High Court · 2012

9. Besides contending that the land under the acquisition proceedin gs had been acquired as per the procedure prescribed by the Act on the request l etter from the Inspector General of BSF Headquarters, Shillong, it has been clai med that the exercise had been undertaken in consultation with the petitioners a nd other inhabitants of the area. It has been stated further that the proposal f or acquisition of the land has been to accommodate the National Disaster Respons e Force, 128 Bn, BSF at Piyabari No.1 village, Barduar Bagan, an initiative firs t of its kind in the North-Eastern region of India for disaster management in th e region. According to the answering respondent, this proposal after being enter tained by the Government of Assam, Revenue (LR & DM) Department, a Notification under Section 4(1) and, thereafter, a declaration under Section 6(1) of the Act were published in the issues dated 22.8.2006 and 20.8.2007 of the Assam Gazette, whereafter, these were published as well in the local newspapers in circulation in the area inhabited by the petitioners and others in occupation of the land i nvolved. That a detailed report on the memorandum dated 7.8.2006 had been submit ted to the concerned State authorities has been mentioned as well.

10. The answering respondent has further stated that the acquisition proceedings have been undertaken strictly in accordance with the provisions of the Act, in course whereof, notices have been duly served on the persons residin g on the land and they were required as well to receive compensation. While dism issing the relevance of the Rabha Hasong Autonomous Council Act, 1995 vis-à-vis the process involved, it has been stated as well that out of 36 Nos. of families affected by the acquisition, 9 are employees of M/s Barduar Tea & Timber Compan y Ltd. (respondent No.5) for whom, it (respondent authority) had already initiat ed steps for rehabilitation. Moreover, 22 families who have residential houses o n the acquired land have been allotted 2 Bighas of land each for homestead as pe r the rehabilitation scheme of the State Government. According to the said respo ndent, the remaining 5 families are encroachers. While denying the imputation of contemplated ouster by force, the answering respondent affirmed that 15 familie s meanwhile have approached the District Administration for release of their com pensation and, accordingly, the amount has been paid.

11. The respondent No.4 in his counter has questioned the maintainab ility of the writ proceedings on various grounds. Alleging in addition to malafi de on the part of the petitioners to scuttle a valid process of acquisition, it has been asserted that the dispute is of civil nature and beyond the purview of scrutiny under Article 226 of the Constitution of India. That having claimed the mselves to be khatian holders they have an alternative forum to espouse their ca use has also been insisted upon to be a factor against the maintainability of th e challenge before this Court. Qua the process of acquisition, it has been averr ed that as per the mandate of the Disaster Management Act, 2005, a National Disa ster Management Authority has been set up principally in order to address all as pects of disaster management and mitigation and management of the situations ari sing out of natural disasters. It has been stated that in order to provide high skilled speedy response to such natural calamities for certain areas the Nationa l Disaster Response Force (for short, NDRF) had been created and for the North-E astern part of India 128 Bn. BSF had been entrusted with the said duty being sta tioned at Guwahati. The answering respondent has averred that with the above ass ignment in contemplation, a requisition was sent by the Inspector General, BSF, Shillong vide letter No. 504/04/05-06/Engg/SHG/BSF/1015-22 dated 27.5.2006 for land measuring 85 acres for setting up the Headquarters of 128 Bn. NDRF with a request to provide a preliminary estimate along with non-encumbrance certificate therefor. Accordingly, a Gazette Notification for acquisition of the land was i ssued by the Deputy Secretary to the Govt. of Assam, Revenue (LR) Department und er Section 4(1) of the Act on 22.8.2006 and the jurisdictional Deputy Commission er also submitted an estimate of compensation amounting to Rs. 5,76,65,320/- for 85 acres of land at Piyabari (1st Phase) under Barduar Mouza in the district o f Kamrup.

12. According to this respondent, on the acceptance of the proposal and on receipt of the estimate and other relevant documents including the No Obj ection Certificate dated 7.9.2006 issued by the Senior Sub Registrar, Kamrup Guw ahati as well as the No Objection Certificate from the owners of the land, the e stimate was forwarded to the office of the SHQ, BSF Engg, DTE, New Delhi on 19.1 2.2006 by the Inspector General, BSF, Shillong. Thereafter, the sanction of the Ministry of Home Affairs, New Delhi for acquisition of land measuring 85 acres w as approved vide order No. 127/04/2005-Engg/BSF/Vol.II/PF1/7907-15 dated 17.8.20 07, whereafter, the aforementioned sum of Rs. 5,76,65,320/- was deposited with the Deputy Commissioner, Land Acquisition Branch vide 128 Bn NDRF (BSF) Letter N o. Engg/777/128/NDRF/07/12427-31 dated 21.8.2007 through Cheque No. 389003 dated 21.8.2007. That this was preceded by a request for the deposit of this amount b y the Deputy Commissioner, Kamrup (R) vide letter No. L.A.18/2006/37/88-89 dated 20.11.2006 has also been stated. The publication of the declaration under Secti on 6(1) of the Act in the Assam Gazette on 20.8.2007 and, thereafter, in the loc al dailies-Agradoot and the Sentinel on 31.8.2007 has been mentioned as well.

13. According to this respondent, though the Deputy Commissioner, Ka mrup LA Branch vide letter No. L.A.18/2006/485 dated 24.9.2007 had directed the territorial Circle Officer to hand over peaceful possession of the acquired land measuring 257 Bighas 0 Katha 13 Lechas of village Barduar Bagan, Mouza Barduar to 128 Bn. NDRF (BSF), citing a possible law and order situation in view of the ensuing Panchayat elections, a decision was taken to hand over encroachment free 164 Bighas 1 Katha 15 Lechas of land to 128 Bn, NDRF. Field verification, howev er, revealed that the acquired land was not free from encumbrances. The 128 Bn N DRF as the first step installed a taking over party on the vacant portion of the land adjacent to the PWD Road awaiting early completion of the acquisition proc ess to facilitate delivery of vacant possession thereof in full. That this party of the BSF has been withdrawn on 21.1.2008 marking absence of any progress in t he land acquisition process has been mentioned. Contending that the answering re spondent has meanwhile deposited the entire amount of compensation as estimated by the State authorities for which it is entitled to be delivered vacant possess ion of the land measuring 257 Bighas 0 Katha 13 Lechas certified to be free from all encumbrances, this respondent has maintained that the present challenge is untenable in law and is liable to be dismissed.

14. The respondent No.5, M/s Barduar Tea & Timber Company Ltd. while claiming itself to be the owner of the land involved has reiterated that out of the writ petitioners only 14 are in possession of some portion thereof and that the others, therefore, are bereft of any locus standi to maintain the impugnmen t herein. It has accused the petitioners of suppressing the material fact that t hey had approached civil Courts on the same issue which have since been dismisse d for non-prosecution. The availability of alternative remedy has also been cite d as a ground against the maintainability of the instant assailment. While dismi ssing any right of the petitioners on the land in question, the answering respon dent has admitted those of the petitioners in occupation of the land as its lice ncees or as share croppers whose occupation was co-terminus with their services with it and has pleaded that no right, title and interest in the land had vested in them by virtue of such occupation. That the petitioners are not covered by t he expression ’persons interested’ under the Act and that they have no right wha tsoever to question the acquisition proceedings has been underlined. That the en deavour to stifle a public project is wanting in bonafide has been mentioned as well.

15. According to the answering respondent, the acquisition proceedin gs having been completed followed by an award of compensation, the impugnment of the process is impermissible in law. That the delay on the part of the petition ers in questioning the validity of the acquisition proceedings dis-entitled them to any relief has been emphasised. The respondent has endorsed as well the publ ication of the notice under Section 4(1) and the declaration under Section 6(1) of the Act in the State Official Gazette on 22.8.2006 and 20.8.2007 followed by the publication thereof in the local dailies-Agradoot and the Sentinel on 16.9.2 006 and 21.8.2007 respectively. According to this respondent, submission of seve ral representations by the petitioners duly demonstrate their notice and awarene ss of the acquisition proceedings and, hence, the question of eliciting their ob jections under Section 5A did not arise as they were not included within the mea ning of the expression ’persons interested’ under the Act. That the land had bee n acquired for setting up of the NDRF Camp, a public purpose of immense signific ance for the region has been mentioned. This respondent maintained as well that it of its own had taken up the issue of rehabilitation of the persons affected a nd has initiated the process of rehabilitation of 9 families. It stated as well that excluding the encroachers others who have residential houses on the land ac quired have also been allotted 2 Bighas of land each by the State Government for their rehabilitation.

16. The petitioners in their affidavits-in-reply have generally reit erated and reaffirmed their assertions in the writ petition. They, however, have emphatically asserted on oath that the land in their occupation and involved in the acquisition proceedings had been declared to be ceiling surplus and, thus, the impugned process was a sham exploit with the connivance of the respondent No .5 for wrongful gain posing itself to be the owner thereof. The petitioners have sought to assert that the grant of khatian to some of them was in view of the f act that they were landless and that the plots in their occupation were within c eiling surplus land. They have dismissed the award made in the acquisition proce edings as unsustainable in law having been passed without following the mandator y requirements of the Act. While clarifying that they are not opposed to the pro ject, they have insisted that the respondent No.5 is not the owner of the land i nvolved and that the representation of their rehabilitation is only an eyewash. That the land being ceiling surplus cannot be available for acquisition in the m anner undertaken has been underlined.

17. In the above matrix of the pleadings, the learned senior counsel for the petitioners has emphatically urged that the impugned proceedings purpor tedly undertaken under the Act being on the face of the record non-est in law, i t is liable to be adjudged illegal, null and void and the consequential orders/n otices/ notifications ought to be annulled as well. Apart from the fact that the Notification dated 22.8.2006 purportedly under Section 4(1) had been issued at a time when the representation dated 7.8.2006 on behalf of the petitioners was a waiting consideration on merits, as admittedly the contents thereof were in Engl ish though published in the local dailies-Agradoot and the Sentinel, the same di d not conform to the mandatory prescription of that provision of the Act renderi ng it non-existent in law. Apart from contending that the Notification under Sec tion 6(1) of the Act also suffers from the same incurable defect, Mr Dutta has urged that the omission of making a proclamation or a public notice in the local ity as enjoined by Sections 4 and 6 of the Act has rendered the acquisition proc eedings invalid. The Notifications under Sections 4 and 6 of the Act having been rendered non-est in view of the inexplicable contravention of the mandatory edi cts of law, irrefutably all steps taken in furtherance thereof ought to be deter mined to be unsustainable as well, he urged. Referring to the various provisions of the Act outlining the scheme for acquisition of land commencing from the pub lication of the notice under Section 4 and the award of compensation, the learne d senior counsel has insisted that in the face of series of legal infirmities vi tiating the same, no delay in the challenge thereof as alleged can either redeem or save the same.

18. Adverting to the pleadings of the respondents as well as the off icial records, Mr Dutta has sought to urge, amongst others, that having regard t o the dates of deposit of the amount of compensation and that of approval of the award it is obvious that the impugned process was undertaken with a pre-determi ned mind in utter disregard to the obligatory provisions of the Act legislativel y designed with utmost care and circumspection for protection of the persons int erested therein. Contending that the land, as is evident from the contemporaneou s materials on record, is ceiling surplus and that the same cannot be acquired u nder the Act without prior compliance of the ordainments of the Assam Fixation o f Ceiling on Land Holdings Act, 1956 (as amended) whereunder the same has to be offered first to the occupiers thereof for settlement, the learned senior counse l has contended that the impugned process is in vivid departure therefrom and is , thus, invalid. According to Mr Dutta, the issuance of khatian to the petitione rs amply corroborates the fact that they had occupied the ceiling surplus land a s Rayats. That this fact is also endorsed by the order dated 31.1.1973 of this C ourt rendered in Civil Rule No. 153/1970 [M/s Barduar Tea & Timber Company Ltd/. -vs- Sub Divisional Officer (Sadar) Guwahati & Ors.] was also underlined.

19. Mr Dutta has further argued that the land being ceiling surplus, the respondent No. 5’s claim of ownership thereof is not only untenable but inf ormed with malafide as well. According to him, the process purportedly evidenced by the Notifications under Sections 4 and 6 of the Act is a mere pretension or a cloak as is evident from the fact that the land had been identified by the res pondent No.4 on being offered by the respondent No.5 which is not the owner ther eof. Referring to the official records in details, the learned senior counsel ur ged that the initiation of the process for payment having commenced even before the publication of the declaration under Section 6(1) of the Act and the release of 50% thereof in favour of the respondent No.5 in haste without completing the process for computation and payment of compensation as contemplated by the Act demonstrates foul play and fraudulent siphoning of public money on collateral co nsiderations. That in doing so the opinion of the highest Law Officer of the Sta te had been disregarded has been underlined as well. The following decisions wer e cited to buttress the above contentions: Syed Hasan Rasul Numa & Ors. -vs- Union of India & Ors., (1991) 1 SCC 40 Khub Chand & Ors. -vs- State of Rajasthan & Ors., AIR 1967 SC 1074 Collector (District Magistrate) Allahabad & Anr. -vs- Raja Ram Jaiswal, Kunwar Pal Singh -vs- State of U.P. & Ors., (2007) 5 SCC 85 J & K Housing Board & Anr. -vs- Kunwar Sanjay Krishan Kaul & Ors., (2011