Case: Shrachi Burdwan Developers Private Limited Vs. The State of West Bengal &amp; Ors

3. The facts leading to the present appeals in nutshell are as under:-3.1 Burdwan Development Authority (hereinafter referred to as BDA) requisitioned the land in question. The Government issued 12 separate notifications under Section 4 of the Land Acquisition Actin the months of April and May, 2005 stating inter alia that the lands would be acquired for public purpose for setting up the Satellite Township for Burdwan Town at public expenses. That thereafter, the declaration under Section 6 of the Land Acquisition Act was published.3.2 In the month of August, 2005, Paschim Bardhaman Krishi Kalyan Samity, a group of farmers filed a writ petition before the High Court challenging the notifications issued under Section 4 of the Act on the grounds inter alia that the acquisition are not for public purpose and not on public expenses but on private expenses of Bengal Shrachi Housing Development Ltd. (hereinafter referred to as Bengal Shrachi). According to the original claimants – landowners, BDA filed objection pleading that the entire cost of acquisition is borne by the BDA itself and the lands were needed for public purpose. The High Court dismissed the said writ petition holding the acquisition was for public purpose and at public expenses, entirely to be paid by BDA.3.3 It appears that after declaration was published under Section 6 of the Act, an unregistered Memorandum of Agreement (MoA) dated 08.03.2006 was executed by the BDA with Bengal Shrachi who was chosen in a bid process amongst some other companies for development of lands acquired under a public private partnership.3.4 That thereafter, the Land Acquisition Collector declared award under Section 12(1) of the Act. The said amount was paid by BDA. That thereafter on 26.02.2007, the State of West Bengal took over possession of the lands from the farmers and handed it over to BDA and BDA handed it over to Bengal Shrachi. In the meantime, at the instance of the landowners References were made to the Reference Court under Section 18 of the Act. The Reference Court allowed the References and enhanced the compensation from Rs.5,80,700/- per acre as determined by the Collector to Rs.35,00,000/- per acre together with solatium, interest, and other statutory dues thereon.3.5 Feeling aggrieved and dissatisfied with the common judgment and order passed by the Reference Court, at the instance of the BDA, four appeals are pending before the High Court of judicature at Calcutta.3.6 Feeling aggrieved and dissatisfied with the judgment and award passed by the learned Reference Court, the appellant herein Shrachi Burdwan Developers Private Limited (hereinafter referred to as Shrachi Burdwan) filed a Writ Petition No. 9778(W) of 2012 before the High Court of Calcutta in which the following prayers were stated:-a) A declaration that the petitioners are not liable to pay any amount over and above the original cost of acquisition already paid to the respondent authorities;b) In the alternative, a declaration that the impugned judgments and/or orders passed by the Learned Additional District Judge, Burdwan in the 24 land acquisition cases (being Annexure P:29 hereto) and detailed in the letter dated 16thDecember, 2011 are arbitrary, illegal, null and Void;c) A writ of and/or in the nature of Mandamus do issue restraining the respondent authorities from demanding from the petitioners any amount over and above the original cost of acquisition already paid to the respondent authorities;d) A writ of and/or in the nature of Mandamus do issue calling upon the respondent authorities to forthwith revoke, rescind, recall, cancel and set aside:-i. The impugned judgments and/or orders passed by the Learned Additional District judge, Burdwan in the 24 land acquisition cases (being Annexure P29 hereto) and detailed in the letter dated 16 December, 2011 (being Annexure °P27° hereto;ii. The purported decision arrived at the board meeting dated 11th January, 2012 (being Annexure P30 hereto);e) A writ of and/or in the nature of Mandamus do issue restraining the respondent authorities from acting under and from giving any further and/or any effect to:-i. The impugned judgments and/or orders passed by the Learned Additional District Judge, Burdwan in the 24 land acquisition cases (being Annexure P29 hereto);ii. The purported decision arrived at the board meeting dated 11thJanuary, 2012 (being Annexure P30 hereto);f) A writ of and/or in the nature of Mandamus do issue directing the respondents to hear the 24 land acquisition cases (being Annexure P29 hereto) afresh after serving notice and granting hearing to the petitioners in accordance with law;g) A writ of and/or in the nature of Prohibition do issue prohibiting the respondents from proceeding with:-i. The impugned judgments and/or orders passed by the Learned Additional District Judge, Burdwan in the 24 land acquisition cases (being Annexure P29 hereto);ii. The purported decision arrived at the board meeting dated 11thJanuary, 2012 (being Annexure P30 hereto);h) A writ of and/or in the nature of Certiorari do issue calling upon the respondents to transmit to this Honble Court all the records pertaining the impugned judgments and/or orders passed by the Learned Additional District Judge, Burdwan in the 24 land acquisition cases (being Annexure P29 hereto) so that conscionable justice may be done by quashing the same;i) Rule Nisi in terms of the prayers above;j) Injunction restraining the respondents from demanding from the petitioners any amount over and above the original cost of acquisition already paid to the respondent authorities;k) Stay of operation of:-i. The impugned judgments and/or orders passed by the Learned Additional District Judge, Burdwan in the 24 land acquisition cases (being Annexure P29 hereto);ii. The purported decision arrived at the board meeting dated 11thJanuary, 2012 (being Annexure P30 hereto);m) A direction upon the Land Acquisition Collector, Burdwan to issue notice to the respondent No.27 and 28;n) Ad interim orders in terms of prayers (j) and (m) above;o) Such further or other order or orders be made and/ or directions be given as this Honble Court may deem fit and proper,3.7 The learned Single Judge of the High Court allowed the said writ petition by the judgment and order dated 16.02.2017 and quashed and set aside the judgment and award passed by the Reference Court in the Reference cases initiated by original respondent Nos. 6, 16, 17 and 25 in the Writ Petition No.9778(W) of 2012. At this stage, it is required to be noted that the writ petition was confined to only four respondents referred to herein above. Learned Single Judge held that the petitioner can be said to be an interested party within the definition of Section 3(b) of the Act and as the Reference Court passed the judgment and award enhancing the amount of compensation without giving an opportunity to the appellant – Shrachi Burdwan Developers Private Limited. While quashing and setting aside the judgment and award passed by the learned Reference Court, learned Single Judge of the High Court remanded the case back to the learned Additional District Judge, Burdwan (Reference Court) for being decided afresh after giving an opportunity of hearing to the appellant company.3.8 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge dated 16.02.2017, the landowners preferred appeal before the High Court being FMA No. 887 of 2019 and by the impugned judgment and order dated 11.09.2019, the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the judgment and order passed by the learned Single Judge leaving the original writ petitioners - appellants herein free to pursue whatever other remedies may be available to them in accordance with law.3.9 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, appellant herein – Shrachi Burdwan has preferred the present Civil Appeal No.5856 of 2021.3.10 In the meantime, the landowners preferred the execution petition before the Reference Court. In the execution petitions, Shrachi Burdwan preferred the application to implead them as party relying upon the judgment and order dated 16.02.2017 passed in Writ Petition No. 9778(W) of 2012. The Reference Court – Executing Court dismissed the said applications, which were the subject matter of revision applications before the High Court being C.O. No. 1232 of 2018 and other allied revision applications. At this stage, it is required to be noted that the Writ Petition No.9778(W) of 2012 was restricted to only four respondents namely 6, 16, 17 and 25 in the Writ Petition No. 9778(W) of 2012. However, the applications were filed in the execution petitions with respect to 24 claimants/landowners and 24 revision applications were preferred before the High Court. Before the learned Single Judge, Shrachi Burdwan relied upon the judgment and order passed by the learned Single Judge in Writ Petition No. 9778(W) of 2012 by which the learned Single Judge held that Shrachi Burdwan is a necessary and interested party and can be said to be interested person within the definition of Section 3(b) of the Land Acquisition Act. Relying upon the judgment and order passed by the learned Single Judge in Writ Petition No. 9778(W) of 2012, which as such was set aside by the Division Bench of the High Court by its judgment and order dated 11.09.2019 passed in FMA No. 887 of 2019, the learned Single Judge allowed the said revision applications being C.O. No. 1232 of 2018 and other allied revision applications and unfortunately has quashed and set aside the judgment and award passed by the Reference Court holding that Shrachi Burdwan – the revisionist can be said to be a person interested within the definition as envisaged in Section 3(b) of the Act. By the impugned judgment and order, the learned Single Judge of the High Court has passed the following order in paragraph 113:-113. In view of the aforesaid findings, all the revisional applications which are taken up for hearing together, are allowed, thereby setting aside the orders impugned therein and holding that the reference awards, enhancing the amount of compensation, were null and void in the eye of law, since those were passed without impleading Shrachi, a necessary party due to its direct interest in the compensation to be made on account of the acquisition of land, as envisaged in Section 3(b) of the LA Act. However, this will not prevent the land?losers from initiating fresh proceedings under Section 18 of the LA Act, impleading Shrachi as a party.3.11 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge of the High Court dated 26.02.2020 passed in C.O. No.1232 of 2018 and other allied revision applications quashing and setting aside the judgment and award passed by the Reference Court, the original landowners/claimants have preferred the present Civil Appeal Nos.5857-5880 of 2021.

Reasoning:
8. So far as Civil Appeal No.5856 of 2021 is concerned, Shrachi Burdwan filed a writ petition under Article 226 of the Constitution of India for the reliefs referred to hereinabove and more particularly, challenging the judgment and award passed by the Reference Court enhancing the amount of compensation. The appellant herein, Shrachi Burdwan was not a party to the Reference proceedings. The locus of the appellant – Shrachi Burdwan has been seriously disputed on behalf of the landowners/claimants and it is seriously disputed whether the appellant - Shrachi Burdwan can be said to be a person interested within the definition of Section 3(b) of the Land Acquisition Act. It is also required to be noted that as such out of 24 Reference cases, before the High Court in Writ Petition No. 9778(W) of 2012, the appellant restricted the prayer with respect to only four respondents namely 6, 16, 17 and 25 in the writ petition. As observed hereinabove, at the instance of the BDA four appeals challenging the judgment and award passed by the Reference Court are pending before the High Court. Therefore, in the facts and circumstances of the case and more particularly when the locus of the appellant, Shrachi Burdwan to challenge the judgment and award passed by the Reference Court is seriously disputed and whether the appellant, Shrachi Burdwan can be said to be a person interested within the definition of Section 3(b) of the Land Acquisition Act and thereby the appellant can challenge the judgment and award passed by the Reference Court enhancing the compensation are all disputed questions of facts and are all contentious issues, we are of the opinion that learned Single Judge of the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India and ought not to have set aside the judgment and award passed by the Reference Court enhancing the amount of compensation under the provisions of the Land Acquisition Act. The remedy available to the appellant would have been to prefer appeal before the High Court with application for leave to appeal.9. At this stage, it is required to be noted that in view of the judgment and award passed by the learned Reference Court, now, nothing remains to be done in the appeals preferred by the BDA challenging the judgment and award passed by the Reference Court, which was set aside by the learned Single Judge. Therefore, in the facts and circumstances of the case, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the judgment and award passed by the Reference Court. The question is not about maintainability of the writ petition. The question is with respect to the entertainability of the writ petition and for the reasons stated above, we are of the firm opinion that the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the judgment and award passed by the Reference Court, more particularly, when the appellant would have a remedy to file the appeal under Section 54 with the leave of the Court and if at all the Appellate Court – High Court grants leave to prefer the appeal challenging the judgment and award passed by the Reference Court.10. None of the judgments/decisions relied upon by the learned senior counsel appearing on behalf of the appellant on maintainability of the writ petition under Article 226 of the Constitution of India shall be applicable to the facts and circumstances of the case in hand.11. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court IN FMA No. 887 of 2019 is not required to be interfered by this Court. The Division Bench of the High Court has also reserved liberty in favour of the appellant to pursue whatever other remedies may be available to them in accordance with law, which may be including to prefer the appeal before the High Court challenging the judgment and award passed by the Reference Court provided the leave to appeal is granted by the High Court – Appellate Court.13. Even otherwise, the impugned judgment and order passed by the learned Single Judge is not sustainable and it is untenable at law. Before the Executing Court and even before the High Court, the appellant company – Shrachi Burdwan heavily relied upon the judgment and order passed by the High Court in Writ Petition No. 9778(W) of 2012 and prayed to implead them as a party, which as such was set aside by the Division Bench and even special leave petition against the judgment and order passed by the Division Bench was pending before this Court. Therefore, once the judgment and order passed by the learned Single Judge in Writ Petition No. 9778(W) of 2012 was set aside by the Division Bench, the impugned judgment and order passed by the High Court taking a contrary view can be said to be in teeth of the judgment and order passed by the learned Division Bench. The learned Single Judge of the High Court while passing the impugned judgment and order has not maintained the judicial discipline and has passed the judgment and order just contrary to the order passed by the Division Bench. The order passed by the Division Bench was binding on the learned Single Judge.14. Even otherwise, it is required to be noted that even while passing the judgment and order in Writ Petition No. 9778(W) of 2012, the learned Single Judge remanded the matter to the Reference Court for fresh consideration after giving an opportunity to Shrachi Burdwan, the appellant herein (which as such has been set aside by the Division Bench and confirmed by this Court today) and despite the same by the impugned judgment and order in revision applications, the learned Single Judge has set aside the judgment and award passed by the Reference Court in all the 24 cases and not remanded the matter to the Reference Court but has observed that it will be open for the original landowners to initiate fresh proceedings under Section 18 of the Land Acquisition Act, impleading Shrachi Burdwan - the appellant as a party. Learned Single Judge has not appreciated that to initiate fresh proceedings under Section 18 of the Land Acquisition Act now would create so many problems including the question of limitation etc. In any case, even such an order reserving liberty in favour of the land losers to initiate fresh process under Section 18 is also just contrary to the decision of the learned Single Judge in Writ Petition No. 9778(W) of 2012 by which the learned Single Judge remanded the matter to the Reference Court for fresh decision. Of course, as observed hereinabove, the order passed by the learned Single Judge in Writ Petition No. 9778(W) of 2012 has been set aside by the Division Bench.