable principles.

29. The Hon’ble Division Bench in MAT 464 of 2018 in the case of The State

of West Bengal vs. Dilip Ghosh and ors. judgment delivered on

29.09.2022 after noting that the judgment in the case of Vidya Devi (supra)

says that the Hon’ble Supreme Court exercised extraordinary jurisdiction

under Articles 136 and 142 of the Constitution of India to direct the State to

pay compensation, held that the detailed discussion leading to the

conclusion that the State cannot resort to the principle of adverse

possession to defeat a citizen’s claim for compensation for his land acquired

by the State, is a binding declaration of law within the meaning of Article

141 of the Constitution. The Hon’ble Division Bench further held that if the

State forcibly occupies the land of a citizen who may not be that

enlightened, informed or diligent and after twelve year s the State is

Page 15 of 27

permitted to claim that it has perfected its title to such land by way of

adverse possession cannot be countenanced in law and would be contrary to

all cannons of justice.

30. In U.P. Jal Nigam and another vs. Jaswant Singh & Anr. reported at

(2006) 11 SCC 464 , the employees of U.P. Jal Nigam filed writ petitions

long after their superannuation challenging their retirement which was said

to be made on attaining the age of 58 years.

31. The question that fell for consideration before the Hon’ble Supreme Court

was whether the employees who did not wake up to challenge their

retirement and accepted the same, collected their post-retirement benefits

can be granted relief in the light of the subsequent decision of the Hon’ble

Supreme Court. The Hon’ble Supreme Court held that whenever it appears

that the claimants lost time and did not rise to the occasion in time for filing

the writ petitions, the Court should be very slow in granting relief to the

incumbent.

32. The said decision pertains to service jurisprudence and, therefore, the same

cannot apply to a case where the land loser seeks compensation when his

property has been utilised without sanction of law.

33. In Rabindra Nath Bose (supra), the petitioners therein complained that the

Government in breach of the rules governing the service appointed the

respondents and were also given preferential treatment in the matter of

seniority. The Hon’ble Supreme Court dismissed the said petitions on the

ground that there has been inordinate delay in presenting the same. The

said decision also pertains to service jurisprudence and, therefore, cannot

come to the aid of the State.

34. In the case on hand the possession of the property of the petitioner was

taken over by initiating a proceeding for requisition and the same has been

utilised without even resorting to the provisions for acquisition either under

the 1948 Act during its lifetime or by resorting to the provisions of Section

9(3A) of the 1894 Act till the said Act was repealed by the 2013 Act. Since

Page 16 of 27

the property of the petitioner was taken over and the petitioner also

repeatedly requested for grant of compensation, such a claim cannot be

denied by the State on the plea of delay and laches as the State is obliged to

comply with the procedure laid down for acquisition in accordance with law

which includes payment of fair compensation to the land losers. Cause of

action in the case on hand is continuing one. The manner in which the

petitioner has been deprived of his property without legal sanction shocks

the conscience of this Court. The claim of the petitioner is found to be

sustainable by this Court in view of the undisputed factual position. This

Court is, therefore, inclined to exercise discretion in favour of the petitioner

in order to promote justice.

35. For all the reasons as aforesaid this Court is not inclined to accept the

contention of the learned Senior Advocate for the State that the writ petition

should be dismissed on the ground of alleged delay and laches.

36. After deciding the aforesaid issue in favour of the petitioner, this Court shall

now proceed to decide whether the petitioner is entitled to compensation

under the 2013 Act.

37. The property of the petitioner was requisitioned by an order passed under

Section 3(1) of the 1948 Act. Possession of the land was taken and delivered

to the Requiring Body. Admittedly no notice under Section 4(1a) of the 1948

Act was published in the Calcutta Gazette.

38. At this stage it would be profitable to recapitulate the provisions of Section 3

and 4 of the 1948 Act for which the same are extracted hereinafter.

"3. Power to requisition :- (1) If the State Government is of the opinion

that it is necessary so to do for maintaining supplies and services

essential to the life of the community (or for increasing employment

opportunities for the people by establishing commercial estates and

industrial estates in different areas) or for providing proper facilities for

transport, communication, irrigation or drainage, or for the creation of

better living conditions in rural or urban areas, not being an industrial

or other areas excluded by the State Government by a notification in

this behalf, by the construction or re-construction of dwelling places in

such areas (or for purposes connected therewith or incidental thereto),

the State Government may, by order in writing, requisition any land

Page 17 of 27

and may make such further orders as appear to it to be necessary or

expedient in connection with the requisitioning:

Provided that no land used for purpose of religious worship or used

by an educational or charitable institution shall be requisitioned under

this section.

(lA) A Collector of a District, (an Additional District Magistrate or the

First Land Acquisition Collector, Calcutta,) when authorised by the State

Government in this behalf, may exercise within his jurisdiction the

powers conferred by sub- section (1).

(2) An order under sub-section (1) shall be served in the prescribed

manner on the owner of the land and where the order relates to land in

occupation (of an occupier, not being the owner of the land, also on such

occupier),

(3) If any person fails to comply with an order made under sub-section

(1) the Collector or any person authorised by him in writing in this

behalf shall execute the order in such manner as he considers

expedient and may:-

(a) If he is a Magistrate, enforce the delivery of possession of the land in

respect of which the order has been made to himself, or

(b) if he is not a Magistrate, apply to a Magistrate or, in Calcutta as

defined in clause (ii) of Section 5 of the Calcutta Municipal Act, 1951, to

the Commissioner of Police, and such Magistrate or Commissioner, as

the case may be, shall enforce the delivery of possession of such land to

him.

4. Acquisition of Land -(1) Where any land has been requisitioned

under section 3, the State Government may use or deal with such land

for any of the purposes referred to in sub- section (1) of Section 3 as

may appear to it to be expedient.

(la) The State Government may acquire any land requisitioned under

Section 3 by publishing a notice in the Official Gazette that such land is

required for a public purpose referred to in sub-section (1) of Section 3.

(2) Where a notice as aforesaid is published in the Official Gazette, the

requisitioned land shall, on and from the beginning of the day on which

the notice is so published, vest absolutely in the (State) Government free

from all incumbrances and the period of requisition of such land shall

end.”

Page 18 of 27

39. 1948 Act was amended by the West Bengal Land (Requisition and

Acquisition) (Amendment) Act 1994 which was published in the Calcutta

Gazette on 31.03.1994. By virtue of the said Amendment Act, Section 3 of

the 1948 Act was omitted. Therefore, the power of the State to requisition

any land was taken away by virtue of the Amendment Act of 1994 with effect

from 01.04.1994. The validity of the 1948 Act was also extended till

31.03.1997 by virtue of the said Amendment Act.

40. 1948 Act was further amended by West Bengal Land (Requisition and

Acquisition) (Amendment) Act 1996 thereby inserting Section 7A after

Section 7 of the 1948 Act. A plain reading of Section 7A makes it clear that

unless an award is made within the time specified therein, the notice under

Section 4(1a) shall lapse.

41. The validity of the 1948 Act which was extended from time to time was not

extended any further and it ceased to be operative on the expiry of 31

st

March, 1997.

42. 1948 Act is a temporary statute which stood expired by efflux of time. It is

now well settled that any proceeding under a temporary statute also dies a

natural death in the absence of any special provision to the contrary.

43. Possession taken under Section 3 of the 1948 Act was a possession on

requisition. Issuance of notice under Section 4(1a) of the 1948 Act would

have the effect of ending the requisition and converting into an acquisition

and it would remain an acquisition till the said notice remains valid. If no

notice under Section 4(1a) is issued, the requisition shall come to an end on

the expiry of the 1948 Act and the property should be restored to the owner.

Requisition can also be said to have come to an end for acquisition where

notice issued under Section 4(1a) stood lapsed before 31

st

March 1997.

44. Land Acquisition (West Bengal Amendment) Act, 1997 was enacted to revive

the requisition for acquisition.

Page 19 of 27

45. By virtue of such amendments, Sub-sections 3A and 3B were inserted after

Section 9(3) of the 1894 Act. Sub-section 3A and 3B of the 1894 Act as

incorporated by way of amendment is extracted hereinafter.

“(3A) The Collector shall also serve notice to the same effect on all such

persons known or believed to be interested in any land, or to be entitled

to act for persons so interested, the possession whereof has already

been taken on requisition under section 3 of the West Bengal Land

(Requisition and Acquisition) Act, 1948 (hereinafter referred to in this

section as the said Act), as re-enacted by the West Bengal Land

(Requisition and Acquisition) Re-enacting Act, 1977, and, in every such

case, the provisions of sub-section (1) of section 4, section 5, section 5A,

section 6, section 7, and section 8 of this Act shall be deemed to have

been complied with:

Provided that the date of notice under this sub-section shall be the date

of reference for the purpose of determining the value of such land under

this Act:

Provided further that when the Collector has made an award under

section 11 in respect of any such land, such land shall, upon such

award, vest absolutely in the Government, free from all encumbrances.

(3B) The Collector shall also serve notice to the same effect on all such

persons known or believed to be interested in any land, or to be entitled

to act for persons so interested, the possession whereof has already

been taken on requisition under section 3 of the said Act, and notice for

acquisition of such land has also been published under sub-section (la)

of section 4 of the said Act, and, in every such case, the provisions of

section 4, section 5, section 5A, section 6, section 7, section 8, and

section 16 of this Act shall be deemed to have been complied with:

Provided that the date of publication of notice under subsection (la) of

section 4 of the said Act shall be the date of reference for the purpose of

determining the value of such land under this Act:

Provided further that in every such case, the Collector shall make an

award under section 11 in respect of such land only for the purpose of

payment of due compensation to the persons interested in such land

where such land has, upon the Collector taking possession thereof,

already vested absolutely in the Government, free from all

encumbrances.”

46. Section 9(3B) comes into play where notice under Section 4(1a) of the 1948

Act has been issued. Admittedly notice under Section 4(1a) has not been

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issued in the case on hand. In view thereof Section 9(3B) cannot have any

manner of application to the case on hand.

47. Section 9(3A) states that in a case where possession has already been taken

on requisition under Section 3 of the 1948 Act, the provision of Section 4(1),

5A, 6, 7 and 8 of the 1894 Act shall be deemed to have been complied with.

Proviso thereto states that the date of notice under Section 9(3A) shall be

the date of reference for the purpose of determining the value of such land

under the 1894 Act. Second proviso states that when the Collector has made

an award under Section 11 in respect of any such land, shall upon such

award, vest absolutely in the government free from all incumbrances.

48. In the case on hand, the possession of the land in question was taken under

Section 3 of the 1948 Act. Such possession was taken on requisition. In the

absence of any notice being published under Section 4(1A) of the 1948 Act

the question of vesting of the land as contemplated under Section 4(2) of the

1948 Act cannot and does not arise.

49. 1948 Act stood expired due to efflux of time after 31.03.1997. With the

expiry of the 1948 Act by efflux of time, the requisition made under Section

3 of the said Act also came to an end. Thus, the possession of the property

after 31.03.1997 without initiating any proceeding for acquisition is without

any authority of law. The State was under an obligation to restore

possession of the land to the land owner after 31.03.1997.

50. The Land Acquisition (West Bengal Amendment) Act 1997 empowered the

State to continue with possession of such lands by resorting to Section 9(3A)

of the 1894 Act. The effect of the Land Acquisition (West Bengal

Amendment) Act 1997 fell for consideration in Sabitri Devi vs. State of

West Bengal reported at (2002) 3 CHN 108 wherein it was held that

revalidation has the effect of reviving requisition for acquisition. The co-

ordinate bench in paragraph 41 held thus-

“41. The revalidation has the effect of reviving the requisition for

acquisition. As such it is only on the issue of notices under sub-section

(3A) or (3B) of section 9 of 1894 Act, the revalidation takes, effect. The

Page 21 of 27

requisition having ended on the effacement of the statute the property is

to be restored to the owner. It could also be treated to have been ended

for acquisition where notices under section 4(1a) of 1948 Act stood

lapsed before 31

st

March, 1997. By reason of 1997 Amendment in West

Bengal of 1894 Act a fiction is created. By reason of such fiction the

requisition would stand converted into acquisition with the issue of

notice under section 9(3A) of the 1894 Act, as amended in 1997 in West

Bengal. As soon section 9(3A) is resorted to, the possession, if continued

after requisition and not restored, shall be deemed to be a possession

revalidated under the Land Acquisition Act which then would be a

possession for acquisition on the issue of the notification/notice under

section 9(3A). Even though the award is not made before the expiry of

time limit provided under section 7A of the 1948 Act, the possession

then would become a possession under the 1894 Act attracting the

application of section 48 of that Act. But in a case where the notice

under section 4(1a) of 1948 Act is valid as on 31

st

March, 1997 on the

issue of notice under section 9(3B) the possession would be revalidated

under 1894 Act form the date of issue of the notice/notification under

section 4(1a) of 1948 Act. As soon the possession becomes a possession

under the 1894 Act attracting the application of section 48 of that Act

the limitation provided in section 11A of that Act would not be render

the acquisition invalid on its expiry. The moment notice under section

9(3A) or (3B) of 1894 Act is issued, the provisions of section 48 of that

Act becomes applicable. As such when the case comes under the

provisions of the said section the State Government has no authority to

withdraw. Therefore, expiry of limitation lapse of two years provided in

section 11A of 1894 Act, from 1

th

March, 1999 namely, the date of issue

of the notice under section 9(3A) of 1894 Act, will not be operative in a

case where possession as hereinbefore stated, has already been takes.

Thus, there is no scope for treating the proceeding as lapsed.”

(emphasis supplied)

51. In Sabitri Devi (supra), it has been further held that as soon Section 9(3A)

is resorted to, the possession, if continued after requisition and not restored,

shall be deemed to be a possession under the 1894 Act which then would be

a possession for acquisition on the issue of the notice under Section 9(3A).

However, where notice under Section 4(1a) of 19485 Act is valid as on

31.03.1997, on the issue of notice under Section 9(3B), the possession

would be revalidated under the 1894 Act from the date of issuance of notice

under Section 4(1a) of 1948 Act. It was further held that Sections 9(3A) and

9(3B) of 1894 Act are steps for acquisition under the 1894 Act. It was held

thus-

Page 22 of 27

“45. In cases where notice under section 9(3A) or (3B) of the 1894 Act

as amended 1997 Act, is not issued, whether the notice under section

4(1a) is serving or not on 31st March, 1997 by reason of lapse of 1948

Act not only the requisition but also the acquisition would lapse

irrespective of the principle once vested cannot be divested. Once a

temporary statute provides a particular manner, after the temporary

statute expires, the same cannot be revived by a fresh statute unless

expressly provided for a saving clause. Sections 9(3A) and (3B) of 1894

Act are steps for acquisition under 1894 Act creating legal fiction which

has to be interpreted having regard to the provisions of General Clauses

Act vis a vis a temporary statute.”

(emphasis supplied)

52. State of West Bengal preferred an appeal against the judgment delivered by

the co-ordinate bench in Sabitri Devi (supra). The said appeal, along with

the other three appeals, was assigned before the Full Bench. Three Hon’ble

Judges of this Court decided four appeals, the lead case being FMA 486 of

2007 (State of West Bengal vs. Sabita Mondal ) which was reported at

2011(3) CHN (Cal) 555.

53. The Hon’ble Full Bench held that the effect of the Land Acquisition (West

Bengal Amendment) Act, 1997 which came into operation on the midnight

between March 31, 1997 and April 1, 1997 prevented all those notices

under Section 4(1a) issued after April 1, 1994 from being lapsed by giving

the scope of revival by way of a notice under Section 9(3B) of the 1997

Amendment Act if the award had not been passed within three years from

the date of publication of such notice which would otherwise lapse if the Act

of 1997 would not come into operation at the midnight of March 31, 1997.

54. It was further clarified that in respect of those notices under Section 4(1a)

which were issued prior to March 31, 1992 and in respect of which no

award had been passed by March 31, 1995, those notices had already

lapsed and by the 1997 Amendment Act, no provision has been made for

revival of those lapsed notices.

55. The Hon’ble Full Bench affirmed the order passed by the Hon’ble Single

Judge in Sabitri Devi (supra).

Page 23 of 27

56. In the case on hand, the possession of the land of the petitioner was taken

in exercise of the power of requisition under a temporary statute. The said

land has been utilised for a permanent purpose without initiating any

proceeding for acquisition of the same under the 1948 Act.

57. Article 300A of the Constitution of India states that no person can be

deprived of his property, save by authority of law. The power to acquire land

falls within the purview of eminent domain of the State and the Land

Acquisition Laws provide a complete mechanism for deprivation of property

of a person in accordance with law. Utilisation of a property without

payment of fair compensation to the land owner(s) is in violation of Article

300A of the Constitution of India. If the property of a citizen has been

utilised for a public purpose, State is obliged to pay fair compensation to

such land owner in accordance with law.

58. It is not the case of the respondent State that notice under Section 9(3A) has

been served upon the petitioner. In the meantime, the 1894 Act stood

repealed with the coming into force of the 2013 Act on and from 01.01.2014.

Thus, there is no further scope to issue a notice under Section 9(3A) of the

1894 Act after the 1894 Act stood repealed.

59. To the mind of this Court, the proceeding initiated under the 1948 Act stood

lapsed with the effacement of the said statute. No attempt was made to

revalidate the requisition for acquisition by issuing a notice under Section

9(3A) of the 1997 Amendment Act. This Court accordingl y holds that the

authorities of the State are possessing the land in question forcibly and

without any authority of law. The land owners have been deprived of their

right to get fair compensation for their land.

60. The Hon’ble Supreme Court in State of W.B. v. Aziman Bibi, reported at

(2016) 15 SCC 710 noted that the land of the writ petitioners therein had

been utilised pursuant to a notification under Section 4 of the West Bengal

Land Development and Planning Act, 1984 followed by a declaration under

Section 6 of the said Act and also recorded the undisputed fact of the said

case that after taking over possession of the said land the same was utilised

Page 24 of 27

for public purpose without passing any award determining the

compensation to be paid to the land owners. The Hon’ble Supreme Court

after noticing that the land acquisition proceeding had lapsed directed the

State to take steps for notifying the acquisition once again and determine

compensation in accordance with law.

61. In Ganesh Samanta (supra) though notice under Section 4(1a) of the 1948

Act was issued but admittedly no award was published within three years

from the date of issuance of such notification. The Hon’ble Division Bench

held that the notice issued under Section 4(1a) of the 1948 Act stood lapsed,

the title which was vested with the State by operation of law under Section

4(1a) of the 1948 Act will not continue to remain with the State after the

State failed to publish the award under Section 7A of the said Act within the

statutory period. The Hon’ble Division Bench by placing reliance upon the

decision of the Special Bench in the case of Sabita Mondal (supra) held

that the State Government could have completed the acquisition proceeding

by applying the provision contained in Section 9(3A) of the Land Acquisition

Act in pursuance of the notice which was issued by the State Government in

compliance with the direction passed by the learned Single Judge but in

view of the subsequent development in the Land Acquisition Laws with the

enactment of the right to fair compensation and transparency in Land

Acquisition, Rehabilitation and Resettlement Act of 2013 and particularly in

view of Section 24(1)(a) of the 2013 Act, the State could not have completed

the acquisition proceeding by following Section 9(3A) of the Land

Acquisition Act, which has since been repealed. The Hon’ble Division Bench

expressed the view that the State respondent was required to complete the

acquisition proceeding by following the relevant provision of the 2013 Act.

62. In MAT 1181 of 2019 in the case of State of West Bengal and ors. vs.

Mahadeb Khan and ors. , which was delivered on 22.12.2023, the property

was requisitioned under Section 3 of the 1948 Act and possession of the

land was also taken over by the Government. Subsequently, a notice of

acquisition under Section 4(1a) of the 1948 Act was issued but no award

Page 25 of 27

was made within three years from the date of acquisition notice. A notice

under Section 9(3B) of the 1894 Act was issued by the Government but even

thereafter no award was made by the Collector and the land owners received

no compensation for their land which had been taken over and utilised by

the State Government for constructing a public road.

63. In that decision a submission was made that since acquisition proceeding

was not initiated under the 1894 Act, as per Section 24 of the 2013 Act, the

provisions of the 2013 Act would not apply to the facts of the said case. The

Hon’ble Division Bench after noticing the provisions of the 1948 Act held

that Section 24 of the 2013 Act basically is a saving section and saves

acquisition proceedings from lapsing to the extent indicated thereunder

nothing more nothing less. The Hon’ble Division Bench after noting that in

the facts of that case, the State having deprived the writ petitioners of their

property without following due process of law and without paying any

compensation – which is really an act of expropriation- the State cannot be

permitted to argue that the delay on the part of the writ petitioners in

approaching the Court will cause imposition of greater financial burden on

the State since in the meantime the 2013 Act has come into operation and

holds the field.

64. The Hon’ble Division Bench further held that had the State acted in

accordance with law could have avoided the additional financial burden, if

any, that may be foisted on it by reason of compensation being calculated in

terms of the 2013 Act. The Hon’ble Division Bench directed the Collector/

the competent authority to initiate proceedings for acquiring the land of the

writ petitioners therein under the provisions of the 2013 Act and to complete

the entire proceedings including payment of compensation within a specified

time frame.

65. Thus, the Hon’ble Division Bench in Mahadeb Khan (supra) held that even

though the notice under Se ction 4(1a) of the 1948 Act lapsed, the

Government could have revived the acquisition proceedings by serving

notice under Section 9(3A) of the 1894 Act. No time period was prescribed

Page 26 of 27

for service of such notices. However, that was not done during the lifetime of

the 1894 Act. That could not be done any further after January 1, 2014 i.e.,

date with effect from which the 1894 Act stood repealed.

66. The contention of the learned advocate for the State that even after repeal of

the 1984 Act, proceeding could continue under that Act was not accepted by

the Hon’ble Division Bench by placing reliance upon Section 24(1)(b) of the

2013 Act. It was held that such scenario is contemplated only under Section

24(1)(b) of the 2013 Act which is to the effect that in any case of land

acquisition proceedings initiated under the 1894 Act, where an award under

Section 11 of the said Act has been made, then such proceedings shall

continue as if that Act has not been repealed.

67. Thus, in Mahadeb Khan (supra) the Hon’ble Division Bench held that after

01.01.2014 notice under Section 9(3A) of the 1894 Act could not be issued

and after repeal of the 1894 Act and the proceedings under the repealed Act

could not continue except in cases falling under Section 24(1)(b) of the 2013

Act.

68. Mandodari Bhakat (supra) which considered the Full Bench decision of

Sabita Mondal (supra) was followed by the Hon’ble Division Bench in

Mahadeb Khan (supra).

69. In Mariam Ahmed (supra) notice under Section 4(1a) of the 1948 Act was

published. A notice under Section 9(3B) of the 1894 Act was issued. The

Hon’ble Division Bench after noting that in the facts of that case the

appropriate notice would have been a notice under Section 9(3A) and not

9(3B) observed that the notice issued under Section 9(3B) of the Land

Acquisition Act shall be deemed to be a notice under Section 9(3A) of the

said Act and the State was directed to pay compensation by taking the date

of notice under Section 9(3A) as the date of reference for the purpose of

determining the value of the land under the land Acquisition Act and,

thereafter, pass an award in favour of the land loser and pay the award

amount to the land loser.

Page 27 of 27

70. In Mariam Ahmed (supra) a notice under Section 4(1a) of the 1948 Act and

a notice under Section 9(3B) of the 1997 Amendment Act were issued.

71. In the case on hand neither any notice under Section 4(1a) of the 1948 Act

was issued prior to expiry of the 1948 Act nor any notice under the 9(3A) or

9(3B) were issued during the lifetime of the 1894 Act. Thus, no acquisition

proceeding under the 1894 Act could be said to have been initiated in the

case on hand. The decision in Mariam Ahmed (supra) being distinguishable

on facts cannot come to the aid of the State in the case on hand.

72. The property of the petitioner has been utilised and the State is not in a

position to return the said land to the petitioner.

73. It is now well settled that a person cannot be deprived of his property except

with due process of law. Since property has been utilised and the State is

not in a position to return the same to the land owner, the petitioners are

entitled to fair compensation.

74. For all the reasons as aforesaid the writ petition stands allowed. The

respondent authorities are directed to initiate proceedings for acquisition of

the land of the petitioners under the 2013 Act and complete the entire

proceedings including payment of compensation to the land

losers/petitioners as expeditiously as possible but positively within a period

of four months from the date of receipt of a server copy of this order.

75. Urgent photostat certified copies, if applied for, be supplied to the parties

upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)