IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION Present: The Honble Justice Jyotirmay Bhattacharya The Honble Justice Ishan Chandra Das F.A.T. 122 of 2016 With CAN 7006 of 2016 With CAN 7762 of 2015 With CAN 7772 of 2015 Union of India & Anr. versus Mafizuddin Ahamed & Ors. For the Appellants/Applicants : Mr. Partha Sarathi Bose, Sr.Adv., Mr. Deepak Kumar Singh. For the Plaintiffs/Respondents : Mr. Dibyendu Chatterjee, Mr. Siddhartha Roy, Ms. Madhuparna Kanrar. For the State/Respondent No.30 : Mr. Anirudha Mohanta. Heard On : 31-08-2016. Judgement On : 31-08-2016. Re: CAN 7006 of 2016 (leave to prefer an appeal) Jyotirmay Bhattacharya, J. : The Requiring Body in a land acquisition proceeding has come before us with this application seeking leave to prefer an appeal for challenging the judgement and decree passed by the Land Acquisition Judge in a proceeding arising out of a reference under Section 18 of the Land Acquisition Act. It is contended by the applicants that the Requiring Body was never informed about the proceeding under Section 18 of the Land Acquisition Act which was disposed of by the impugned judgement and decree passed by the learned Additional District Judge, Special Court, Dakshin Dinajpur at Balurghat. By the impugned judgement and decree, valuation of the land in question which was assessed by the Land Acquisition Collector was enhanced. Consequently the solatium and the additional compensation were enhanced. The liability to pay interest on such enhanced compensation has also increased. Thus, the ultimate liability to pay the enhanced compensation together with interest thereon falls upon the Requiring Body. Since the Requiring Body was not impleaded in the proceeding before the Land Acquisition Judge, the Requiring Body did not get any opportunity to lead evidence on the issue regarding the actual valuation of the acquired property. The applicants, thus, have sought for leave to prefer an appeal against the said judgement and decree passed by the Land Acquisition Judge, as parties adversely affected by the said judgement and decree passed by the Land Acquisition Judge. The question as to whether the Requiring Body is a necessary party in a proceeding for assessment of compensation in a land acquisition proceeding is not a res integra in view of the decision of the Honble Supreme Court in the case of U.P. Awas Evam Vikas Parishad Vs. Gyan Devi reported in AIR 1995 SC 724 wherein it was held that the Collector and the Court are under an obligation to intimate the local authority or the company of pendency of the proceedings to enable it to lead evidence. It was further held therein that non-appearance by the local authority or company in pursuance of notice sent by the Collector would not absolve the reference court from issuing any notice. It was further held therein that if a local authority or company appears in proceedings and leads evidence as provided by sub-section (2) of Section 50 in proceedings which were initiated earlier, it shall be made party in subsequent proceedings and its non- impleadment shall render the proceedings as invalid. While delivering the said judgement, the Honble Supreme Court made it clear that the directions passed by the Honble Supreme Court in the said judgement will operate prospectively. In view of the aforesaid decision of the Honble Supreme Court which was also followed by the Honble Supreme Court in the subsequent decisions consistently, we are of the view that the applicant being the Requiring Body was necessary party in the reference proceedings under Section 18 of the Land Acquisition Act before the Land Acquisition Judge. as such, we grant leave to the applicants to file this appeal. The application for leave to prefer appeal being CAN 7006 of 2016 thus stands disposed of. Re: CAN 7762 of 2015 (condonation of delay) This is a time barred appeal. There was 3832 days delay in filing this appeal before this Court. Reasons for the delay have been explained by the appellants/applicants in this application for condonation of delay. It is stated therein that though the appellant was the Requiring Body in the instant land acquisition proceedings, but the appellant was never informed about the reference proceedings under Section 18 of the Land Acquisition Act. It was further stated therein that the appellants were not impleaded as parties in the reference case and no notice was even served upon the appellants in connection with the said proceedings. As a result, the appellants/applicants were totally unaware of the proceedings as well as the judgement and decree which was passed by the Land Acquisition Judge in the said suit. It is stated in the leave petition that the appellants came to know about the said proceedings and the judgement and decree passed therein only on 10th February, 2014. Thereafter steps were taken by the appellants for obtaining the certified copy of the impugned judgement and decree and the instant appeal was filed immediately after receipt of the certified copy of the judgement and decree of the court below. After considering the uncontroverted averments made in this application, we allow the application for condonation of delay by condoning delay in filing this appeal. Let the appeal now be registered. The application for condonation of delay being CAN 7762 of 2015 thus stands disposed of. Re: FAT 122 of 2016 Immediately after the delay in filing the appeal is condoned and the appeal is regularized, we are requested by the learned counsel appearing for the parties to consider the appeal on merit by dispensing with the requirement of filing paper book in this appeal. Since the materials which are available before us are sufficient enough to dispose of the appeal itself, we have decided to consider the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. All the parties are represented through their learned counsel before us. Let us now consider the merit of the instant appeal in the facts of the instant case. Admittedly the land in question was acquired by the Land Acquisition Collector for the requirement of the appellant being the Requiring Body. The Land Acquisition Collector published an award on 23rd February, 2001. The land losers felt aggrieved by the award published by the Land Acquisition Collector. On their prayer, a reference was made by the Land Acquisition Collector to the Land Acquisition Judge under Section 18 of the Land Acquisition Act. The said reference proceeding was registered as L.A. Case No. 451 of 2002. The Land Acquisition Judge disposed of the said land acquisition case on contest by enhancing the valuation of the acquired land. Valuation of the acquired land was assessed at Rs.2,00,000/- (Rupees two lakh) per acre for Danga land and Rs.1,75,000/- (Rupees one lakh seventy five thousand) per acre for Dala land only. Direction was given upon the Land Acquisition Collector to pay compensation to the claimants at the aforesaid rate after deducting compensation already paid to them, if any. The Land Acquisition Collector was also directed to pay solatium @30% of the amount of compensation over the enhanced valuation. It was further ordered that a further sum @12% of the assessed amount will also be paid to the claimants for the period from the date of publication of notification and the date of award or the date of taking over possession whichever is earlier. It was also provided therein that the amount of compensation minus solatium money shall carry interest @9% per annum till the date of part payment by the Land Acquisition Collector and the same rate will continue till the final payment is done. The legality and/or propriety of the said judgement and/or decree passed by the learned Land Acquisition Judge in the said proceeding is under challenge in this appeal at the instance of the appellant being the Requiring Body. Here is the case where admittedly the Requiring Body was not impleaded as party in the reference proceedings before the Land Acquisition Judge. No notice was served upon the Requiring Body inviting it to lead evidence on the issue regarding valuation of the acquired land. Thus, the Requiring Body did not get any opportunity to lead evidence to support the valuation which was assessed by the Collector. The consequence of non-impleadment of the Requiring Body in such a proceeding has already been dealt with by the Honble Supreme Court in the case of U.P. Awas Evam Vikas Parishad Vs. Gyan Devi reported in AIR 1995 SC 724 wherein it was held that the Requiring Body is a necessary party in such a proceeding and if a proceeding is concluded without impleading the Requiring Body and without affording the Requiring Body to lead evidence in the said proceeding, the entire proceeding will render invalid. The said decision of the Honble Supreme Court was also followed by the Honble Supreme Court in a subsequent decision in the case of Kanak (Smt) and Another Vs. U.P. Avas Evam Vikas Parishad and Others reported in (2003) 7 SCC

693 wherein it was held that in such cases the High Court should remit the matter back to the Reference Court with a direction that the Requiring Body may be impleaded as a party so as to enable it to cross-examine the witnesses examined on behalf of the claimants and examine its own witnesses and bring on record such other materials as it may deem fit and proper. It was also observed therein that it goes without saying that it would also be open to the claimants to adduce evidence to the contra. In view of the aforesaid decisions of the Honble Supreme Court, we have no hesitation to hold that the impugned judgement and decree passed by the Land Acquisition Judge cannot be retained on record as the said proceeding was concluded without impleading the Requiring Body as party to the said proceeding and also without affording any opportunity to the Requiring Body either to cross- examine the witnesses examined on behalf of the claimants and/or examine its own witnesses. Accordingly, we set aside the impugned judgement and decree and remand the said land acquisition case to the Reference Court with a direction upon the court that the Requiring Body/appellant may be impleaded as party so as to enable it to cross-examine the witnesses examined on behalf of the claimants and examine its own witnesses and bring on record such other materials as it deems fit and proper. It is also made clear that it would be open to the claimants to adduce evidence on the contra. The Reference Court is, thus, directed to reconsider the said reference case afresh in the light of the observations made hereinabove by taking into consideration the materials on record including the evidence already on record and the further evidences which will be brought by the parties in terms of the directions passed hereinabove. Since the proceeding is pending before the Land Acquisition Judge since 2002, we request the Land Acquisition Judge to make all endeavour to dispose of the said proceeding as early as possible but preferably within six months from the date of communication of this order. It is also clarified that in case the Requiring Body wants to file any written objection in the said proceeding, it may do so within the time to be fixed by the Land Acquisition Judge. The impugned judgement and decree are, thus, set aside. The appeal, thus, stands allowed. Re: CAN 7772 of 2015 (Stay) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The said application being CAN 7772 of 2015 is thus deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. (JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. )